S T A T E   O F   N E W   Y O R K
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                                  4388

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                            January 30, 2015
                               ___________

Introduced by M. of A. DINOWITZ, JAFFEE, CRESPO, LAVINE, COLTON, ARROYO,
  ZEBROWSKI,  SCARBOROUGH,  TITONE,  HOOPER, ROSENTHAL, GALEF, KAVANAGH,
  WEPRIN, ABINANTI, THIELE, CLARK, OTIS -- Multi-Sponsored by --  M.  of
  A. BRENNAN, COOK, GLICK, GOTTFRIED, HIKIND, McDONOUGH, PEOPLES-STOKES,
  RAIA -- read once and referred to the Committee on Labor

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:

  Section 1.  The labor law is amended by adding a new section 201-g  to
read as follows:
  S 201-G. REQUEST FOR ACCESS TO PERSONAL ACCOUNTS OR SERVICES PROHIBIT-
ED.  1. FOR PURPOSES OF THIS SECTION, THE FOLLOWING WORDS SHALL HAVE THE
FOLLOWING MEANINGS:
  (A) "APPLICANT" MEANS AN APPLICANT FOR EMPLOYMENT.
  (B) "ELECTRONIC COMMUNICATIONS DEVICE"  MEANS  ANY  DEVICE  THAT  USES
ELECTRONIC SIGNALS TO CREATE, TRANSMIT, AND RECEIVE INFORMATION, INCLUD-
ING,  BUT NOT LIMITED TO COMPUTERS, TELEPHONES, PERSONAL DIGITAL ASSIST-
ANTS AND OTHER SIMILAR DEVICES.
  (C) "EMPLOYER" MEANS (I) A PERSON OR ENTITY  ENGAGED  IN  A  BUSINESS,
INDUSTRY,  PROFESSION, TRADE OR OTHER ENTERPRISE IN THE STATE; OR (II) A
UNIT OF STATE OR LOCAL GOVERNMENT; AND (III)  SHALL  INCLUDE  AN  AGENT,
REPRESENTATIVE OR DESIGNEE OF THE EMPLOYER.
  2.  (A)  EXCEPT  AS  PROVIDED IN PARAGRAPH (B) OF THIS SUBDIVISION, IT
SHALL BE UNLAWFUL FOR ANY EMPLOYER TO REQUEST OR REQUIRE ANY EMPLOYEE OR
APPLICANT FOR EMPLOYMENT TO DISCLOSE ANY USER NAME AND PASSWORD OR OTHER
MEANS FOR ACCESSING A PERSONAL ACCOUNT OR SERVICE THROUGH AN  ELECTRONIC
COMMUNICATIONS DEVICE.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01077-02-5
              

