Florida businesses can (still) demand your social media passwords.

John Godfrey Saxe was an American poet who said in 1869 that laws, “like sausages, cease to inspire respect in proportion as we know how they are made.”  (It’s worth a link because the quote is typically misattributed to Otto von Bismarck.)  Sure enough, as the Florida Legislature has shown in the past year, the legislative process today can be as unappealing as this wilted Burger King Sausage, Egg & Cheese Croissan’wich.

burger-king-crossiantwich-01
I know what it looks like, but the problem is that it doesn’t feel like such a bad decision until you’ve eaten it.

Like any drive-through breakfast, the legislative process usually starts with the best of intentions.  Florida State Senator Jeff Clemens (D-Lake Worth) introduced CS/SB 198: Social Media Privacy, a bill described as:

Prohibiting an employer from requesting or requiring access to a social media account of an employee or prospective employee; prohibiting an employer from taking retaliatory personnel action for an employee’s failure to provide access to his or her social media account; prohibiting an employer from failing or refusing to hire a prospective employee who does not provide access to his or her social media account, etc.

Most of this bill is good stuff, so who would oppose it? According to the Florida Sun Sentinel, many of Florida’s business lobbies “are opposing the bill because it allows for employees who are wrongfully required to turn over social media access to sue the employer. They also said it could stand in the way of internal investigations in cases such as sexual harassment.”

It’s no surprise that those limited by this law would prefer it to be non-enforceable.  But in response, the sausage makers decided to mix the following provision into the very end of the bill:

This section does not prevent an employer from requesting or requiring an employee to disclose a username, password, or other means of accessing a social media account used for business purposes.

According to the Sun Sentinel, Clemens explained the amendment as a compromise that “allows businesses to still monitor accounts used for their own business.”  The ABA Journal reported the response:

Sen. Nancy Detert (R-Venice), who chairs the Senate Commerce and Tourism Committee, said the amendment contradicts the purpose of the bill.  “You should be able to say ‘I hate my boss.’ It’s like inviting someone to your dinner table,” she said. “Where does freedom stop and intrusion begin?”

So what constitutes a business purpose, anyway?  That’s the rub – nobody knows.  What if I don’t hate my boss, but instead like her enough to add her as a friend and remark on the stories she shares now and again?  And if an internal sexual harassment investigation is reason enough to demand an employee’s password, what about an internal investigation of a defamation claim?  If I worked for Burger King, a corporation headquartered in Miami, Florida, would I have subjected myself to my employer’s curiosity about my Facebook profile by comparing the Croissan’wich pictured above to the unpalatable aspects of the legislative process?

Maybe none of this is covered as a business purpose, or maybe all of it is covered, rendering the bill meaningless.  Either way, because the language of the amendment does not define business purposes, the entire bill is now vague enough to effectively require a judge to interpret it.

Florida has an unfortunate track record when it comes to turning popular ideas into poor-quality legislation.  Last year, the Florida Legislature may have unintentionally banned all computers with access to the internet when, on April 4, 2013, it passed CS/HB 155: Prohibition of Electronic Gambling Devices, a bill intended to stop electronic gambling in Internet cafes.  Unfortunately, the text of the bill amended the legal definition of a slot machine to include:

Any machine or device or system or network of devices that is adapted for use in such a way that, upon activation, which may be achieved by, but is not limited to, the insertion of any piece of money, coin, account number, code, or other object or information, such device or system is directly or indirectly caused to operate or may be operated and if the user, whether by application of skill or by reason of any element of chance or any other outcome unpredictable by the user….

The bill added a rebuttable presumption just in case this definition wasn’t expansive enough:

There is a rebuttable presumption that a device, system, or network is a prohibited slot machine or device if it is used to display images of games of chance and is part of a scheme involving any payment or donation of money or its equivalent and awarding anything of value.

I went on a road trip out west last year and couldn’t believe that these Judge Judy slot machines existed.  Suppose that during some downtime at work, I copied this picture from my Facebook and posted it here from my work computer.  Am I a straight-up criminal by rebuttable presumption, or merely someone whose employer has the right to demand my Facebook password?

vegas crime

To be fair, it’s hard to regulate something as nebulous as the Internet.  It’s not exactly something tangible, like a big truck – it’s always been more like a series of tubes.  Either way, this law is now before a federal court with Alan Dershowitz arguing against it on a host of different constitutional claims, as it probably ought to be, given that it was hastily drafted and bans local games of chance while doing nothing to stop the pernicious effect of McDonalds Monopoly on public welfare.

Many things must run through the mind of a legislator working to push a bill through a collective body of 120 lawmakers, but one has to wonder whether the implications of bills and amendments like this are really considered.  Of the now toothless bill to protect Florida’s employees from intrusive employers, Senator Clemens said “I don’t deny that there isn’t some gray area there,” so presumably he gave it some thought.  But does that render the bill anything other than toothless?

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