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As much as an employer may want to take a peek at the private content in their employees’ social media accounts, a growing body of state law prevents companies from asking workers for their personal passwords. But although this type of content is becoming off-limits as a matter of course, it may be subject to review under certain circumstances.

During a presentation at Corporate Counsel’s 25th Annual General Counsel Conference titled “Social Media and E-discovery,” Leonard Deutchman, vice president and general counsel of LDiscovery Legal and Technology Consulting, said that Internet privacy expectations are evolving to meet technology changes.

To date, several states have passed laws prohibiting an employer from compelling a worker or job candidate to provide access to the private portions of their social media pages. A federal bill banning these requests failed to muster congressional support in April of this year, but similar legislation on the issue is pending in 24 additional states.

Even in states like California, New Jersey, and Illinois, where such prohibitions already exist, said Deutchman, the private content of a Facebook or Twitter account could become part of any litigation to which the employer is a party. If an employee discusses a pending matter using a personal social media account, he said, that content could be evidence that is subject to production.

While the employer may not be able to compel their employee to produce the evidence in those states with laws on the books, the opposing party could subpoena the employee themselves. Deutchman said, “The employee would usually prefer to comply rather than hire their own counsel.”

Likewise, if an employer accuses their own worker of wrongdoing, they may be able to gain access to private content that supports the employer’s case. There isn’t yet any controlling case law to establish what showing would have to be made to gain access, noted Deutchman. But he said that so far state courts have required facts suggesting relevant information is contained on a user’s private page.

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