Illinois and several other states have enacted legislation prohibiting employers from requiring that employees or applicants provide passwords or otherwise provide access to their Facebook and other social media accounts. Last week a U.S. District Court provided another reason for employers to stay away from employee social media accounts.

On August 20, 2013, in the case of Ehling v. Monmouth-Ocean Hospital Service Corp., the New Jersey U.S. District Court ruled that that nonpublic Facebook material is protected by the federal Stored Communications Act (the "SCA"). The SCA represented  a very early, pre-Internet effort "intended to afford privacy protection to electronic communications." The SCA was adopted in pre-historic 1986, during the era of dial-up modems connecting to closed, self-contained networks such as Prodigy, CompuServe, and America Online. The ubiquitous web browser was not unveiled until five years later. Courts previously have not directly addressed the application of the SCA to nonpublic Facebook postings. The SCA prohibits intentionally accessing, without authorization, a facility providing electronic communication service, or intentionally exceeding an authorization to access that facility, and as a result, obtaining, altering, or preventing authorized access to a stored communication within the facility. A violator is liable for damages.

In Ehling, the employee posted comments on her nonpublic Facebook page criticizing paramedics who treated an elderly sociopath who killed a guard at the D.C. Holocaust Museum, and suggested that they missed an "opportunity to really make a difference!" A co-worker who also was a Facebook friend, and had access to the nonpublic posting, brought a copy to the employer, who suspended Ehling.

The court granted summary judgment for the employer after it found that accessing nonpublic Facebook postings violated the SCA, but also found the employer not liable under the SCA and state privacy law because it was given the information by the authorized user co-worker.

While prior cases had suggested this result, Ehling makes it clear: an employer's unauthorized access of nonpublic social media postings violates the SCA, and creates a cause of action for damages. Ironically, the SCA may find greater application in these days of the Internet than it had originally.

For further information on this decision, contact Mike Gifford, Michael Lied, or Robert Rosenthal.