A. 4388                             2

  (B)  AN  EMPLOYER  MAY  REQUIRE AN EMPLOYEE TO DISCLOSE ANY USER NAME,
PASSWORD OR OTHER MEANS FOR ACCESSING NONPERSONAL ACCOUNTS  OR  SERVICES
THAT  PROVIDE  ACCESS TO THE EMPLOYER'S INTERNAL COMPUTER OR INFORMATION
SYSTEMS.
  (C)  FOR  THE  PURPOSES OF THIS SECTION, "ACCESS" SHALL NOT INCLUDE AN
EMPLOYEE OR APPLICANT VOLUNTARILY ADDING AN EMPLOYER OR EMPLOYMENT AGEN-
CY TO THEIR  LIST  OF  CONTACTS  ASSOCIATED  WITH  A  PERSONAL  INTERNET
ACCOUNT.
  3. AN EMPLOYER MAY NOT:
  (A)  DISCHARGE,  DISCIPLINE,  OR  OTHERWISE  PENALIZE  OR  THREATEN TO
DISCHARGE, DISCIPLINE, OR OTHERWISE PENALIZE AN EMPLOYEE FOR AN  EMPLOY-
EE'S  REFUSAL  TO DISCLOSE ANY INFORMATION SPECIFIED IN PARAGRAPH (A) OF
SUBDIVISION TWO OF THIS SECTION; OR
  (B) FAIL OR REFUSE TO HIRE ANY APPLICANT AS A  RESULT  OF  THE  APPLI-
CANT'S REFUSAL TO DISCLOSE ANY INFORMATION SPECIFIED IN PARAGRAPH (A) OF
SUBDIVISION TWO OF THIS SECTION.
  4.  IT SHALL BE AN AFFIRMATIVE DEFENSE TO AN ACTION UNDER THIS SECTION
THAT THE EMPLOYER ACTED TO COMPLY WITH REQUIREMENTS OF A FEDERAL LAW  OR
A LAW OF THIS STATE.
  5. (A) NOTHING IN THIS SECTION SHALL PROHIBIT AN EMPLOYER FROM:
  (I) REQUESTING OR REQUIRING AN EMPLOYEE TO DISCLOSE ACCESS INFORMATION
TO  AN  ACCOUNT, SERVICE, OR NETWORK PROVIDED BY THE EMPLOYER WHERE SUCH
ACCOUNT, SERVICE, OR NETWORK IS  USED  FOR  BUSINESS  PURPOSES  AND  THE
EMPLOYEE WAS PROVIDED PRIOR NOTICE OF THE EMPLOYER'S RIGHT TO REQUEST OR
REQUIRE SUCH ACCESS INFORMATION;
  (II)  ACCESSING  AN ELECTRONIC COMMUNICATIONS DEVICE PAID FOR IN WHOLE
OR IN PART BY THE EMPLOYER WHERE THE PROVISION OF OR  PAYMENT  FOR  SUCH
ELECTRONIC COMMUNICATIONS DEVICE WAS CONDITIONED ON THE EMPLOYER'S RIGHT
TO  ACCESS SUCH DEVICE AND THE EMPLOYEE WAS PROVIDED PRIOR NOTICE OF AND
EXPLICITLY AGREED TO SUCH CONDITIONS. HOWEVER, NOTHING IN THIS  SUBPARA-
GRAPH  SHALL  PERMIT  AN  EMPLOYER  TO  ACCESS  ANY PERSONAL ACCOUNTS OR
SERVICES ON SUCH DEVICE;
  (III) COMPLYING WITH A COURT ORDER IN OBTAINING OR PROVIDING  INFORMA-
TION  FROM,  OR  ACCESS  TO,  AN EMPLOYEE'S ACCOUNTS OR SERVICES AS SUCH
COURT ORDER MAY REQUIRE;
  (IV) RESTRICTING  OR  PROHIBITING  AN  EMPLOYEE'S  ACCESS  TO  CERTAIN
WEBSITES  WHILE USING AN EMPLOYER'S NETWORK OR WHILE USING AN ELECTRONIC
COMMUNICATIONS DEVICE PAID FOR IN WHOLE OR PART BY  THE  EMPLOYER  WHERE
THE  PROVISION  OF OR PAYMENT FOR SUCH ELECTRONIC COMMUNICATIONS  DEVICE
WAS CONDITIONED ON THE EMPLOYER'S RIGHT TO RESTRICT SUCH ACCESS AND  THE
EMPLOYEE  WAS  PROVIDED  PRIOR  NOTICE  OF AND EXPLICITLY AGREED TO SUCH
CONDITIONS.
  (B) THIS SECTION DOES  NOT  PROHIBIT  OR  RESTRICT  AN  EMPLOYER  FROM
COMPLYING  WITH A DUTY TO SCREEN EMPLOYEES OR APPLICANTS PRIOR TO HIRING
OR TO MONITOR OR RETAIN  EMPLOYEE  COMMUNICATIONS  THAT  IS  ESTABLISHED
UNDER  FEDERAL  LAW  OR BY A SELF REGULATORY ORGANIZATION, AS DEFINED IN
SECTION 3(A)(26) OF THE SECURITIES AND EXCHANGE  ACT  OF  1934,  15  USC
78C(A)(26).
  (C)  THIS SECTION DOES NOT PROHIBIT OR RESTRICT AN EMPLOYER FROM VIEW-
ING, ACCESSING, OR UTILIZING INFORMATION ABOUT AN EMPLOYEE OR  APPLICANT
THAT  CAN BE OBTAINED WITHOUT ANY REQUIRED ACCESS INFORMATION OR THAT IS
AVAILABLE IN THE PUBLIC DOMAIN.
  S 2. The education law is amended by adding a new section 115 to  read
as follows:

A. 4388                             3

  S 115. REQUEST FOR ACCESS TO PERSONAL ACCOUNTS OR SERVICES PROHIBITED.
1.  FOR  PURPOSES  OF  THIS  SECTION, THE FOLLOWING WORDS SHALL HAVE THE
FOLLOWING MEANINGS:
  (A)  "EDUCATIONAL  INSTITUTION"  MEANS A PUBLIC OR PRIVATE EDUCATIONAL
INSTITUTION OR SEPARATE SCHOOL OR DEPARTMENT  OF  A  PUBLIC  OR  PRIVATE
EDUCATIONAL  INSTITUTION, AND INCLUDES AN ACADEMY; ELEMENTARY OR SECOND-
ARY SCHOOL;  EXTENSION  COURSE;  KINDERGARTEN;  NURSERY  SCHOOL;  SCHOOL
SYSTEM;  SCHOOL  DISTRICT; INTERMEDIATE SCHOOL DISTRICT; BUSINESS, NURS-
ING, PROFESSIONAL, SECRETARIAL, TECHNICAL, OR VOCATIONAL SCHOOL;  PUBLIC
OR PRIVATE EDUCATIONAL TESTING SERVICE OR ADMINISTRATOR; AND AN AGENT OF
AN  EDUCATIONAL  INSTITUTION. EDUCATIONAL INSTITUTION SHALL BE CONSTRUED
BROADLY TO INCLUDE PUBLIC AND PRIVATE INSTITUTIONS OF  HIGHER  EDUCATION
TO THE GREATEST EXTENT CONSISTENT WITH CONSTITUTIONAL LIMITATIONS.
  (B)  "ELECTRONIC  COMMUNICATIONS  DEVICE"  MEANS  ANY DEVICE THAT USES
ELECTRONIC SIGNALS TO CREATE, TRANSMIT, AND RECEIVE INFORMATION, INCLUD-
ING, BUT NOT LIMITED TO COMPUTERS, TELEPHONES, PERSONAL DIGITAL  ASSIST-
ANTS AND OTHER SIMILAR DEVICES.
  2. IT SHALL BE UNLAWFUL FOR ANY EDUCATIONAL INSTITUTION TO:
  (A)  REQUEST OR REQUIRE ANY STUDENT OR PROSPECTIVE STUDENT TO DISCLOSE
ANY USER NAME AND PASSWORD OR  OTHER  MEANS  FOR  ACCESSING  A  PERSONAL
ACCOUNT OR SERVICE THROUGH AN ELECTRONIC COMMUNICATIONS DEVICE; OR
  (B)  EXPEL, DISCIPLINE, FAIL TO ADMIT, OR OTHERWISE PENALIZE A STUDENT
OR PROSPECTIVE STUDENT FOR FAILURE TO GRANT ACCESS TO, ALLOW OBSERVATION
OF, OR DISCLOSE INFORMATION THAT ALLOWS ACCESS TO OR OBSERVATION OF  THE
STUDENT'S OR PROSPECTIVE STUDENT'S PERSONAL INTERNET ACCOUNT.
  (C)  FOR  THE  PURPOSES OF THIS SECTION, "ACCESS" SHALL NOT INCLUDE AN
EMPLOYEE OR APPLICANT VOLUNTARILY ADDING AN EMPLOYER OR EMPLOYMENT AGEN-
CY TO THEIR  LIST  OF  CONTACTS  ASSOCIATED  WITH  A  PERSONAL  INTERNET
ACCOUNT.
  3. NOTHING IN THIS SECTION PROHIBITS AN EDUCATIONAL INSTITUTION FROM:
  (A) ACCESSING AN ELECTRONIC COMMUNICATIONS DEVICE PAID FOR IN WHOLE OR
IN PART BY THE EDUCATIONAL INSTITUTION WHERE THE PROVISION OF OR PAYMENT
FOR  SUCH ELECTRONIC COMMUNICATIONS DEVICE WAS CONDITIONED ON THE EDUCA-
TIONAL INSTITUTION'S RIGHT TO ACCESS SUCH DEVICE  AND  THE  STUDENT  WAS
PROVIDED  PRIOR  NOTICE  OF  AND  EXPLICITLY  AGREED TO SUCH CONDITIONS.
HOWEVER, NOTHING IN THIS PARAGRAPH SHALL PERMIT AN EDUCATIONAL  INSTITU-
TION TO ACCESS ANY PERSONAL ACCOUNTS OR SERVICES ON SUCH DEVICE; OR
  (B)  REQUESTING  OR REQUIRING A STUDENT TO DISCLOSE ACCESS INFORMATION
TO AN ACCOUNT OR SERVICE PROVIDED BY THE EDUCATIONAL  INSTITUTION  WHERE
SUCH ACCOUNT OR SERVICE IS USED FOR EDUCATIONAL PURPOSES AND THE STUDENT
WAS  PROVIDED  PRIOR  NOTICE  OF  THE EDUCATIONAL INSTITUTION'S RIGHT TO
REQUEST OR REQUIRE SUCH ACCESS INFORMATION.
  4. THIS SECTION SHALL NOT PROHIBIT OR RESTRICT AN EDUCATIONAL INSTITU-
TION FROM VIEWING, ACCESSING, OR UTILIZING INFORMATION ABOUT  A  STUDENT
OR  APPLICANT  THAT CAN BE OBTAINED WITHOUT ANY REQUIRED ACCESS INFORMA-
TION OR THAT IS AVAILABLE IN THE PUBLIC DOMAIN.
  5. IT IS AN AFFIRMATIVE DEFENSE TO AN ACTION UNDER THIS  SECTION  THAT
THE  EDUCATIONAL  INSTITUTION  ACTED  TO  COMPLY  WITH REQUIREMENTS OF A
FEDERAL LAW OR A LAW OF THIS STATE.
  S 3. This act shall take effect on the one hundred eightieth day after
it shall have become a law.