BILL ANALYSIS �
AB 25
Page 1
ASSEMBLY THIRD READING
AB 25 (Campos)
As Amended May 1, 2013
Majority vote
JUDICIARY 8-2 PUBLIC EMPLOYEES 7-0
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|Ayes:|Wieckowski, Alejo, Chau, |Ayes:|Bonta, Allen, Harkey, |
| |Dickinson, Garcia, | |Jones-Sawyer, Mullin, |
| |Gorell, Muratsuchi, Stone | |Rendon, Wieckowski |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Wagner, Maienschein | | |
| | | | |
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APPROPRIATIONS 16-1
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|Ayes:|Gatto, Harkey, Bigelow, | | |
| |Bocanegra, Bradford, Ian | | |
| |Calderon, Campos, | | |
| |Donnelly, Eggman, Gomez, | | |
| |Hall, Ammiano, Linder, | | |
| |Pan, Quirk, Weber | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Wagner | | |
| | | | |
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SUMMARY : Seeks to clarify the Legislature's intent last year
that the prohibition barring employers from requiring or
requesting an employee or prospective employee to disclose their
private username or password for the purpose of accessing their
personal social media accounts applies to both public and
private employers. Specifically, this bill :
1)Prohibits public employers from requiring or requesting an
employee or applicant for employment to disclose a username or
password for the purpose of accessing personal social media,
to access personal social media in the presence of the
employer, or to divulge any personal social media content.
2)Defines, for the purposes of this chapter, "public employer"
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as the state, a city, a county, a city and county, or a
district.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, negligible fiscal impact, as the bill simply
clarifies a recently enacted statute that itself had negligible
fiscal impact.
COMMENTS : Last year the author's AB 1844, Chapter 618, Statutes
of 2012, was ultimately approved by the Legislature with
bipartisan broad support and signed by the Governor. That bill
prohibits an employer from requiring or requesting an employee
or job applicant to disclose a username or password for the
purpose of accessing his or her personal social media, to access
his or her personal social media in the presence of the
employer, or to divulge any personal social media content. When
that bill proceeded through the Legislature, it was assumed in
the legislative analyses that the measure was intended to and
would apply to both public and private employers. However after
the bill was chaptered, the author was advised that current case
law is not crystal clear on this point. This bill merely seeks
to do what was assumed the Legislature did last year -- clarify
that public employees as well as their private counterparts are
covered by this important consumer privacy protection.
The states of Maryland, Illinois and Michigan passed similar
laws last year prohibiting employers from requiring or
requesting access to an employees' personal social media
accounts. In addition, twenty-eight states, including, but not
limited to, Iowa, Hawaii, Massachusetts, New York, Oregon and
Washington, have introduced legislation this year to prevent
employers from requiring disclosure of, or requesting access to,
personal social media accounts.
Some in law enforcement management have requested an exemption
in the measure on the grounds that they want to see what
applicants and officers say on their private social media
account. However, no other states who have these laws have
concluded such an exemption is merited and the several
committees who have considered this exemption request by law
enforcement have rejected the need for it.
In this regard, it is important to note that law enforcement
requires prospective employees to submit to an aggressive
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background investigation process to protect public safety in
order to gain employment as a public safety officer, which may
include completion of a detailed history statement, submission
to a polygraph, and other requirements. For example, the hiring
process for entry-level police officer candidates for the City
of Roseville, in Placer County, includes a background
investigation. The background investigation process includes a
completion of a detailed personal history statement in the
applicant's own handwriting, they are required to submit
original certified copies of birth certificates, high school and
college transcripts, and an interview by a background
investigator. In addition, the applicant is required to submit
fingerprints and submit to a CVSA, a computerized voice stress
analysis test, similar to a polygraph.
Law enforcement applicants with the Los Angeles Police
Department are required to complete a personal history form as
part of the background investigation portion of the selection
process, which includes providing detailed information regarding
prior employment, past residences, education, military service,
personal information related to finances including current
assets and liabilities, tattoo information, marital status,
children, a list of family members that will be contacted and
asked to comment upon the applicant's suitability for a position
in law enforcement and a list of seven references, not including
family members, that have known the applicant for at least two
years.
Thus, it would appear that already existing rigorous background
investigation screening tools would reveal any existing
discriminatory animus or other dangerous propensities of
prospective applicants to law enforcement agencies.
In addition, not only would a possible law enforcement exemption
reportedly be unprecedented across the country in these kinds of
privacy protection laws, it would also potentially be found to
be unconstitutional.
As noted, the Fourth Amendment provides that "the right of the
people to be secure in their persons, houses, papers and
effects, against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or Affirmation, and particularly
describing the place to be searched, and the persons or things
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to be seized." (United States (U.S.) Constitution 4th
Amendment)
According to the Supreme Court in Katz v. United States, a
person has a constitutionally protected reasonable expectation
of privacy from an electronic intrusion into a place that is
private-an invasion into a constitutionally protected area by
federal authorities is presumptively unreasonable in the absence
of a search warrant supported by probable cause. (Katz v.
United States (1967) 389 U.S. 347 (concurrence Harlan, J.).)
Under the 'reasonable expectation of privacy' test, a person
must have exhibited an actual (subjective) expectation of
privacy, and the expectation must be one that society is
prepared to recognize as "reasonable." (Ibid.)
Additionally, the Court noted that the Fourth Amendment protects
people, not places. What a person knowingly exposes to the
public, even in his own home, is not a subject of Fourth
Amendment protection. But what he seeks to preserve as private,
even in an area accessible to the public, may be
constitutionally protected. (Id. at 351.) (See United States
v. Ganoe (9th Cir. 2008) 538 F.3d 1117, 1127 [finding no
reasonable expectation of privacy in personal computer files
accessible to anyone using the peer-to-peer filing trading
network.].) (See also United States v. Gines-Perez (2002) 214
F.Supp.2d 205, 224-26 [finding no reasonable expectation of
privacy in a photograph available on a publicly accessible Web
site.].)
In this instance, a prospective employee's or current employee's
privacy rights under the Fourth Amendment will be analyzed as to
whether an employee has a 'reasonable expectation of privacy.'
An employee would not, for example, appear to hold a 'reasonable
expectation of privacy' in the content of their social media
page (i.e., a post to their Facebook Wall) because they have
typically knowingly exposed this content to the public.
However, the fact that Facebook, for example, requires a
username, and is password-protected, would appear strongly to
lean in favor of a court finding that some form of 'reasonable
privacy expectation' exists specifically in the 'username and
password' itself-which is distinguishable from any social media
content available to the public to see.
AB 25
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Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334
FN: 0000493