Social networking password bill introduced in Congress takes different approach than state laws

We've been waiting to see the federal social networking password protection bill. Though it was introduced into the 113th Congress early this month by Representative Eliot Engel, it's taken some time for Congress to get the bill on the Library of Congress "Thomas" site.

PasscodeBut it's up now, and, again, it's called the "Social Networking Online Protection Act," H.R. 537.

A quick Deltaview check of H.R. 537 against the identically named bill introduced by Rep. Engel in the last Congress shows that the two are identical; so, we could have been looking at the prior bill without wasting effort.

In any case, here's what I take to be the gist of it:

"It shall be unlawful for any employer--

"(1) to require or request that an employee or applicant for employment provide the employer with a user name, password, or any other means for accessing a private email account of the employee or applicant or the personal account of the employee or applicant on any social networking website; or

"(2) to discharge, discipline, discriminate against in any manner, or deny employment or promotion to, or threaten to take any such action against, any employee or applicant for employment because--

"(A) the employee or applicant for employment refuses or declines to provide a user name, password, or other means for accessing a private email account of the employee or applicant or the personal account of the employee or applicant on any social networking website; or

"(B) such employee or applicant for employment has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding."

Like all of the laws already on the books in six states, the federal bill would protect both employees and job applicants. Unlike most of those state laws, the bill would also protect passwords to email accounts.

What's a "social networking website" under Rep. Engel's bill?

"[A]ny Internet service, platform, or website that provides a user with a distinct account--

"(A) whereby the user can access such account by way of a distinct user name, password, or other means distinct for that user; and

"(B) that is primarily intended for the user to upload, store, and manage user-generated personal content on the service, platform, or website."

Very different from any of the state laws and state bills we have looked at so far. Correct me if I'm wrong, but I think this is the only legislative definition (operative or proposed) that supposes the user-generated nature of content should be distinctive. There is also a vague notion of "intent" in this definition. As I recall, most or many of the state definitions endeavored to describe how a social networking site actually functions, rather than appeal to the uses for which a site was "intended." (Invocations of intention are always punts to the courts.)

I doubt our graders will find the definition of "social networking" in this bill to be adequate.

One thing Venkat Balasubramani, in particular, will like about the definition in Rep. Engel's bill, I think: the qualifier "personal" with respect to the social networking account to be protected from employers. That's a critical distinction to make, insofar as (a) employers have legitimate interests in social networking accounts they own and employees maintain in the course of employment, and (b) many accounts mix business and personal interests.

Features of the federal bill not covered here: the penalties proposed to be imposed or imposable on employers for violating the legislation (is this really a matter for federal law?); and the aspects of the bill that pertain to educational institutions and the protection of student passwords.

Photo: Pieter Ouwerkerk / Flickr.


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