A Risk Not Worth The Reward: The Stored Communications Act And Employers’ Collection Of Employees’ And Job Applicants’ Social Networking Passwords

NICHOLAS D. BEADLE

Recent news reports have documented how some employers have collected social networking passwords from employees and job applicants in an attempt to evade privacy protections that might prevent them from tracking employees and applicants’ online activity.  The Federal Stored Communications Act (“SCA”) requires an employer to secure an employee or applicant’s knowing and voluntary authorization before she can view the employee or applicant’s social media account, with recent case law emphasizing that compelled authorization is not voluntary authorization.  These password collection policies have sparked public outrage, resulting in their retraction before litigation can test whether they are SCA compliant. This Note argues that because employers’ direct demands and requests for passwords are apt to compel disclosure, employers can only access an employee or applicant’s social networking account when she volunteers the password or when the employer provides her the ability to limit when and how the employer can view the information in her account.

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