A00443 Summary:

BILL NO    A00443D

SAME AS    SAME AS S02434-D

SPONSOR    Dinowitz (MS)

COSPNSR    Jaffee, Crespo, Lavine, Colton, Arroyo, Zebrowski, Scarborough,
           Titone, Hooper, Rosenthal, Galef, Kavanagh, Weprin, Abinanti, Thiele,
           Clark, Otis

MLTSPNSR   Brennan, Cook, Glick, Gottfried, Hikind, Jacobs, McDonough, Millman,
           Peoples-Stokes, Raia

Add S201-g, Lab L; add S115, Ed L

Prohibits an employer or educational institution from requesting or requiring
that an employee, applicant or student disclose any user name, password, or
other means for accessing a personal account or service through specified
electronic communications devices.
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A00443 Memo:

BILL NUMBER:A443D

TITLE OF BILL:  An act to amend the labor law and the education law,
in relation to prohibiting an employer or educational institution from
requesting or requiring that an employee, applicant or student
disclose any user name, password, or other means for accessing a
personal account or service through specified electronic
communications devices

PURPOSE OR GENERAL IDEA OF BILL:  This bill would prohibit employers
and educational institutions from requesting or requiring user name
and login information including passwords as a condition of hiring,
employment status, for use in disciplinary actions, as well as
admission decision or enrollment status.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1 amends the labor law by adding a new section, 201-g that
would prohibit employers from requesting or requiring access to
personal electronic communication accounts of prospective or current
employees. This section also allows for specific exemptions to the law
when employers would be allowed to request the information.

Section 2 amends the labor law by adding a new section 115 which would
prohibit educational institutions as defined by the section, from
requesting or requiring access to personal electronic communication
accounts of prospective of current students. This section also allows
for specific exemptions to the law when educational institutions would
be allowed to request the information.

Section 3 sets the effective date.

JUSTIFICATION:  Employers and educational institutions, universities
in particular, are beginning to use various types of new tools in
decisions dealing with the hiring, admittance and acceptance, and
disciplinary actions regarding prospective and current employees and
students. Recently, there have been reports of employers demanding
login information, including username and password information to
popular social media websites such as Facebook, Twitter as well as
login information to email accounts and other extremely personal
accounts. This information is being used as a condition of hiring or
acceptance to a college, as well as promotions, lateral movement
within companies and in matters relating to disciplinary action
including, but not limited to, firing of individuals.

This type of request can lead to issues of unfair and discriminatory
hiring and admissions practices and constitutes a serious invasion of
privacy on the behalf of the employer or school. Employees have the
right to make this information either public or private through the
websites and they should have every right to maintain this privacy
when it comes their work place, classroom, or during an interview or
admissions process. In these economic times many people do not have
the option to walk away from a job and are forced to submit to this
request for fear they will not be hired otherwise. This bill would
remedy this issue and leave consumers with their right to privacy and
reduce the risk of unfair and discriminatory hiring and admissions
practices.


PRIOR LEGISLATIVE HISTORY:  2011-12 - A.9654- Passed Assembly/S.6831-
Referred to Labor

FISCAL IMPLICATIONS: None to the State.

EFFECTIVE DATE:  This act shall take effect on the 180th day after it
shall have become law.
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A00443 Text:

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                        443--D
                                                               Cal. No. 551

                              2013-2014 Regular Sessions

                                 I N  A S S E M B L Y

                                      (PREFILED)

