State lawmakers are considering a bill that would prevent employers from requesting or requiring employees or job applicants to hand over log-in and password information for their personal or social media accounts.
The measure would also prevent employers from disciplining employees or prospective employees for not complying with such a request.
The Honolulu and Maui police departments opposed the original draft of House Bill 713 at a Feb. 8 hearing before the House Labor and Public Employment Committee because it would have prevented law enforcement agencies from requesting personal account information from applicants as part of in-depth, routine background checks.
That committee inserted into the bill an exemption for law enforcement agencies that would allow them to request user names and passwords for social media or other personal accounts, but the House Judiciary Committee removed that addition Thursday.
"Law enforcement will still be able to do background checks on their new employees, which they need to and have to do," Rep. Karl Rhoads (D, Chinatown-Iwilei-Kalihi), chairman of the Judiciary Committee, said to committee members when proposing the change. "But my concern is that being able to get into people’s social media accounts is very close to going through people’s mail."
Rep. Derek Kawakami (D, Hanalei-Princeville-Kapaa) voiced concern over taking out the law enforcement exemption.
Rhoads agreed that police departments need "be more intrusive than most employers," but reiterated his concern that without the proposed legislation, they are "being given a search warrant to just dig around in someone’s private affairs without any inhibition whatsoever."
Rep. Sharon Har (D, Kapolei-Makakilo), vice chairwoman of the Judiciary Committee, agreed with Kawakami and questioned whether online posts can ever truly be private.
"In my opinion privacy and social networking seem somewhat oxymoronic," Har said. "People have a social network, they’re involved in social networking, because they want the public to know about their lives, and so to not carve out an exception for law enforcement — I have serious reservations about this."
"In response, I would just say that there are different levels of access into, for example, a Facebook account," Rhoads said. "What this bill does is says you can’t force an employee to hand over the password or user name, (but) there’s nothing to stop an employer from going online and looking up on Facebook and seeing what you’re putting out there."
The American Civil Liberties Union of Hawaii testified in support of the bill at both of its hearings and noted the police practices violate Facebook’s own policies.
Among the 10 commitments that Facebook users agree to is to "not share your password (or in the case of developers, your secret key), let anyone else access your account, or do anything else that might jeopardize the security of your account," the ACLU said in its written testimony.
The bill also aims to prohibit employees from requiring employers or prospective employees to access personal accounts in the presence of the employer.
Employers requesting personal account information to investigate allegations of misconduct or violations of the law are exempt from the bill’s prohibitions.
The bill now heads to the full House for approval before being passed to the Senate for consideration.
The Senate version of the bill — Senate Bill 207 — is in position to be heard by the Senate Judiciary and Labor Committee, but legislators are approaching a procedural deadline that could soon kill the bill if that committee doesn’t hear it.
