Bill establishing social media privacy protections tabled for further study

Dick Sears

Sen. Dick Sears, chair of the Senate Committee on Judiciary. VTD/Alan Panebaker

The Senate voted unanimously on Thursday to study how Vermont can protect both job seekers and workers from employers who’d like to snoop into private social media accounts.

The decision comes after pressure from law enforcement and the Shumlin administration to delay passage of a bill this year. Privacy advocate Allen Gilbert of the ACLU-VT told VTDigger last week that opponents were foisting a arguably unnecessary study upon lawmakers.

“The original bill we feel was turned from a job applicant protection bill to an employer surveillance bill,” Gilbert said last week. “That resulted in the bill being sidetracked to a summer study committee because of all the complicated issues involved with employers monitoring employees’ habits while at work.”

Recently, Gilbert suggested to the Senate Economic Development Committee that the bill, (S.7), drop all mention of employees, and instead focus squarely on job applicants and shield their social media passwords, as originally intended.

“That was very easy to do, and we even agreed that for the time being, job applicants for positions at the Department of Public Safety could be exempt,” continued Gilbert, “even though we don’t agree with that.”

But instead of passing legislation this year and further studying only specific exemptions to a general ban on employers demanding Facebook passwords, or the difficult topic of monitoring work computer use, Gilbert said the whole topic has been delegated to a study committee.

The bill’s original sponsor, Sen. Dick Sears, D-Bennington, said on the Senate floor Thursday that six other states have laws similar to his initial legislation. But he also said he recognized there were “issues” in extending protections to employees.

“I realize there’s issues with employees,” said Sears. “But applicants, other states are recognizing the need to protect this personal information…It doesn’t stop here, Mr. President [Pro Tem]. I think we’re going to see more and more bills having to do with personal privacy and the protection of privacy.”

A pair of late amendments on the Senate floor from Sen. Peter Galbraith, D-Windham, also sought to protect personal computers, emails and phone records, from intrusion from employers, if that data was created before a job applicant is hired.

“In the 21st century, email, text messages are methods of communication, among people, friends, lovers, parents to children,” Galbraith said in remarks on the Senate floor. “And if you open this door, to allow an employer to request this information, there’s no concept of privacy at all.”

Although Senators unanimously passed an amendment protecting the personal emails, accounts and phone records of job seekers, the Senate Economic Development committee had voted 4-1 earlier against identical protections for employees.

Galbraith eventually withdrew this second amendment, despite attempts to salvage it, after fellow senators peppered him with difficult questions. The provision would have protected employees already on the job from potential disclosure of old personal records.

“If I took a photo of a zebra in my pajamas, would that be equivalent to the telephone created prior to employment? I’m trying to figure out what that means,” said Sen. Ginny Lyons, D-Chittenden, in one bizarre moment.

Others poked holes in Galbraith’s arguments by questioning whether personal records included tax or financial records that employers could request, or whether computers manufactured before a new job started would be unintentionally exempt.

Although many lawmakers criticized Galbraith’s second amendment as hastily written and overly broad, the general thrust of the employee privacy protections had some support. Kevin Mullin, a Rutland Republican, said in an interview that “I don’t think that employers should be accessing employees’ personal accounts.” But he cited conflicts with federal law governing people who deal with financial securities, and potential exemptions for police, as complications.

“It’s much better if we get a fully thought-out process, that brings us back a report, than just passing something, because we feel in our guts that they shouldn’t be doing that,” he said.

Earlier on Thursday, Julio Thompson from the attorney general’s office told Mullin’s Senate committee that they hadn’t heard any complaints that employers do in fact pry into personal records, leading one lawmaker to call Galbraith’s proposal a “solution in search of a problem.”

Kate Duffy, the commissioner of the Department of Human Resources, also raised concerns that internal staff investigations sometimes need to demand records from personal, and not work, accounts – for instance, if an employee lies about his credentials during the hiring process.

Previously, public safety commissioner Keith Flynn sought to exempt state trooper candidates from this legislation, arguing that the social media accounts of those entrusted with firearms need to be thoroughly screened.

Nat Rudarakanchana

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