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--B
                              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, SCARBOROUGH, TITONE,  HOOP-
         ER,  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  commit-
         tee  --  again  reported  from said committee with amendments, 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
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD03108-05-3
       A. 443--B                           2
    1  UNIT  OF  STATE  OR  LOCAL GOVERNMENT; AND (III) SHALL INCLUDE AN AGENT,
    2  REPRESENTATIVE OR DESIGNEE OF THE EMPLOYER.
    3    2.  (A)  EXCEPT  AS  PROVIDED IN PARAGRAPH (B) OF THIS SUBDIVISION, IT
    4  SHALL BE UNLAWFUL FOR ANY EMPLOYER TO REQUEST OR REQUIRE ANY EMPLOYEE OR
    5  APPLICANT FOR EMPLOYMENT TO DISCLOSE ANY USER NAME,  PASSWORD  OR  OTHER
    6  MEANS  FOR ACCESSING A PERSONAL ACCOUNT OR SERVICE THROUGH AN ELECTRONIC
    7  COMMUNICATIONS DEVICE.
    8    (B) AN EMPLOYER MAY REQUIRE AN EMPLOYEE TO  DISCLOSE  ANY  USER  NAME,
    9  PASSWORD  OR  OTHER MEANS FOR ACCESSING NONPERSONAL ACCOUNTS OR SERVICES
   10  THAT PROVIDE ACCESS TO THE EMPLOYER'S INTERNAL COMPUTER  OR  INFORMATION
   11  SYSTEMS.
   12    3. AN EMPLOYER MAY NOT:
   13    (A)  DISCHARGE,  DISCIPLINE,  OR  OTHERWISE  PENALIZE  OR  THREATEN TO
   14  DISCHARGE, DISCIPLINE, OR OTHERWISE PENALIZE AN EMPLOYEE FOR AN  EMPLOY-
   15  EE'S  REFUSAL  TO DISCLOSE ANY INFORMATION SPECIFIED IN PARAGRAPH (A) OF
   16  SUBDIVISION TWO OF THIS SECTION; OR
   17    (B) FAIL OR REFUSE TO HIRE ANY APPLICANT AS A  RESULT  OF  THE  APPLI-
   18  CANT'S REFUSAL TO DISCLOSE ANY INFORMATION SPECIFIED IN PARAGRAPH (A) OF
   19  SUBDIVISION TWO OF THIS SECTION.
   20    4.  IT SHALL BE AN AFFIRMATIVE DEFENSE TO AN ACTION UNDER THIS SECTION
   21  THAT THE EMPLOYER ACTED TO COMPLY WITH REQUIREMENTS OF A FEDERAL LAW  OR
   22  A LAW OF THIS STATE.
   23    5. (A) NOTHING IN THIS SECTION SHALL PROHIBIT AN EMPLOYER FROM:
   24    (I) REQUESTING OR REQUIRING AN EMPLOYEE TO DISCLOSE ACCESS INFORMATION
   25  TO  AN  ACCOUNT, SERVICE, OR NETWORK PROVIDED BY THE EMPLOYER WHERE SUCH
   26  ACCOUNT, SERVICE, OR NETWORK IS  USED  FOR  BUSINESS  PURPOSES  AND  THE
