Internet privacy protection has become a growing concern as it relates to employment and housing, so much so, that states like California, Illinois and Colorado have enacted laws granting a range of protections. So it comes as no surprise that another state has recently enacted legislation on the topic. Wisconsin’s governor signed legislation relating to employer access to, and observation of, the personal Internet accounts of employees and applicants for employment; educational institution access to, and observation of, the personal Internet accounts of student and prospective students; landlord’s access to, and observation of, the personal Internet accounts of tenants and prospective tenants, all of which carry a penalty. Internet privacy protection has become a growing concern for employees.
Employment-related
Under the new law, employers cannot:
- Request or require an employee or applicant, as a condition of employment, to disclose access information for their personal Internet account,
- Discharge or otherwise discriminate against an employee for exercising his/her rights, or
- Refuse to hire an applicant because the applicant refused to disclose access information for, grant access to, or allow observation of the applicant’s personal Internet account.
Exceptions
There are some exceptions under the law. Employers are permitted to:
- Request or require an employee to disclose access information (1) to gain access to or operate an electronic communications device supplied or paid for in whole or part by the employer, or (2) gain access to an account or service provided by the employer, obtained by virtue of the employee’s employment relationship with the employer or used for the employer’s business purposes;
- Discharge or discipline an employee for transferring the employer’s proprietary or confidential information or financial data to the employee’s personal Internet account without authorization;
- Conduct an investigation or require an employee to cooperate in an investigation of alleged unauthorized transfer if the employer has reasonable cause to believe that such unauthorized transfer has occurred, or of any other alleged employment-related misconduct, violation of law, or violation of work rules as specified in the employee handbook, if the employer has reasonable cause to believe the activity on the employee’s personal Internet account relating to the misconduct or violation has occurred. As part of the investigation, the employer may require the employee to grant access to or allow observation of the employee’s personal Internet account but cannot require the employee to disclose access information for the account;
- Restrict or prohibit the employee’s access to certain Internet sites while using an electronic communications device supplied or paid for in whole or part by the employer while using the employer’s network or other resources;
- Screen applicants for employment prior to hiring, or monitor or retain employee communications imposed under state or federal laws, rules, or regulations, or the rules of a self-regulatory organization (defined under the law);
- View, access, or use information about applicant’s or employee’s that is obtained without access information or that is available in the public domain; or
- Request or require employee’s to disclose personal email addresses.
Keep in mind this law does not apply to a personal Internet account or an electronic communications device of an employee engaged in providing financial services who uses the account or device to conduct the business of an employer that is subject to the content, supervision, and retention requirements imposed by federal securities laws and regulations or by the rules of a self-regulatory organization. Additionally, the law’s provisions are not violated for an employer that inadvertently obtains access information for an employee’s personal Internet account through the use of an electronic device or program that monitors the employer’s network or through an electronic communications device supplied or paid for in whole or part by the employer, so long as the employer doesn’t use the information to access the employee’s personal Internet account.
Educational Institution-related
Under the law, educational institutions cannot:
- Request or require a student or prospective student to disclose access information for a personal Internet account as a condition of admission or enrollment;
- Expel, suspend, discipline, or otherwise penalize any student for exercising their right under the law; or
- Refuse to admit a prospective student because the prospective student refuses to disclose access information for, grant access to, or allow observation of the prospective student’s personal Internet account.
Exceptions
There are some exceptions under the law. Educational institutions are permitted to:
- Request or require a student to disclose access information in order for the institution to gain access to or operate an electronic communications device supplied or paid for in whole or part by the institution or in order for the institution to gain access to an account or service provided by the institution, obtained by virtue of the student’s admission to the institution, or used for educational purposes; or
- View, access, or use information about a student or prospective student that can be obtained without access information or that is available in the public domain.
Landlord-related
Under the law, landlords cannot:
- Request or require a tenant or prospective tenant to disclose access information for a personal Internet account as a condition of tenancy; or
- Discriminate against a tenant or prospective tenant for exercising their right under the law.
Exceptions
There are some exceptions under the law. Landlords can:
- View, access, or use information about a tenant or prospective tenant that can be obtained without access information or that is available in the public domain.
Compliance with the Law
Employer’s as defined under the law mean any person engaging in any activity, enterprise, or business employing at least one individual. This includes the State of Wisconsin, its political subdivisions, any office, department, independent agency, authority, institution, association, society or other body in state or local government created or authorized to be created by the constitution or any law, including the legislature and the courts.
All employers affected by the law should review policies and procedures involving hiring, on-boarding, monitoring and investigations. It is important to understand how Wisconsin’s personal Internet account access law, and what an employer can and cannot do, interacts with federal discrimination under the Civil Rights Act.