Nearly half of the states in the U.S. have adopted laws to prevent employers from accessing their employees’ private social-media accounts. But Gov. David Ige this week announced his intent to veto such a bill for Hawaii.

House Bill 1739 would have prevented an employer from requiring, requesting or coercing an employee or applicant to hand over usernames and passwords for social-media accounts. The protections wouldn’t have applied to electronic devices or accounts provided by the employer.

In a press release Monday, Ige said he planned to veto the bill because it was unclear whether Hawaii employers ask for social-media account logins so frequently that the state should intervene. The release also noted that the Department of Labor and Industrial Relations wasn’t given the additional funding it would need to enforce the bill. 

Employers who violated the bill would have been fined $25-$100.
Employers who violated the bill would have been fined $25-$100. PDPics

The governor’s office didn’t provide anyone for comment Tuesday, but pointed to the rationale in Ige’s press release.

Twenty-three states and Guam have laws that prohibit employers from accessing personal social-media accounts, according to the National Conference of State Legislatures. Some employers say that access to social-media accounts is necessary to protect the employer or their private information, according to NCSL.

The bill’s proponents haven’t taken kindly to Ige’s rejection.

Rep. Matt LoPresti, who introduced HB 1739, said “privacy rights are paramount in the digital age” and Hawaii’s laws have lagged behind the development of technology. He said it’s a misconception that anything available on social media should be public, pointing to private message features.

A similar bill was introduced last year but died because of a scheduling mishap, LoPresti said.

Out Of Touch?

He said this year’s bill incorporated suggested improvements from last year and that for Ige to suggest Hawaii employers aren’t accessing private accounts of employees or applicants was “out of touch.” LoPresti equated logging in to the social-media accounts of applicants to “cyberstalking.”

“I don’t know why the governor would support employers spying on their employees,” he said.

The department suggested some wording changes to address its own concerns about enforcement, but LoPresti said he was surprised Ige listed financial resources for the department as a concern.

LoPresti said many people are unaware that current law lets employers view personal emails, information or correspondences on an electronic device of an employee while working.

Though Ige questioned the frequency of such issues in Hawaii, LoPresti said he knows of incidents in Hawaii where an employee’s right to privacy has been violated. He declined to go into detail.

Despite Ige’s intent to veto, LoPresti said he remains determined to see the bill through this year, whether that means trying to override a veto or working with Ige. The Legislature shouldn’t have to go through the process a third time, he said. 

“It’s rather confusing why the governor would consider vetoing something that has had unanimous support this year and last year,” he said.

Mandy Finlay, advocacy coordinator for the American Civil Liberties Union of Hawaii, also said she was “incredibly disappointed” to see the bill on Ige’s intent to veto list.

Employers were allowed to look at publicly available information on social media sites under the bill.
Employers were allowed to look at publicly available information on social-media sites under the bill. Pexel

Noting that the bill garnered bipartisan support at the Legislature and didn’t receive a single “no” vote, Finlay called it “uncontroversial, to say the least” with “overwhelming support.”

It’s common sense that employers shouldn’t have access to private messages and posts on social media, which people can treat like email, she said.

To Ige’s rationale that it was “unclear” whether state intervention was necessary, Finlay said employees have a legally guaranteed right to privacy and if 23 other states believed the law was necessary, Hawaii should follow suit.

Regarding the fiscal concerns Ige raised about enforcing such a law, Finlay said funding wasn’t an issue raised at the Legislature or in testimony by the department. If enforcement was a problem, Finlay said, the ACLU would support a “reasonable measure to aid in enforcement.”

Finlay said she was unaware of any enforcement problems in other jurisdictions with laws that prevent employers from accessing employee social media accounts.

Protecting Employers, Too

Those laws can protect employers too, she said. An applicant who provided his or her private social-media login but wasn’t hired potentially could sue the employer for discrimination based on ethnicity, sexual orientation or pregnancy — information employees are legally allowed to keep private but that could be referred to on their private social-media accounts.

Although she wasn’t aware of any incidents reported over the past year to the ACLU, Finlay said employees may be too intimidated to report their experiences and Hawaii should get ahead of the game regardless.

“Many victims of this type of employer invasion of privacy are not going to be willing to come forward,” Finlay said. “And that’s when it’s the duty of the Legislature to step in.”

ACLU of Hawaii has joined LoPresti in the call for HB 1739 to become law despite Ige’s declared intent to veto. In support, it launched a social-media campaign.

LoPresti’s measure was co-introduced by 18 other representatives, including Speaker Joe Souki, Vice Speaker John Mizuno, Majority Leader Scott Saiki and Judiciary Committee Chair Karl Rhoads.

Not a single legislator voted with reservations or against the bill.

In addition to the ACLU of Hawaii, the Hawaii Civil Rights Commission and LGBT Caucus of the Democratic Party of Hawaii supported the bill, but others expressed concerns.

In written testimony, the Chamber of Commerce Hawaii said it had not seen “empirical evidence that private employers routinely request access” to social media accounts and that “unnecessary laws create unintended consequences.”

Officials at Hawaiian Electric, which routinely monitors and logs all computer activity of its employees, also expressed concern that an earlier version of the bill’s language could force the company to alter its electronic records for employees who access personal accounts on their work devices.

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