Bill Text: NY S01573 | 2017-2018 | General Assembly | Amended


Bill Title: 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.

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Introduced - Dead) 2018-01-22 - PRINT NUMBER 1573A [S01573 Detail]

Download: New_York-2017-S01573-Amended.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                         1573--A
                               2017-2018 Regular Sessions
                    IN SENATE
                                    January 10, 2017
                                       ___________
        Introduced  by  Sen.  AVELLA -- read twice and ordered printed, and when
          printed to be committed to the Committee on Labor  --  recommitted  to
          the  Committee  on  Labor  in accordance with Senate Rule 6, sec. 8 --
          committee discharged, bill amended, ordered reprinted as  amended  and
          recommitted to said committee
        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
          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    §  201-g.  Request  for access to personal accounts prohibited. 1. For
     4  purposes of this section, the following words shall have  the  following
     5  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-
     9  ing, but not limited to computers, telephones, personal digital  assist-
    10  ants and other similar devices.
    11    (c)  "Employer"  means  (i)  a person or entity engaged in a business,
    12  industry, profession, trade or other enterprise in the state; or (ii)  a
    13  unit  of  state  or  local government; and (iii) shall include an agent,
    14  representative or designee of the employer.
    15    (d) "Personal account" means an account or profile  on  an  electronic
    16  medium  where  users may create, share, and view user-generated content,
    17  including uploading or downloading videos or still  photographs,  blogs,
    18  video  blogs,  podcasts, instant messages, or Internet Web site profiles
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01236-03-8

        S. 1573--A                          2
     1  or locations that is used by an employee or an applicant exclusively for
     2  personal purposes.
     3    2.  (a)  Except  as  provided in paragraph (b) of this subdivision, it
     4  shall be unlawful for any employer to request,  require  or  coerce  any
     5  employee or applicant for employment:
     6    (i)  disclose any user name and password, password, or other authenti-
     7  cation information for accessing a personal account through an electron-
     8  ic communications device;
     9    (ii) access the employee's or  applicant's  personal  account  in  the
    10  presence of the employer;
    11    (iii) reproduce in any manner photographs, video, or other information
    12  contained within a personal account.
    13    (b)  An  employer  may  require an employee to disclose any user name,
    14  password or other means for accessing nonpersonal accounts that  provide
    15  access to the employer's internal computer or information 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,  state
    30  or local law.
    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  provided by the employer where such account is used for
    34  business purposes and the employee was  provided  prior  notice  of  the
    35  employer's right to request or require such access information;
    36    (ii)  requesting  or requiring an employee to disclose access informa-
    37  tion to an account  known  to  an  employer  to  be  used  for  business
    38  purposes;
    39    (iii)  accessing an electronic communications device paid for in whole
    40  or in part by the employer where the provision of or  payment  for  such
    41  electronic communications device was conditioned on the employer's right
    42  to  access such device and the employee was provided prior notice of and
    43  explicitly agreed to such conditions. However, nothing in this  subpara-
    44  graph  shall  permit an employer to access any personal accounts on such
    45  device;
    46    (iv) complying with a court order in obtaining or  providing  informa-
    47  tion  from, or access to, an employee's accounts as such court order may
    48  require;
    49    (v)  restricting  or  prohibiting  an  employee's  access  to  certain
    50  websites  while using an employer's network or while using an electronic
    51  communications device paid for in whole or part by  the  employer  where
    52  the  provision  of or payment for such electronic communications  device
    53  was conditioned on the employer's right to restrict such access and  the
    54  employee  was  provided  prior  notice  of and explicitly agreed to such
    55  conditions.