                                    January 9, 2013
                                      ___________

       Introduced by M. of A. DINOWITZ, JAFFEE, CRESPO, LAVINE, COLTON, ARROYO,
         ZEBROWSKI,  SCARBOROUGH,  TITONE,  HOOPER, ROSENTHAL, GALEF, KAVANAGH,
         WEPRIN, ABINANTI, THIELE, CLARK, OTIS -- Multi-Sponsored by --  M.  of
         A.  BRENNAN,  COOK, GLICK, GOTTFRIED, HIKIND, JACOBS, McDONOUGH, MILL-
         MAN, PEOPLES-STOKES, RAIA -- read once and referred to  the  Committee
         on Labor -- reported and referred to the Committee on Codes -- commit-
         tee  discharged, bill amended, ordered reprinted as amended and recom-
         mitted to said committee -- again reported from  said  committee  with
         amendments,  ordered  reprinted  as  amended  and  recommitted to said
         committee -- recommitted to the Committee on Labor in accordance  with
         Assembly  Rule  3, sec. 2 -- reported and referred to the Committee on
         Codes -- committee discharged,  bill  amended,  ordered  reprinted  as
         amended  and recommitted to said committee -- reported from committee,
         advanced to a third reading, amended and ordered reprinted,  retaining
         its place on the order of third reading

       AN  ACT  to  amend  the  labor law and the education law, in relation to
         prohibiting an employer or educational institution from requesting  or
         requiring  that  an  employee,  applicant or student disclose any user
         name, password, or other means for accessing  a  personal  account  or
         service through specified electronic communications devices

         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:

    1    Section 1.  The labor law is amended by adding a new section 201-g  to
    2  read as follows:
    3    S 201-G. REQUEST FOR ACCESS TO PERSONAL ACCOUNTS OR SERVICES PROHIBIT-
    4  ED.  1. FOR PURPOSES OF THIS SECTION, THE FOLLOWING WORDS SHALL HAVE THE
    5  FOLLOWING MEANINGS:
    6    (A) "APPLICANT" MEANS AN APPLICANT FOR EMPLOYMENT.
    7    (B) "ELECTRONIC COMMUNICATIONS DEVICE"  MEANS  ANY  DEVICE  THAT  USES
    8  ELECTRONIC SIGNALS TO CREATE, TRANSMIT, AND RECEIVE INFORMATION, INCLUD-

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD03108-09-4
       A. 443--D                           2

