Washington has become the fifth state this year to enact legislation protecting social media passwords of job applicants and employees. The law prohibits employers and potential employers from demanding online social media passwords from employees, and bars employers from demanding that employees Friend management personnel so that their profile is viewable.
The new legislation does allow employers to request "content" (not passwords) during internal investigations (e.g. leaked trade secrets). This marks the first official position on the issue taken by any branch of Washington government.
Washington's courts of appeals have yet to weigh in directly on the discoverability online social media in civil litigation (employment-related or otherwise). Trial courts will likely continue to evaluate requests for social media on a case-by-case basis under the principles of the discovery rules. That being said, it is unlikely courts will order litigants to give passwords or Friend adverse parties' attorneys. While the recent legislation has no direct legal impact on discoverability in civil litigation, it does announce (or substantiate, depending on your perspective) the public policy and privacy interests in protecting social media, or at least the scope and type of disclosures (requested targeted to specific content, rather than access to everything).
The new law also draws a clear distinction between social media content and social media access. This is the same line I have been proposing, and interpreting in review of national case law on social media discovery, in lecturing and writing about the discoverability of online social media.
So, kudos to Washington for getting on it, and also for doing it right.
