California – Gone Too Far Again

Lead Analyst: Cal Braunstein

California Governor Jerry Brown signed into laws Assembly Bill (AB) 1844, which restricts employers' access to employees' social media accounts, and Senate Bill (SB) 1349, which restricts schools' access to students' social media accounts. Due to the overbroad nature of the laws and the definition of social media, enterprises and schools may have difficulty complying while performing their fiduciary responsibilities.

Focal Points:

• Although both laws expressly claim they are only regulating "social media," the definitions used in the laws goes well beyond true social media over the Internet. The statutes use the following definition: "social media" means an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations. In effect, the law governs all digital content and activity – whether it is over the Internet and/or stored in local storage devices on in-house systems.
• Additionally, AB 1844, which covers employer-employee relationships, restricts employers' access to "personal social media" while allowing business-related access. However, the law does not define what comprises business or personal social media. It assumes that these classifications are mutually exclusive, which is not always the case. There have been multiple lawsuits over the years that have resulted from disagreements between the parties as to the classification of certain emails, files, and other social media.
• Many organizations inform employees that email and social media activity performed while using the organization's computer systems is open to access and review by the company. Furthermore, some entities have employees sign an annual agreement to such rights. However, the law makes it illegal for employers to ask for login credentials to "personal" accounts and the statute does not allow access to mixed accounts, which supposedly do not exist.