S T A T E O F N E W Y O R K
________________________________________________________________________
443--D
Cal. No. 551
2013-2014 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 9, 2013
___________
Introduced by M. of A. DINOWITZ, JAFFEE, CRESPO, LAVINE, COLTON, ARROYO,
ZEBROWSKI, SCARBOROUGH, TITONE, HOOPER, ROSENTHAL, GALEF, KAVANAGH,
WEPRIN, ABINANTI, THIELE, CLARK, OTIS -- Multi-Sponsored by -- M. of
A. BRENNAN, COOK, GLICK, GOTTFRIED, HIKIND, JACOBS, McDONOUGH, MILL-
MAN, PEOPLES-STOKES, RAIA -- read once and referred to the Committee
on Labor -- reported and referred to the Committee on Codes -- commit-
tee discharged, bill amended, ordered reprinted as amended and recom-
mitted to said committee -- again reported from said committee with
amendments, ordered reprinted as amended and recommitted to said
committee -- recommitted to the Committee on Labor in accordance with
Assembly Rule 3, sec. 2 -- reported and referred to the Committee on
Codes -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee -- reported from committee,
advanced to a third reading, amended and ordered reprinted, retaining
its place on the order of third reading
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 or
service 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 S 201-G. REQUEST FOR ACCESS TO PERSONAL ACCOUNTS OR SERVICES PROHIBIT-
4 ED. 1. FOR PURPOSES OF THIS SECTION, THE FOLLOWING WORDS SHALL HAVE THE
5 FOLLOWING 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-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03108-09-4