        S. 1573--A                          3
     1    (b) This section does  not  prohibit  or  restrict  an  employer  from
     2  complying  with a duty to screen employees or applicants prior to hiring
     3  or to monitor or retain  employee  communications  that  is  established
     4  under  federal  law  or by a self regulatory organization, as defined in
     5  section  3(a)(26)  of  the  securities  and exchange act of 1934, 15 USC
     6  78c(a)(26).
     7    (c) This section does not prohibit or restrict an employer from  view-
     8  ing,  accessing, or utilizing information about an employee or applicant
     9  that can be obtained without any required access information or that  is
    10  available in the public domain.
    11    6.  The provisions of this section shall not apply to any law enforce-
    12  ment agency, a fire department or a department of corrections and commu-
    13  nity supervision.
    14    § 2. The education law is amended by adding a new section 115 to  read
    15  as follows:
    16    §  115.  Request  for  access  to personal accounts prohibited. 1. For
    17  purposes of this section, the following words shall have  the  following
    18  meanings:
    19    (a)  "Educational  institution"  means a public or private educational
    20  institution or separate school or department  of  a  public  or  private
    21  educational  institution, and includes an academy; elementary or second-
    22  ary school;  extension  course;  kindergarten;  nursery  school;  school
    23  system;  school  district; intermediate school district; business, nurs-
    24  ing, professional, secretarial, technical, or vocational school;  public
    25  or private educational testing service or administrator; and an agent of
    26  an  educational  institution. Educational institution shall be construed
    27  broadly to include public and private institutions of  higher  education
    28  to the greatest extent consistent with constitutional limitations.
    29    (b)  "Electronic  communications  device"  means  any device that uses
    30  electronic signals to create, transmit, and receive information, includ-
    31  ing, but not limited to computers, telephones, personal digital  assist-
    32  ants and other similar devices.
    33    (c)  "Personal  account"  means an account or profile on an electronic
    34  medium where users may create, share, and view  user-generated  content,
    35  including  uploading  or downloading videos of still photographs, blogs,
    36  video blogs, podcasts, instant messages, or Internet Website profiles or
    37  locations that is used by a student or a prospective  student  primarily
    38  for personal purposes.
    39    2. It shall be unlawful for any educational institution to:
    40    (a)  request, require, or coerce any student or prospective student to
    41  disclose any user name and password, password, or  other  authentication
    42  information that allows access to a personal account;
    43    (b)  request,  require,  or coerce a student or perspective student to
    44  access the student's or prospective student's personal  account  in  the
    45  presence of the educational institution;
    46    (c)  request,  require  or  coerce a student or perspective student to
    47  reproduce in  any  manner  photographs,  videos,  or  other  information
    48  contained within a personal account; or
    49    (d) suspend, expel, discipline, fail to admit, or otherwise penalize a
    50  student  or  prospective  student  for failure to grant access to, allow
    51  observation of, or disclose information that allows access to or  obser-
    52  vation of the student's or prospective student's personal account.
    53    (e)  For  the  purposes  of this section, "access" shall not include a
    54  student or applicant voluntarily adding an  educational  institution  to
    55  their list of contacts associated with a personal account.
    56    3. Nothing in this section prohibits an educational institution from:

        S. 1573--A                          4
     1    (a) accessing an electronic communications device paid for in whole or
     2  in part by the educational institution where the provision of or payment
     3  for  such electronic communications device was conditioned on the educa-
     4  tional institution's right to access such device  and  the  student  was
     5  provided  prior  notice  of  and  explicitly  agreed to such conditions.
     6  However, nothing in this paragraph shall permit an educational  institu-
     7  tion to access any personal accounts or services on such device; or
     8    (b)  requesting  or requiring a student to disclose access information
     9  to an account provided by the educational institution where such account
    10  is used exclusively for educational purposes and the student  or  parent
    11  or  guardian  for  students under the age of eighteen was provided prior
    12  notice of the educational institution's right to request or require such
    13  access information.  However, nothing in this subdivision  shall  permit
    14  an educational institution to access any personal accounts on a communi-
    15  cations device.
    16    4. This section shall not prohibit or restrict an educational institu-
    17  tion  from  viewing, accessing, or utilizing information about a student
    18  or applicant that can be obtained without any required  access  informa-
    19  tion or that is available in the public domain.
    20    5.  It  is an affirmative defense to an action under this section that
    21  the educational institution acted  to  comply  with  requirements  of  a
    22  federal, state or local law.
    23    § 3. This act shall take effect on the one hundred eightieth day after
    24  it shall have become a law.
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