Illinois Prohibits Employers from Requiring Employees to Provide Social Networking Passwords
By Andrew Crocker – Edited by Michael Hoven
H.B. 3782, 97th Gen. Assemb. (Ill. 2012)
On August 1, Illinois Governor Pat Quinn signed H.B. 3782, which amends Illinois’ Right to Privacy in the Workplace law to prohibit employers from “request[ing] or requir[ing] any employee or prospective employee to provide any password or other related account information in order to gain access to the employee's or prospective employee's account or profile on a social networking website or to demand access in any manner to an employee's or prospective employee's account or profile on a social networking website.” H.B. 3782, 97th Gen. Assemb. (Ill. 2012) (to be codified at 820 Ill. Comp. Stat 55/10(b)(1)). Illinois is the second state to enact such a provision, following Maryland’s passage of a similar bill in April, according to the ACLU.
The governor’s office issued a press release that describes the legislature’s intent in passing the bill.
According to Governor Quinn’s statements at a signing ceremony, the bill reacts to the expanding use of social media and many employers’ practices of requiring current or prospective employees to allow their profiles to be inspected, including private information and photos. The Huffington Post notes that although the prohibition on these practices is absolute, the bill does not keep employers from obtaining information from employees’ publicly accessible profiles, nor does it stop them from banning the use of social networking sites at work entirely.
Finally, the Illinois bill does not limit an employer’s right to “monitor usage of the employer's electronic equipment and the employer's electronic mail without requesting or requiring any employee or prospective employee to provide any password.” H.B. 3782, 97th Gen. Assemb. (Ill. 2012) (to be codified at 820 Ill. Comp. Stat 55/10(b)(2)(B)). It is unclear whether an employer’s use of a keylogger, which could obtain an employee’s password without “requesting or requiring” the employee to provide it, would be prohibited. As previously described in a Digest student comment, employers’ use of keylogger programs is expanding, and may not be illegal under federal and state anti-wiretapping statutes.
Andrew Crocker is a 3L at Harvard Law School who would never use Facebook at work.