    1  ING,  BUT NOT LIMITED TO COMPUTERS, TELEPHONES, PERSONAL DIGITAL ASSIST-
    2  ANTS AND OTHER SIMILAR DEVICES.
    3    (C)  "EMPLOYER"  MEANS  (I)  A PERSON OR ENTITY ENGAGED IN A BUSINESS,
    4  INDUSTRY, PROFESSION, TRADE OR OTHER ENTERPRISE IN THE STATE; OR (II)  A
    5  UNIT  OF  STATE  OR  LOCAL GOVERNMENT; AND (III) SHALL INCLUDE AN AGENT,
    6  REPRESENTATIVE OR DESIGNEE OF THE EMPLOYER.
    7    2. (A) EXCEPT AS PROVIDED IN PARAGRAPH (B)  OF  THIS  SUBDIVISION,  IT
    8  SHALL BE UNLAWFUL FOR ANY EMPLOYER TO REQUEST OR REQUIRE ANY EMPLOYEE OR
    9  APPLICANT  FOR  EMPLOYMENT  TO DISCLOSE ANY USER NAME, PASSWORD OR OTHER
   10  MEANS FOR ACCESSING A PERSONAL ACCOUNT OR SERVICE THROUGH AN  ELECTRONIC
   11  COMMUNICATIONS DEVICE.
   12    (B)  AN  EMPLOYER  MAY  REQUIRE AN EMPLOYEE TO DISCLOSE ANY USER NAME,
   13  PASSWORD OR OTHER MEANS FOR ACCESSING NONPERSONAL ACCOUNTS  OR  SERVICES
   14  THAT  PROVIDE  ACCESS TO THE EMPLOYER'S INTERNAL COMPUTER OR INFORMATION
   15  SYSTEMS.
   16    (C) FOR THE PURPOSES OF THIS SECTION, "ACCESS" SHALL  NOT  INCLUDE  AN
   17  EMPLOYEE OR APPLICANT VOLUNTARILY ADDING AN EMPLOYER OR EMPLOYMENT AGEN-
   18  CY  TO  THEIR  LIST  OF  CONTACTS  ASSOCIATED  WITH  A PERSONAL INTERNET
   19  ACCOUNT.
   20    3. AN EMPLOYER MAY NOT:
   21    (A) DISCHARGE,  DISCIPLINE,  OR  OTHERWISE  PENALIZE  OR  THREATEN  TO
   22  DISCHARGE,  DISCIPLINE, OR OTHERWISE PENALIZE AN EMPLOYEE FOR AN EMPLOY-
   23  EE'S REFUSAL TO DISCLOSE ANY INFORMATION SPECIFIED IN PARAGRAPH  (A)  OF
   24  SUBDIVISION TWO OF THIS SECTION; OR
   25    (B)  FAIL  OR  REFUSE  TO HIRE ANY APPLICANT AS A RESULT OF THE APPLI-
   26  CANT'S REFUSAL TO DISCLOSE ANY INFORMATION SPECIFIED IN PARAGRAPH (A) OF
   27  SUBDIVISION TWO OF THIS SECTION.
   28    4. IT SHALL BE AN AFFIRMATIVE DEFENSE TO AN ACTION UNDER THIS  SECTION
   29  THAT  THE EMPLOYER ACTED TO COMPLY WITH REQUIREMENTS OF A FEDERAL LAW OR
   30  A LAW OF THIS STATE.
   31    5. (A) NOTHING IN THIS SECTION SHALL PROHIBIT AN EMPLOYER FROM:
   32    (I) REQUESTING OR REQUIRING AN EMPLOYEE TO DISCLOSE ACCESS INFORMATION
   33  TO AN ACCOUNT, SERVICE, OR NETWORK PROVIDED BY THE EMPLOYER  WHERE  SUCH
   34  ACCOUNT,  SERVICE,  OR  NETWORK  IS  USED  FOR BUSINESS PURPOSES AND THE
   35  EMPLOYEE WAS PROVIDED PRIOR NOTICE OF THE EMPLOYER'S RIGHT TO REQUEST OR
   36  REQUIRE SUCH ACCESS INFORMATION;
   37    (II) ACCESSING AN ELECTRONIC COMMUNICATIONS DEVICE PAID FOR  IN  WHOLE
   38  OR  IN  PART  BY THE EMPLOYER WHERE THE PROVISION OF OR PAYMENT FOR SUCH
   39  ELECTRONIC COMMUNICATIONS DEVICE WAS CONDITIONED ON THE EMPLOYER'S RIGHT
   40  TO ACCESS SUCH DEVICE AND THE EMPLOYEE WAS PROVIDED PRIOR NOTICE OF  AND
   41  EXPLICITLY  AGREED TO SUCH CONDITIONS. HOWEVER, NOTHING IN THIS SUBPARA-
   42  GRAPH SHALL PERMIT AN  EMPLOYER  TO  ACCESS  ANY  PERSONAL  ACCOUNTS  OR
   43  SERVICES ON SUCH DEVICE;
   44    (III)  COMPLYING WITH A COURT ORDER IN OBTAINING OR PROVIDING INFORMA-
   45  TION FROM, OR ACCESS TO, AN EMPLOYEE'S  ACCOUNTS  OR  SERVICES  AS  SUCH
   46  COURT ORDER MAY REQUIRE;
   47    (IV)  RESTRICTING  OR  PROHIBITING  AN  EMPLOYEE'S  ACCESS  TO CERTAIN
   48  WEBSITES WHILE USING AN EMPLOYER'S NETWORK OR WHILE USING AN  ELECTRONIC
   49  COMMUNICATIONS  DEVICE  PAID  FOR IN WHOLE OR PART BY THE EMPLOYER WHERE
   50  THE PROVISION OF OR PAYMENT FOR SUCH ELECTRONIC COMMUNICATIONS    DEVICE
   51  WAS  CONDITIONED ON THE EMPLOYER'S RIGHT TO RESTRICT SUCH ACCESS AND THE
   52  EMPLOYEE WAS PROVIDED PRIOR NOTICE OF  AND  EXPLICITLY  AGREED  TO  SUCH
   53  CONDITIONS.
   54    (B)  THIS  SECTION  DOES  NOT  PROHIBIT  OR  RESTRICT AN EMPLOYER FROM
   55  COMPLYING WITH A DUTY TO SCREEN EMPLOYEES OR APPLICANTS PRIOR TO  HIRING
   56  OR  TO  MONITOR  OR  RETAIN  EMPLOYEE COMMUNICATIONS THAT IS ESTABLISHED
       A. 443--D                           3

