In early May, the California Assembly followed an emerging national trend to protect more workers' social media from employers' prying eyes.
On a 63-8 vote, the Assembly passed Assembly Bill 25, which would extend protections now given to private employees and job applicants to public employees and those seeking government jobs.
The bill, by Assemblywoman Nora Campos, D-San Jose, prohibits employers from asking for user names and passwords as well as any other personal social media.
But it's drawing opposition from law enforcement groups and background investigators, who say the measure would ban many of the practices they use to disqualify applicants for such factors as drug use, gang affiliation and accessing child pornography.
The California Chiefs of Police, the Commission on Peace Officers Standards and Training and the California Background Investigators Association want applicants for peace officer jobs excluded from the measure's provisions, saying lack of access to prospective employees' Internet postings will hinder their legal obligation to conduct a "thorough background investigation."
"People are not paying attention to the applicant factor," warned Tracy Elwood Veraldi, vice president of the California Background Investigators Association.
She cited cases in which her department would not have been able to uncover applicants' "illicit and illegal behavior had we not had permission to look at their (social media) site."
She said background investigators also collect applicants' email addresses to determine if the applicant has multiple online personas linked to illegal activity.
If the restriction were to go into place, "basically, we could hire pedophiles," Elwood Veraldi said.
Making an exemption for peace officers would be unconstitutional, however, an Assembly analysis argues. Citing Supreme Court precedents, the analysis contends a user name and password create a reasonable expectation of privacy for content they protect.
"You've got the right to privacy the right to be free from unreasonable searches," said Valerie Small Navarro, a legislative advocate for ACLU of California, which is in favor of AB 25. She noted the privacy expected for emails and for password-protected content follows the same premise as "if you write a letter to your mother and you drop it in the mail, your expectation is that people are not going to be reading the letter to your mother."
As the bill stands, it would protect job applicants and current employees from having to "divulge any personal social media," including user names, passwords, blogs, video and email, including email addresses in addition to emails and access to email accounts. The measure is pending in a Senate committee.
Some police departments require applicants to sign a waiver and hand over social media user names and passwords, said Don Duffy, president of the California Background Investigators Association.
Duffy said email addresses are essential to the work his Police Department in Santa Barbara conducts. They help link a person to a "ghost" account or information that he or she intends to be anonymous, he said.
That practice could be illegal under the current bill, said Lee Tien, a senior staff attorney at the Electronic Frontier Foundation.
"It might not be a violation of the text of the law, but it is a violation of the spirit of the law," he said. "(If) an employer or potential employer is looking to uncover what a person has deliberately kept separate from their real name in an attempt at some kind of personal life (then) taking a user name and connecting the dots is the problem."
Opposition to these restrictions is not new. Last year, Campos carried a successful measure to protect private employees and applicants. It faced scrutiny because opponents worried it would hinder companies' ability to conduct internal investigations of current workers.
Experts working in the field said they haven't seen that problem.
"It hasn't affected our work at all," said Don Vilfer, president of Califorensics, a California-based digital forensics firm, and an FBI veteran.
That is because Vilfer's firm uses digital forensics to review hard drives, which keep a record of user activity, including social media activity.
Since a hard drive is company property, asking for a password to view social media activity becomes a moot point in the case of a justifiable internal investigation.
Just how much of an applicant's right to privacy can be curtailed for a law enforcement exception remains uncertain.
Vilfer argued that there is information even the federal government does not ask its applicants to divulge.
"You do not give up privacy interests just because you are applying for law enforcement," he said.
Call Amy Gebert, (916) 326-5544.