A. 443--D 2
1 ING, BUT NOT LIMITED TO COMPUTERS, TELEPHONES, PERSONAL DIGITAL ASSIST-
2 ANTS AND OTHER SIMILAR DEVICES.
3 (C) "EMPLOYER" MEANS (I) A PERSON OR ENTITY ENGAGED IN A BUSINESS,
4 INDUSTRY, PROFESSION, TRADE OR OTHER ENTERPRISE IN THE STATE; OR (II) A
5 UNIT OF STATE OR LOCAL GOVERNMENT; AND (III) SHALL INCLUDE AN AGENT,
6 REPRESENTATIVE OR DESIGNEE OF THE EMPLOYER.
7 2. (A) EXCEPT AS PROVIDED IN PARAGRAPH (B) OF THIS SUBDIVISION, IT
8 SHALL BE UNLAWFUL FOR ANY EMPLOYER TO REQUEST OR REQUIRE ANY EMPLOYEE OR
9 APPLICANT FOR EMPLOYMENT TO DISCLOSE ANY USER NAME, PASSWORD OR OTHER
10 MEANS FOR ACCESSING A PERSONAL ACCOUNT OR SERVICE THROUGH AN ELECTRONIC
11 COMMUNICATIONS DEVICE.
12 (B) AN EMPLOYER MAY REQUIRE AN EMPLOYEE TO DISCLOSE ANY USER NAME,
13 PASSWORD OR OTHER MEANS FOR ACCESSING NONPERSONAL ACCOUNTS OR SERVICES
14 THAT PROVIDE ACCESS TO THE EMPLOYER'S INTERNAL COMPUTER OR INFORMATION
15 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 LAW OR
30 A LAW OF THIS STATE.
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, SERVICE, OR NETWORK PROVIDED BY THE EMPLOYER WHERE SUCH
34 ACCOUNT, SERVICE, OR NETWORK IS USED FOR BUSINESS PURPOSES AND THE
35 EMPLOYEE WAS PROVIDED PRIOR NOTICE OF THE EMPLOYER'S RIGHT TO REQUEST OR
36 REQUIRE SUCH ACCESS INFORMATION;
37 (II) ACCESSING AN ELECTRONIC COMMUNICATIONS DEVICE PAID FOR IN WHOLE
38 OR IN PART BY THE EMPLOYER WHERE THE PROVISION OF OR PAYMENT FOR SUCH
39 ELECTRONIC COMMUNICATIONS DEVICE WAS CONDITIONED ON THE EMPLOYER'S RIGHT
40 TO ACCESS SUCH DEVICE AND THE EMPLOYEE WAS PROVIDED PRIOR NOTICE OF AND
41 EXPLICITLY AGREED TO SUCH CONDITIONS. HOWEVER, NOTHING IN THIS SUBPARA-
42 GRAPH SHALL PERMIT AN EMPLOYER TO ACCESS ANY PERSONAL ACCOUNTS OR
43 SERVICES ON SUCH DEVICE;
44 (III) COMPLYING WITH A COURT ORDER IN OBTAINING OR PROVIDING INFORMA-
45 TION FROM, OR ACCESS TO, AN EMPLOYEE'S ACCOUNTS OR SERVICES AS SUCH
46 COURT ORDER MAY REQUIRE;
47 (IV) RESTRICTING OR PROHIBITING AN EMPLOYEE'S ACCESS TO CERTAIN
48 WEBSITES WHILE USING AN EMPLOYER'S NETWORK OR WHILE USING AN ELECTRONIC
49 COMMUNICATIONS DEVICE PAID FOR IN WHOLE OR PART BY THE EMPLOYER WHERE
50 THE PROVISION OF OR PAYMENT FOR SUCH ELECTRONIC COMMUNICATIONS DEVICE
51 WAS CONDITIONED ON THE EMPLOYER'S RIGHT TO RESTRICT SUCH ACCESS AND THE
52 EMPLOYEE WAS PROVIDED PRIOR NOTICE OF AND EXPLICITLY AGREED TO SUCH
53 CONDITIONS.
54 (B) THIS SECTION DOES NOT PROHIBIT OR RESTRICT AN EMPLOYER FROM
55 COMPLYING WITH A DUTY TO SCREEN EMPLOYEES OR APPLICANTS PRIOR TO HIRING
56 OR TO MONITOR OR RETAIN EMPLOYEE COMMUNICATIONS THAT IS ESTABLISHED
A. 443--D 3
1 UNDER FEDERAL LAW OR BY A SELF REGULATORY ORGANIZATION, AS DEFINED IN
2 SECTION 3(A)(26) OF THE SECURITIES AND EXCHANGE ACT OF 1934, 15 USC
3 78C(A)(26).
4 (C) THIS SECTION DOES NOT PROHIBIT OR RESTRICT AN EMPLOYER FROM VIEW-
5 ING, ACCESSING, OR UTILIZING INFORMATION ABOUT AN EMPLOYEE OR APPLICANT
6 THAT CAN BE OBTAINED WITHOUT ANY REQUIRED ACCESS INFORMATION OR THAT IS
7 AVAILABLE IN THE PUBLIC DOMAIN.
8 S 2. The education law is amended by adding a new section 115 to read
9 as follows:
10 S 115. REQUEST FOR ACCESS TO PERSONAL ACCOUNTS OR SERVICES PROHIBITED.
11 1. FOR PURPOSES OF THIS SECTION, THE FOLLOWING WORDS SHALL HAVE THE
12 FOLLOWING MEANINGS:
13 (A) "EDUCATIONAL INSTITUTION" MEANS A PUBLIC OR PRIVATE EDUCATIONAL
14 INSTITUTION OR SEPARATE SCHOOL OR DEPARTMENT OF A PUBLIC OR PRIVATE
15 EDUCATIONAL INSTITUTION, AND INCLUDES AN ACADEMY; ELEMENTARY OR SECOND-
16 ARY SCHOOL; EXTENSION COURSE; KINDERGARTEN; NURSERY SCHOOL; SCHOOL
17 SYSTEM; SCHOOL DISTRICT; INTERMEDIATE SCHOOL DISTRICT; BUSINESS, NURS-
18 ING, PROFESSIONAL, SECRETARIAL, TECHNICAL, OR VOCATIONAL SCHOOL; PUBLIC
19 OR PRIVATE EDUCATIONAL TESTING SERVICE OR ADMINISTRATOR; AND AN AGENT OF
20 AN EDUCATIONAL INSTITUTION. EDUCATIONAL INSTITUTION SHALL BE CONSTRUED
21 BROADLY TO INCLUDE PUBLIC AND PRIVATE INSTITUTIONS OF HIGHER EDUCATION
22 TO THE GREATEST EXTENT CONSISTENT WITH CONSTITUTIONAL LIMITATIONS.
23 (B) "ELECTRONIC COMMUNICATIONS DEVICE" MEANS ANY DEVICE THAT USES
24 ELECTRONIC SIGNALS TO CREATE, TRANSMIT, AND RECEIVE INFORMATION, INCLUD-
25 ING, BUT NOT LIMITED TO COMPUTERS, TELEPHONES, PERSONAL DIGITAL ASSIST-
26 ANTS AND OTHER SIMILAR DEVICES.
27 2. IT SHALL BE UNLAWFUL FOR ANY EDUCATIONAL INSTITUTION TO:
28 (A) REQUEST OR REQUIRE ANY STUDENT OR PROSPECTIVE STUDENT TO DISCLOSE
29 ANY USER NAME, PASSWORD OR OTHER MEANS FOR ACCESSING A PERSONAL ACCOUNT
30 OR SERVICE THROUGH AN ELECTRONIC COMMUNICATIONS DEVICE; OR
31 (B) EXPEL, DISCIPLINE, FAIL TO ADMIT, OR OTHERWISE PENALIZE A STUDENT
32 OR PROSPECTIVE STUDENT FOR FAILURE TO GRANT ACCESS TO, ALLOW OBSERVATION
33 OF, OR DISCLOSE INFORMATION THAT ALLOWS ACCESS TO OR OBSERVATION OF THE
34 STUDENT'S OR PROSPECTIVE STUDENT'S PERSONAL INTERNET ACCOUNT.
35 (C) FOR THE PURPOSES OF THIS SECTION, "ACCESS" SHALL NOT INCLUDE AN
36 EMPLOYEE OR APPLICANT VOLUNTARILY ADDING AN EMPLOYER OR EMPLOYMENT AGEN-
37 CY TO THEIR LIST OF CONTACTS ASSOCIATED WITH A PERSONAL INTERNET
38 ACCOUNT.
39 3. NOTHING IN THIS SECTION PROHIBITS AN EDUCATIONAL INSTITUTION FROM:
40 (A) ACCESSING AN ELECTRONIC COMMUNICATIONS DEVICE PAID FOR IN WHOLE OR
41 IN PART BY THE EDUCATIONAL INSTITUTION WHERE THE PROVISION OF OR PAYMENT
42 FOR SUCH ELECTRONIC COMMUNICATIONS DEVICE WAS CONDITIONED ON THE EDUCA-
43 TIONAL INSTITUTION'S RIGHT TO ACCESS SUCH DEVICE AND THE STUDENT WAS
44 PROVIDED PRIOR NOTICE OF AND EXPLICITLY AGREED TO SUCH CONDITIONS.
45 HOWEVER, NOTHING IN THIS PARAGRAPH SHALL PERMIT AN EDUCATIONAL INSTITU-
46 TION TO ACCESS ANY PERSONAL ACCOUNTS OR SERVICES ON SUCH DEVICE; OR
47 (B) REQUESTING OR REQUIRING A STUDENT TO DISCLOSE ACCESS INFORMATION
48 TO AN ACCOUNT OR SERVICE PROVIDED BY THE EDUCATIONAL INSTITUTION WHERE
49 SUCH ACCOUNT OR SERVICE IS USED FOR EDUCATIONAL PURPOSES AND THE STUDENT
50 WAS PROVIDED PRIOR NOTICE OF THE EDUCATIONAL INSTITUTION'S RIGHT TO
51 REQUEST OR REQUIRE SUCH ACCESS INFORMATION.
52 4. THIS SECTION SHALL NOT PROHIBIT OR RESTRICT AN EDUCATIONAL INSTITU-
53 TION FROM VIEWING, ACCESSING, OR UTILIZING INFORMATION ABOUT A STUDENT
54 OR APPLICANT THAT CAN BE OBTAINED WITHOUT ANY REQUIRED ACCESS INFORMA-
55 TION OR THAT IS AVAILABLE IN THE PUBLIC DOMAIN.
A. 443--D 4
1 5. IT IS AN AFFIRMATIVE DEFENSE TO AN ACTION UNDER THIS SECTION THAT
2 THE EDUCATIONAL INSTITUTION ACTED TO COMPLY WITH REQUIREMENTS OF A
3 FEDERAL LAW OR A LAW OF THIS STATE.
4 S 3. This act shall take effect on the one hundred eightieth day after
5 it shall have become a law.