    1  UNDER FEDERAL LAW OR BY A SELF REGULATORY ORGANIZATION,  AS  DEFINED  IN
    2  SECTION  3(A)(26)  OF  THE  SECURITIES  AND EXCHANGE ACT OF 1934, 15 USC
    3  78C(A)(26).
    4    (C)  THIS SECTION DOES NOT PROHIBIT OR RESTRICT AN EMPLOYER FROM VIEW-
    5  ING, ACCESSING, OR UTILIZING INFORMATION ABOUT AN EMPLOYEE OR  APPLICANT
    6  THAT  CAN BE OBTAINED WITHOUT ANY REQUIRED ACCESS INFORMATION OR THAT IS
    7  AVAILABLE IN THE PUBLIC DOMAIN.
    8    S 2. The education law is amended by adding a new section 115 to  read
    9  as follows:
   10    S 115. REQUEST FOR ACCESS TO PERSONAL ACCOUNTS OR SERVICES PROHIBITED.
   11  1.  FOR  PURPOSES  OF  THIS  SECTION, THE FOLLOWING WORDS SHALL HAVE THE
   12  FOLLOWING MEANINGS:
   13    (A) "EDUCATIONAL INSTITUTION" MEANS A PUBLIC  OR  PRIVATE  EDUCATIONAL
   14  INSTITUTION  OR  SEPARATE  SCHOOL  OR  DEPARTMENT OF A PUBLIC OR PRIVATE
   15  EDUCATIONAL INSTITUTION, AND INCLUDES AN ACADEMY; ELEMENTARY OR  SECOND-
   16  ARY  SCHOOL;  EXTENSION  COURSE;  KINDERGARTEN;  NURSERY  SCHOOL; SCHOOL
   17  SYSTEM; SCHOOL DISTRICT; INTERMEDIATE SCHOOL DISTRICT;  BUSINESS,  NURS-
   18  ING,  PROFESSIONAL, SECRETARIAL, TECHNICAL, OR VOCATIONAL SCHOOL; PUBLIC
   19  OR PRIVATE EDUCATIONAL TESTING SERVICE OR ADMINISTRATOR; AND AN AGENT OF
   20  AN EDUCATIONAL INSTITUTION. EDUCATIONAL INSTITUTION SHALL  BE  CONSTRUED
   21  BROADLY  TO  INCLUDE PUBLIC AND PRIVATE INSTITUTIONS OF HIGHER EDUCATION
   22  TO THE GREATEST EXTENT CONSISTENT WITH CONSTITUTIONAL LIMITATIONS.
   23    (B) "ELECTRONIC COMMUNICATIONS DEVICE"  MEANS  ANY  DEVICE  THAT  USES
   24  ELECTRONIC SIGNALS TO CREATE, TRANSMIT, AND RECEIVE INFORMATION, INCLUD-
   25  ING,  BUT NOT LIMITED TO COMPUTERS, TELEPHONES, PERSONAL DIGITAL ASSIST-
   26  ANTS AND OTHER SIMILAR DEVICES.
   27    2. IT SHALL BE UNLAWFUL FOR ANY EDUCATIONAL INSTITUTION TO:
   28    (A) REQUEST OR REQUIRE ANY STUDENT OR PROSPECTIVE STUDENT TO  DISCLOSE
   29  ANY  USER NAME, PASSWORD OR OTHER MEANS FOR ACCESSING A PERSONAL ACCOUNT
   30  OR SERVICE THROUGH AN ELECTRONIC COMMUNICATIONS DEVICE; OR
   31    (B) EXPEL, DISCIPLINE, FAIL TO ADMIT, OR OTHERWISE PENALIZE A  STUDENT
