Bill Text: NY A00443 | 2013-2014 | General Assembly | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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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: Strong Partisan Bill (Democrat 26-2)

Status: (Engrossed - Dead) 2014-05-12 - REFERRED TO LABOR [A00443 Detail]

Download: New_York-2013-A00443-Amended.html

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                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                        443--A
                              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, STEVENSON, CRESPO, LAVINE,
         PERRY,  COLTON,  ARROYO,  BOYLAND,  ZEBROWSKI,  CASTRO,   SCARBOROUGH,
         TITONE,  HOOPER, ROSENTHAL, GALEF, KAVANAGH, WEPRIN, ABINANTI, THIELE,
         CLARK, OTIS -- Multi-Sponsored by -- M. of A.  BRENNAN,  COOK,  GLICK,
         GOTTFRIED,   HIKIND,   JACOBS,   McDONOUGH,  MILLMAN,  PEOPLES-STOKES,
         RABBITT, RAIA -- read once and referred to the Committee on  Labor  --
         reported   and  referred  to  the  Committee  on  Codes  --  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 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-
    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.
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD03108-03-3
       A. 443--A                           2
    1    2. (A) EXCEPT AS PROVIDED IN PARAGRAPH (B)  OF  THIS  SUBDIVISION,  IT
    2  SHALL BE UNLAWFUL FOR ANY EMPLOYER TO REQUEST OR REQUIRE ANY EMPLOYEE OR
    3  APPLICANT  FOR  EMPLOYMENT  TO DISCLOSE ANY USER NAME, PASSWORD OR OTHER
    4  MEANS FOR ACCESSING A PERSONAL ACCOUNT OR SERVICE THROUGH AN  ELECTRONIC
    5  COMMUNICATIONS DEVICE.
    6    (B)  AN  EMPLOYER  MAY  REQUIRE AN EMPLOYEE TO DISCLOSE ANY USER NAME,
    7  PASSWORD OR OTHER MEANS FOR ACCESSING NONPERSONAL ACCOUNTS  OR  SERVICES
    8  THAT  PROVIDE  ACCESS TO THE EMPLOYER'S INTERNAL COMPUTER OR INFORMATION
    9  SYSTEMS.
   10    3. AN EMPLOYER MAY NOT:
   11    (A) DISCHARGE,  DISCIPLINE,  OR  OTHERWISE  PENALIZE  OR  THREATEN  TO
   12  DISCHARGE,  DISCIPLINE, OR OTHERWISE PENALIZE AN EMPLOYEE FOR AN EMPLOY-
   13  EE'S REFUSAL TO DISCLOSE ANY INFORMATION SPECIFIED IN PARAGRAPH  (A)  OF
   14  SUBDIVISION TWO OF THIS SECTION; OR
   15    (B)  FAIL  OR  REFUSE  TO HIRE ANY APPLICANT AS A RESULT OF THE APPLI-
   16  CANT'S REFUSAL TO DISCLOSE ANY INFORMATION SPECIFIED IN PARAGRAPH (A) OF
   17  SUBDIVISION TWO OF THIS SECTION.
   18    4. IT SHALL BE AN AFFIRMATIVE DEFENSE TO AN ACTION UNDER THIS  SECTION
   19  THAT  THE EMPLOYER ACTED TO COMPLY WITH REQUIREMENTS OF A FEDERAL LAW OR
   20  A LAW OF THIS STATE.
   21    5. (A) THIS SECTION DOES NOT PROHIBIT AN EMPLOYER FROM  DOING  ANY  OF
   22  THE FOLLOWING:
   23    (I) REQUESTING OR REQUIRING AN EMPLOYEE TO DISCLOSE ACCESS INFORMATION
   24  TO THE EMPLOYER TO GAIN ACCESS TO OR OPERATE ANY OF THE FOLLOWING:
   25    (1)  AN  ELECTRONIC COMMUNICATIONS DEVICE PAID FOR IN WHOLE OR IN PART
   26  BY THE EMPLOYER; OR
   27    (2) AN ACCOUNT OR SERVICE PROVIDED BY THE EMPLOYER, OBTAINED BY VIRTUE
   28  OF THE EMPLOYEE'S EMPLOYMENT RELATIONSHIP WITH THE EMPLOYER, OR USED FOR
   29  THE EMPLOYER'S BUSINESS PURPOSES.
   30    (II) DISCIPLINING OR DISCHARGING  AN  EMPLOYEE  FOR  TRANSFERRING  THE
   31  EMPLOYER'S  PROPRIETARY OR CONFIDENTIAL INFORMATION OR FINANCIAL DATA TO
   32  AN EMPLOYEE'S PERSONAL INTERNET ACCOUNT WITHOUT THE EMPLOYER'S  AUTHORI-
   33  ZATION.
   34    (III)  CONDUCTING AN INVESTIGATION OR REQUIRING AN EMPLOYEE TO COOPER-
   35  ATE IN AN INVESTIGATION IN ANY OF THE FOLLOWING CIRCUMSTANCES:
   36    (1) IF THERE IS SPECIFIC INFORMATION ABOUT ACTIVITY ON THE  EMPLOYEE'S
   37  PERSONAL  INTERNET  ACCOUNT, FOR THE PURPOSE OF ENSURING COMPLIANCE WITH
   38  APPLICABLE LAWS, REGULATORY REQUIREMENTS, OR PROHIBITIONS AGAINST  WORK-
   39  RELATED EMPLOYEE MISCONDUCT; OR
   40    (2)  IF  THE  EMPLOYER  HAS SPECIFIC INFORMATION ABOUT AN UNAUTHORIZED
   41  TRANSFER OF THE EMPLOYER'S PROPRIETARY INFORMATION, CONFIDENTIAL  INFOR-
   42  MATION, OR FINANCIAL DATA TO AN EMPLOYEE'S PERSONAL INTERNET ACCOUNT.
   43    (IV)  RESTRICTING  OR  PROHIBITING  AN  EMPLOYEE'S  ACCESS  TO CERTAIN
   44  WEBSITES WHILE USING AN ELECTRONIC COMMUNICATIONS  DEVICE  PAID  FOR  IN
   45  WHOLE OR IN PART BY THE EMPLOYER OR WHILE USING AN EMPLOYER'S NETWORK OR
   46  RESOURCES, IN ACCORDANCE WITH STATE AND FEDERAL LAW.
   47    (V)  MONITORING,  REVIEWING, OR ACCESSING ELECTRONIC DATA STORED ON AN
   48  ELECTRONIC COMMUNICATIONS DEVICE PAID FOR IN WHOLE OR  IN  PART  BY  THE
   49  EMPLOYER,  OR  TRAVELING  THROUGH OR STORED ON AN EMPLOYER'S NETWORK, IN
   50  ACCORDANCE WITH STATE AND FEDERAL LAW.
   51    (B) THIS SECTION DOES  NOT  PROHIBIT  OR  RESTRICT  AN  EMPLOYER  FROM
   52  COMPLYING  WITH A DUTY TO SCREEN EMPLOYEES OR APPLICANTS PRIOR TO HIRING
   53  OR TO MONITOR OR RETAIN  EMPLOYEE  COMMUNICATIONS  THAT  IS  ESTABLISHED
   54  UNDER  FEDERAL  LAW  OR BY A SELF REGULATORY ORGANIZATION, AS DEFINED IN
   55  SECTION 3(A)(26) OF THE SECURITIES AND EXCHANGE  ACT  OF  1934,  15  USC
   56  78C(A)(26).
       A. 443--A                           3
    1    (C)  THIS SECTION DOES NOT PROHIBIT OR RESTRICT AN EMPLOYER FROM VIEW-
    2  ING, ACCESSING, OR UTILIZING INFORMATION ABOUT AN EMPLOYEE OR  APPLICANT
    3  THAT  CAN BE OBTAINED WITHOUT ANY REQUIRED ACCESS INFORMATION OR THAT IS
    4  AVAILABLE IN THE PUBLIC DOMAIN.
    5    S  2. The education law is amended by adding a new section 115 to read
    6  as follows:
    7    S 115. REQUEST FOR ACCESS TO PERSONAL ACCOUNTS OR SERVICES PROHIBITED.
    8  1. FOR PURPOSES OF THIS SECTION, THE  FOLLOWING  WORDS  SHALL  HAVE  THE
    9  FOLLOWING MEANINGS:
   10    (A)  "EDUCATIONAL  INSTITUTION"  MEANS A PUBLIC OR PRIVATE EDUCATIONAL
   11  INSTITUTION OR SEPARATE SCHOOL OR DEPARTMENT  OF  A  PUBLIC  OR  PRIVATE
   12  EDUCATIONAL  INSTITUTION, AND INCLUDES AN ACADEMY; ELEMENTARY OR SECOND-
   13  ARY SCHOOL;  EXTENSION  COURSE;  KINDERGARTEN;  NURSERY  SCHOOL;  SCHOOL
   14  SYSTEM;  SCHOOL  DISTRICT; INTERMEDIATE SCHOOL DISTRICT; BUSINESS, NURS-
   15  ING, PROFESSIONAL, SECRETARIAL, TECHNICAL, OR VOCATIONAL SCHOOL;  PUBLIC
   16  OR PRIVATE EDUCATIONAL TESTING SERVICE OR ADMINISTRATOR; AND AN AGENT OF
   17  AN  EDUCATIONAL  INSTITUTION. EDUCATIONAL INSTITUTION SHALL BE CONSTRUED
   18  BROADLY TO INCLUDE PUBLIC AND PRIVATE INSTITUTIONS OF  HIGHER  EDUCATION
   19  TO THE GREATEST EXTENT CONSISTENT WITH CONSTITUTIONAL LIMITATIONS.
   20    (B)  "ELECTRONIC  COMMUNICATIONS  DEVICE"  MEANS  ANY DEVICE THAT USES
   21  ELECTRONIC SIGNALS TO CREATE, TRANSMIT, AND RECEIVE INFORMATION, INCLUD-
   22  ING, BUT NOT LIMITED TO COMPUTERS, TELEPHONES, PERSONAL DIGITAL  ASSIST-
   23  ANTS AND OTHER SIMILAR DEVICES.
   24    2. IT SHALL BE UNLAWFUL FOR ANY EDUCATIONAL INSTITUTION TO:
   25    (A)  REQUEST OR REQUIRE ANY STUDENT OR PROSPECTIVE STUDENT TO DISCLOSE
   26  ANY USER NAME, PASSWORD OR OTHER MEANS FOR ACCESSING A PERSONAL  ACCOUNT
   27  OR SERVICE THROUGH AN ELECTRONIC COMMUNICATIONS DEVICE; OR
   28    (B)  EXPEL, DISCIPLINE, FAIL TO ADMIT, OR OTHERWISE PENALIZE A STUDENT
   29  OR PROSPECTIVE STUDENT FOR FAILURE TO GRANT ACCESS TO, ALLOW OBSERVATION
   30  OF, OR DISCLOSE INFORMATION THAT ALLOWS ACCESS TO OR OBSERVATION OF  THE
   31  STUDENT'S OR PROSPECTIVE STUDENT'S PERSONAL INTERNET ACCOUNT.
   32    3.  THIS  SECTION  SHALL  NOT PROHIBIT AN EDUCATIONAL INSTITUTION FROM
   33  REQUESTING OR REQUIRING A STUDENT TO DISCLOSE ACCESS INFORMATION TO  THE
   34  EDUCATIONAL  INSTITUTION TO GAIN ACCESS TO OR OPERATE ANY OF THE FOLLOW-
   35  ING:
   36    (A) AN ELECTRONIC COMMUNICATIONS DEVICE PAID FOR IN WHOLE OR  IN  PART
   37  BY THE EDUCATIONAL INSTITUTION; OR
   38    (B) AN ACCOUNT OR SERVICE PROVIDED BY THE EDUCATIONAL INSTITUTION THAT
   39  IS  EITHER  OBTAINED  BY VIRTUE OF THE STUDENT'S ADMISSION TO THE EDUCA-
   40  TIONAL INSTITUTION OR USED BY THE STUDENT FOR EDUCATIONAL PURPOSES.
   41    4. THIS SECTION SHALL NOT PROHIBIT OR RESTRICT AN EDUCATIONAL INSTITU-
   42  TION FROM VIEWING, ACCESSING, OR UTILIZING INFORMATION ABOUT  A  STUDENT
   43  OR  APPLICANT  THAT CAN BE OBTAINED WITHOUT ANY REQUIRED ACCESS INFORMA-
   44  TION OR THAT IS AVAILABLE IN THE PUBLIC DOMAIN.
   45    5. IT IS AN AFFIRMATIVE DEFENSE TO AN ACTION UNDER THIS  SECTION  THAT
   46  THE  EDUCATIONAL  INSTITUTION  ACTED  TO  COMPLY  WITH REQUIREMENTS OF A
   47  FEDERAL LAW OR A LAW OF THIS STATE.
   48    S 3. This act shall take effect on the one hundred eightieth day after
   49  it shall have become a law.