   27  EMPLOYEE WAS PROVIDED PRIOR NOTICE OF THE EMPLOYER'S RIGHT TO REQUEST OR
   28  REQUIRE SUCH ACCESS INFORMATION;
   29    (II)  ACCESSING  AN ELECTRONIC COMMUNICATIONS DEVICE PAID FOR IN WHOLE
   30  OR IN PART BY THE EMPLOYER WHERE THE PROVISION OF OR  PAYMENT  FOR  SUCH
   31  ELECTRONIC COMMUNICATIONS DEVICE WAS CONDITIONED ON THE EMPLOYER'S RIGHT
   32  TO  ACCESS SUCH DEVICE AND THE EMPLOYEE WAS PROVIDED PRIOR NOTICE OF AND
   33  EXPLICITLY AGREED TO SUCH CONDITIONS. HOWEVER, NOTHING IN THIS  SUBPARA-
   34  GRAPH  SHALL  PERMIT  AN  EMPLOYER  TO  ACCESS  ANY PERSONAL ACCOUNTS OR
   35  SERVICES ON SUCH DEVICE;
   36    (III) COMPLYING WITH A COURT ORDER IN OBTAINING OR PROVIDING  INFORMA-
   37  TION  FROM,  OR  ACCESS  TO,  AN EMPLOYEE'S ACCOUNTS OR SERVICES AS SUCH
   38  COURT ORDER MAY REQUIRE;
   39    (IV) RESTRICTING  OR  PROHIBITING  AN  EMPLOYEE'S  ACCESS  TO  CERTAIN
   40  WEBSITES  WHILE USING AN EMPLOYER'S NETWORK OR WHILE USING AN ELECTRONIC
   41  COMMUNICATIONS DEVICE PAID FOR IN WHOLE OR PART BY  THE  EMPLOYER  WHERE
   42  THE  PROVISION  OF OR PAYMENT FOR SUCH ELECTRONIC COMMUNICATIONS  DEVICE
   43  WAS CONDITIONED ON THE EMPLOYER'S RIGHT TO RESTRICT SUCH ACCESS AND  THE
   44  EMPLOYEE  WAS  PROVIDED  PRIOR  NOTICE  OF  AN EXPLICITLY AGREED TO SUCH
   45  CONDITIONS.
   46    (B) THIS SECTION DOES  NOT  PROHIBIT  OR  RESTRICT  AN  EMPLOYER  FROM
   47  COMPLYING  WITH A DUTY TO SCREEN EMPLOYEES OR APPLICANTS PRIOR TO HIRING
   48  OR TO MONITOR OR RETAIN  EMPLOYEE  COMMUNICATIONS  THAT  IS  ESTABLISHED
   49  UNDER  FEDERAL  LAW  OR BY A SELF REGULATORY ORGANIZATION, AS DEFINED IN
   50  SECTION 3(A)(26) OF THE SECURITIES AND EXCHANGE  ACT  OF  1934,  15  USC
   51  78C(A)(26).
   52    (C)  THIS SECTION DOES NOT PROHIBIT OR RESTRICT AN EMPLOYER FROM VIEW-
   53  ING, ACCESSING, OR UTILIZING INFORMATION ABOUT AN EMPLOYEE OR  APPLICANT
   54  THAT  CAN BE OBTAINED WITHOUT ANY REQUIRED ACCESS INFORMATION OR THAT IS
   55  AVAILABLE IN THE PUBLIC DOMAIN.
       A. 443--B                           3
    1    S 2. The education law is amended by adding a new section 115 to  read
    2  as follows:
    3    S 115. REQUEST FOR ACCESS TO PERSONAL ACCOUNTS OR SERVICES PROHIBITED.
    4  1.  FOR  PURPOSES  OF  THIS  SECTION, THE FOLLOWING WORDS SHALL HAVE THE
    5  FOLLOWING MEANINGS:
    6    (A) "EDUCATIONAL INSTITUTION" MEANS A PUBLIC  OR  PRIVATE  EDUCATIONAL
    7  INSTITUTION  OR  SEPARATE  SCHOOL  OR  DEPARTMENT OF A PUBLIC OR PRIVATE
    8  EDUCATIONAL INSTITUTION, AND INCLUDES AN ACADEMY; ELEMENTARY OR  SECOND-
    9  ARY  SCHOOL;  EXTENSION  COURSE;  KINDERGARTEN;  NURSERY  SCHOOL; SCHOOL
   10  SYSTEM; SCHOOL DISTRICT; INTERMEDIATE SCHOOL DISTRICT;  BUSINESS,  NURS-
   11  ING,  PROFESSIONAL, SECRETARIAL, TECHNICAL, OR VOCATIONAL SCHOOL; PUBLIC
   12  OR PRIVATE EDUCATIONAL TESTING SERVICE OR ADMINISTRATOR; AND AN AGENT OF
   13  AN EDUCATIONAL INSTITUTION. EDUCATIONAL INSTITUTION SHALL  BE  CONSTRUED
   14  BROADLY  TO  INCLUDE PUBLIC AND PRIVATE INSTITUTIONS OF HIGHER EDUCATION
   15  TO THE GREATEST EXTENT CONSISTENT WITH CONSTITUTIONAL LIMITATIONS.
   16    (B) "ELECTRONIC COMMUNICATIONS DEVICE"  MEANS  ANY  DEVICE  THAT  USES
   17  ELECTRONIC SIGNALS TO CREATE, TRANSMIT, AND RECEIVE INFORMATION, INCLUD-
   18  ING,  BUT NOT LIMITED TO COMPUTERS, TELEPHONES, PERSONAL DIGITAL ASSIST-
   19  ANTS AND OTHER SIMILAR DEVICES.
   20    2. IT SHALL BE UNLAWFUL FOR ANY EDUCATIONAL INSTITUTION TO:
   21    (A) REQUEST OR REQUIRE ANY STUDENT OR PROSPECTIVE STUDENT TO  DISCLOSE
   22  ANY  USER NAME, PASSWORD OR OTHER MEANS FOR ACCESSING A PERSONAL ACCOUNT
   23  OR SERVICE THROUGH AN ELECTRONIC COMMUNICATIONS DEVICE; OR
   24    (B) EXPEL, DISCIPLINE, FAIL TO ADMIT, OR OTHERWISE PENALIZE A  STUDENT
   25  OR PROSPECTIVE STUDENT FOR FAILURE TO GRANT ACCESS TO, ALLOW OBSERVATION
   26  OF,  OR DISCLOSE INFORMATION THAT ALLOWS ACCESS TO OR OBSERVATION OF THE
   27  STUDENT'S OR PROSPECTIVE STUDENT'S PERSONAL INTERNET ACCOUNT.
   28    3. NOTHING IN THIS SECTION PROHIBITS AN EDUCATIONAL INSTITUTION FROM:
   29    (A) ACCESSING AN ELECTRONIC COMMUNICATIONS DEVICE PAID FOR IN WHOLE OR
   30  IN PART BY THE EDUCATIONAL INSTITUTION WHERE THE PROVISION OF OR PAYMENT
   31  FOR SUCH ELECTRONIC COMMUNICATIONS DEVICE WAS CONDITIONED ON THE  EDUCA-
   32  TIONAL  INSTITUTION'S  RIGHT  TO  ACCESS SUCH DEVICE AND THE STUDENT WAS
   33  PROVIDED PRIOR NOTICE OF  AND  EXPLICITLY  AGREED  TO  SUCH  CONDITIONS.
   34  HOWEVER,  NOTHING IN THIS PARAGRAPH SHALL PERMIT AN EDUCATIONAL INSTITU-
   35  TION TO ACCESS ANY PERSONAL ACCOUNTS OR SERVICES ON SUCH DEVICE; OR
   36    (B) REQUESTING OR REQUIRING A STUDENT TO DISCLOSE  ACCESS  INFORMATION
   37  TO  AN  ACCOUNT OR SERVICE PROVIDED BY THE EDUCATIONAL INSTITUTION WHERE
   38  SUCH ACCOUNT OR SERVICE IS USED FOR EDUCATIONAL PURPOSES AND THE STUDENT
   39  WAS PROVIDED PRIOR NOTICE OF  THE  EDUCATIONAL  INSTITUTION'S  RIGHT  TO
   40  REQUEST OR REQUIRE SUCH ACCESS INFORMATION.
   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.