New Privacy Law Limits Access to Social Media

January 2013

Effective January 1, 2013, the Social Media Privacy Act (“Act”) prohibits employers in California from requesting certain information related to social media accounts from current or prospective employees.  The Act also prohibits state colleges and universities from requesting such information from students and student applicants.  “Social media” is broadly defined by the Act to mean “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.”

The Act is comprised of two separate laws.  The first, Assembly Bill (“AB”) 1844, amends the California Labor Code and prohibits employers from requiring or requesting any employee or any applicant for employment to:

  1. disclose a user name or password for the purpose of accessing personal social media;
  2. access personal social media in the employer’s presence; or
  3. divulge any personal social media.

AB 1844 also prohibits acts of discipline, threats of discipline or retaliation against an employee or an applicant who refuses to comply with a request or demand that violates the law. 

However, AB 1844 makes clear that the new restrictions do not affect any existing rights of an employer to request personal social media information in the context of an investigation into charges of employee misconduct or a violation of the law, so long as information sought is reasonably believed to be relevant to the investigation and it is used solely for purposes of that investigation or a related proceeding.  Additionally, when an employer issues its own electronic device, nothing in the new law prevents the employer from requiring employees to disclose user names and passwords. 

The second law in the Act, Senate Bill (“SB”) 1349, amends the California Education Code and applies the same restrictions on requests or demands for personal social media information to public and private postsecondary educational institutions and their employees and representatives as they relate to students, prospective students and student groups.  Further, SB 1349 expressly provides that, while postsecondary educational institutions may not discipline, threaten to discipline or “otherwise penalize a student, prospective student or student group in any way for refusing to comply with a request or demand” that violates the Act, it does not “affect a public or private postsecondary educational institution’s existing rights and obligations to protect against and investigate alleged student misconduct or violations of applicable laws and regulations.”

A conservative reading of the Act raises a number of legal issues, including but not limited to:

  • Whether a LinkedIn request to a job candidate is a prohibited request for a prospective employee to divulge social media?
  • Whether a community college employee’s Facebook friend request to a community college student constitutes a prohibited request for a student to divulge social media?
  • Whether an employer can request an employee to divulge personal social media as it relates to an investigation of another employee's misconduct? 

We anticipate that the Act will be clarified to address these issues through legislation or the courts.  In the meantime, if you have any questions regarding the application of the Act or social media rights and responsibilities for employers and/or postsecondary educational institutions, please call one of our six offices.

F3 NewsFlash prepared by Gretchen Shipley and John Norlin.
Gretchen Shipley is a Partner in the F3 San Diego  office.
John Norlin is Special Counsel in the F3 San Diego office.

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