   32  OR PROSPECTIVE STUDENT FOR FAILURE TO GRANT ACCESS TO, ALLOW OBSERVATION
   33  OF,  OR DISCLOSE INFORMATION THAT ALLOWS ACCESS TO OR OBSERVATION OF THE
   34  STUDENT'S OR PROSPECTIVE STUDENT'S PERSONAL INTERNET ACCOUNT.
   35    (C) FOR THE PURPOSES OF THIS SECTION, "ACCESS" SHALL  NOT  INCLUDE  AN
   36  EMPLOYEE OR APPLICANT VOLUNTARILY ADDING AN EMPLOYER OR EMPLOYMENT AGEN-
   37  CY  TO  THEIR  LIST  OF  CONTACTS  ASSOCIATED  WITH  A PERSONAL INTERNET
   38  ACCOUNT.
   39    3. NOTHING IN THIS SECTION PROHIBITS AN EDUCATIONAL INSTITUTION FROM:
   40    (A) ACCESSING AN ELECTRONIC COMMUNICATIONS DEVICE PAID FOR IN WHOLE OR
   41  IN PART BY THE EDUCATIONAL INSTITUTION WHERE THE PROVISION OF OR PAYMENT
   42  FOR SUCH ELECTRONIC COMMUNICATIONS DEVICE WAS CONDITIONED ON THE  EDUCA-
   43  TIONAL  INSTITUTION'S  RIGHT  TO  ACCESS SUCH DEVICE AND THE STUDENT WAS
   44  PROVIDED PRIOR NOTICE OF  AND  EXPLICITLY  AGREED  TO  SUCH  CONDITIONS.
   45  HOWEVER,  NOTHING IN THIS PARAGRAPH SHALL PERMIT AN EDUCATIONAL INSTITU-
   46  TION TO ACCESS ANY PERSONAL ACCOUNTS OR SERVICES ON SUCH DEVICE; OR
   47    (B) REQUESTING OR REQUIRING A STUDENT TO DISCLOSE  ACCESS  INFORMATION
   48  TO  AN  ACCOUNT OR SERVICE PROVIDED BY THE EDUCATIONAL INSTITUTION WHERE
   49  SUCH ACCOUNT OR SERVICE IS USED FOR EDUCATIONAL PURPOSES AND THE STUDENT
   50  WAS PROVIDED PRIOR NOTICE OF  THE  EDUCATIONAL  INSTITUTION'S  RIGHT  TO
   51  REQUEST OR REQUIRE SUCH ACCESS INFORMATION.
   52    4. THIS SECTION SHALL NOT PROHIBIT OR RESTRICT AN EDUCATIONAL INSTITU-
   53  TION  FROM  VIEWING, ACCESSING, OR UTILIZING INFORMATION ABOUT A STUDENT
   54  OR APPLICANT THAT CAN BE OBTAINED WITHOUT ANY REQUIRED  ACCESS  INFORMA-
   55  TION OR THAT IS AVAILABLE IN THE PUBLIC DOMAIN.
       A. 443--D                           4

    1    5.  IT  IS AN AFFIRMATIVE DEFENSE TO AN ACTION UNDER THIS SECTION THAT
    2  THE EDUCATIONAL INSTITUTION ACTED  TO  COMPLY  WITH  REQUIREMENTS  OF  A
    3  FEDERAL LAW OR A LAW OF THIS STATE.
    4    S 3. This act shall take effect on the one hundred eightieth day after
    5  it shall have become a law.
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