It’s got to be annoying for judges when lawmakers write laws that are designed to be so freaking vague that courts will be forced to fix them once the inevitable lawsuits come around.
Florida lawmakers are trying to make your Facebook account safe from your boss who wants to get his or her Orwellian hands all up in your personal business. The legislation prohibits employers from demanding your social media passwords as a condition of employment.
BUT… the business lobby has been able to force an amendment that still allows employers to demand your passwords if your account is used for a “business purpose.” What’s a “business purpose”? Nobody knows. It’s probably going to be whatever your boss says a “business purpose” is. Then, they’ll fire you, you’ll sue, and a judge will have to figure it all out, because the legislature couldn’t get its act together….
Florida’s powerful business lobby has forced an amendment to a bill that would have prevented employers from gaining access to employees’ (or perspective employees’) social media accounts, as reported by the Florida Sun Sentinel (gavel bang: ABA Journal):
[The Florida] Senate’s Commerce and Tourism Committee amended the bill Monday to allow companies to still demand such access if the social media accounts are used “for a business purpose.”
Currently, Florida businesses can ask for social media log-ins and fire employees who don’t provide them….
The bill, SB 198, would also bar employers from requiring access to the accounts if they aren’t available to the general public — for example, a Facebook account only available to “friends” through the medium.
Employers couldn’t retaliate against workers or refuse to hire them based on refusal to provide social media access.
Can we just take a step back and think about how many lawsuits this dumb, muddled legislation will create? I’ve got a “personal” Twitter account (@ElieNYC). But I also tweet from the company account (@atlblog) for “business,” and I also set up, and am the only person with the password to, the new ATL Redline account I created (@ATLRedline). And sometimes I retweet stuff from ATL or Redline on my personal account. Does that mean that my CEO can ask for my personal Twitter login? Can Gawker? Am I required to divulge my personal direct messages with @BoobsDaily just because I retweet some ATL stories sometimes?
And that’s just Twitter, which every non-idiot understands is pretty public anyway. With Facebook, ye Gods, of course I don’t expect my boss to be able to dive into my Facebook account just because I occasionally share ATL stories on my personal feed. I don’t want the wealthy, white investors in Breaking Media to know just how much I really hate wealthy white people.
As one of the Florida lawmakers who accepted this amendment from the business lobby admitted, “I don’t deny that there isn’t some gray area there.” This seems to be the very definition of bad lawmaking. They’re letting lobbyists write the law in a way that makes it effectively toothless — unless a judge “legislates from the bench” to fix it.
And judges will have to fix it. By going out of their way to not define “business purposes,” Florida is begging the courts to define it for them. So later, I don’t want to hear any bitching from Florida about “activist judges.” Judges are forced to be “activist” when the legislature abdicates its responsibility for writing clear laws that actually make sense.
Florida businesses can demand your social media logins. Should that be legal? [Florida Sun Sentinel]
Bill to ban employer demands for social media passwords is amended to allow limited access
Senate Bill 198: Social Media Privacy [Florida Senate]