Delaware Social Media Privacy Law Moves Ahead

At our Annual Employment Law Seminar last week, I spoke about the “Facebook Privacy” bill that was then pending in Delaware’s House of Representatives.  The bill passed the House on later that day and is now headed to the Senate.  For those of you who weren’t in attendance last week, here’s a brief recap of the proposed law. 

The stated purpose of HB 109 is to protect individuals’ privacy in their personal social media accounts.  Generally speaking, HB 109 would prohibit employers from requiring or requesting that an employee or applicant give the employer access to their personal social-media accounts-either by giving up their passwords or by logging in and letting the employer take a look (also known as “shoulder surfing”). 

As we all know, though, with any law, the devil is in the details.  And there are, not surprisingly, a few devilish details.  For example. . .

HB 109 prohibits an employer from asking an employee (or applicant) from disclosing “a username . . . for the purpose of enabling the employer to access personal social media.”  As written, that would mean that an employer could not ask a candidate what his or her Twitter handle is.  Twitter is, generally speaking, a publicly available site. 

So an applicant could have a public Twitter account, where he tweets racist or sexist speech or talks about how he likes to steal money from his current employer, but the employer wouldn’t be able to ask about it?  Huh?  I supposed we’d just have to wait till discovery in a lawsuit before we could ask for that (public information)?  Not my favorite part of this law.

There are other confusing parts of HB 109 that I think likely are unintended consequences of the legislation.  But, with 38 votes in favor and none against, it appears that the unintended consequences are well on their way to becoming law.  We’ll see what the Senate has to say about it and will be sure to keep you updated.  In the meantime, you can track HB 109 here.

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