Too Much Too Soon? A Case for Hesitancy in the Passage of State and Federal Password Protection Laws

Recently, significant attention has been given to employers’ concern and involvement over employees’ use of social media. The amount of attention given to social media has resulted in a number of proposed federal laws and multiple state laws discussing employers’ involvement and participation in employees’ social media use. The purpose of this note is to advocate for a more hesitant legislative stance toward social media password protection laws in an effort to avoid unnecessarily over-legislating in an area of privacy law that is still developing. While the author does not make an outright rejection of such legislation, the author argues that the speed and political vigor with which lawmakers are moving forward with such statutes raises the risk of statutory ambiguity, confusion amongst affected parties, and unnecessary burdens on employers. The note provides a thorough review of current trends in employers asking for social media login information, current legislation protecting employees’ social media use, and proposed legislation meant to combat an employer’s ability to obtain social media information.