Assembly Bill A443D

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

                                   443

                       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,  CASTRO,   SCARBOROUGH,
  TITONE,  HOOPER, ROSENTHAL, GALEF, KAVANAGH, WEPRIN, ABINANTI, THIELE,
  CLARK -- Multi-Sponsored by -- M. of A.  BRENNAN, COOK,  GLICK,  GOTT-
  FRIED,  HIKIND,  JACOBS,  McDONOUGH, MILLMAN, PEOPLES-STOKES, RABBITT,
  RAIA -- read once and referred to the Committee on Labor

AN ACT to amend the labor law, in relation to  prohibiting  an  employer
  from  requesting  or  requiring that an employee or applicant 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,  PASSWORD  OR  OTHER

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03108-01-3
              

A. 443                              2

MEANS  FOR ACCESSING A PERSONAL ACCOUNT OR SERVICE THROUGH AN ELECTRONIC
COMMUNICATIONS DEVICE.
  (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.
  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.
  S 2. This act shall take effect on the one hundred eightieth day after
it shall have become a law.

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

                                 443--A

                       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,  CASTRO,   SCARBOROUGH,
  TITONE,  HOOPER, 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 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:

  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.

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

                                                           LBD03108-03-3

A. 443--A                           2

  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, PASSWORD OR OTHER
MEANS FOR ACCESSING A PERSONAL ACCOUNT OR SERVICE THROUGH AN  ELECTRONIC
COMMUNICATIONS DEVICE.
  (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.
  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) THIS SECTION DOES NOT PROHIBIT AN EMPLOYER FROM  DOING  ANY  OF
THE FOLLOWING:
  (I) REQUESTING OR REQUIRING AN EMPLOYEE TO DISCLOSE ACCESS INFORMATION
TO THE EMPLOYER TO GAIN ACCESS TO OR OPERATE ANY OF THE FOLLOWING:
  (1)  AN  ELECTRONIC COMMUNICATIONS DEVICE PAID FOR IN WHOLE OR IN PART
BY THE EMPLOYER; OR
  (2) AN ACCOUNT OR SERVICE PROVIDED BY THE EMPLOYER, OBTAINED BY VIRTUE
OF THE EMPLOYEE'S EMPLOYMENT RELATIONSHIP WITH THE EMPLOYER, OR USED FOR
THE EMPLOYER'S BUSINESS PURPOSES.
  (II) DISCIPLINING OR DISCHARGING  AN  EMPLOYEE  FOR  TRANSFERRING  THE
EMPLOYER'S  PROPRIETARY OR CONFIDENTIAL INFORMATION OR FINANCIAL DATA TO
AN EMPLOYEE'S PERSONAL INTERNET ACCOUNT WITHOUT THE EMPLOYER'S  AUTHORI-
ZATION.
  (III)  CONDUCTING AN INVESTIGATION OR REQUIRING AN EMPLOYEE TO COOPER-
ATE IN AN INVESTIGATION IN ANY OF THE FOLLOWING CIRCUMSTANCES:
  (1) IF THERE IS SPECIFIC INFORMATION ABOUT ACTIVITY ON THE  EMPLOYEE'S
PERSONAL  INTERNET  ACCOUNT, FOR THE PURPOSE OF ENSURING COMPLIANCE WITH
APPLICABLE LAWS, REGULATORY REQUIREMENTS, OR PROHIBITIONS AGAINST  WORK-
RELATED EMPLOYEE MISCONDUCT; OR
  (2)  IF  THE  EMPLOYER  HAS SPECIFIC INFORMATION ABOUT AN UNAUTHORIZED
TRANSFER OF THE EMPLOYER'S PROPRIETARY INFORMATION, CONFIDENTIAL  INFOR-
MATION, OR FINANCIAL DATA TO AN EMPLOYEE'S PERSONAL INTERNET ACCOUNT.
  (IV)  RESTRICTING  OR  PROHIBITING  AN  EMPLOYEE'S  ACCESS  TO CERTAIN
WEBSITES WHILE USING AN ELECTRONIC COMMUNICATIONS  DEVICE  PAID  FOR  IN
WHOLE OR IN PART BY THE EMPLOYER OR WHILE USING AN EMPLOYER'S NETWORK OR
RESOURCES, IN ACCORDANCE WITH STATE AND FEDERAL LAW.
  (V)  MONITORING,  REVIEWING, OR ACCESSING ELECTRONIC DATA STORED ON AN
ELECTRONIC COMMUNICATIONS DEVICE PAID FOR IN WHOLE OR  IN  PART  BY  THE
EMPLOYER,  OR  TRAVELING  THROUGH OR STORED ON AN EMPLOYER'S NETWORK, IN
ACCORDANCE WITH STATE AND FEDERAL LAW.
  (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).

A. 443--A                           3

  (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:
  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, 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.
  3.  THIS  SECTION  SHALL  NOT PROHIBIT AN EDUCATIONAL INSTITUTION FROM
REQUESTING OR REQUIRING A STUDENT TO DISCLOSE ACCESS INFORMATION TO  THE
EDUCATIONAL  INSTITUTION TO GAIN ACCESS TO OR OPERATE ANY OF THE FOLLOW-
ING:
  (A) AN ELECTRONIC COMMUNICATIONS DEVICE PAID FOR IN WHOLE OR  IN  PART
BY THE EDUCATIONAL INSTITUTION; OR
  (B) AN ACCOUNT OR SERVICE PROVIDED BY THE EDUCATIONAL INSTITUTION THAT
IS  EITHER  OBTAINED  BY VIRTUE OF THE STUDENT'S ADMISSION TO THE EDUCA-
TIONAL INSTITUTION OR USED BY THE STUDENT FOR EDUCATIONAL PURPOSES.
  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.

                            
                    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:

  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03108-05-3
              

A. 443--B                           2

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,  PASSWORD  OR  OTHER
MEANS  FOR ACCESSING A PERSONAL ACCOUNT OR SERVICE THROUGH AN ELECTRONIC
COMMUNICATIONS DEVICE.
  (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.
  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  AN 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.

A. 443--B                           3

  S 2. The education law is amended by adding a new section 115 to  read
as follows:
  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, 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.
  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.

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

                                 443--C

                       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, 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, JACOBS, McDONOUGH, MILL-
  MAN, PEOPLES-STOKES, RAIA -- read once and referred to  the  Committee
  on Labor -- reported and referred to the Committee on Codes -- commit-
  tee  discharged, bill amended, ordered reprinted as amended and recom-
  mitted to said committee -- again reported from  said  committee  with
  amendments,  ordered  reprinted  as  amended  and  recommitted to said
  committee -- recommitted to the Committee on Labor in accordance  with
  Assembly  Rule  3, sec. 2 -- reported and referred to the Committee on
  Codes -- committee discharged,  bill  amended,  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:

  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.

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

                                                           LBD03108-07-4

A. 443--C                           2

  (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,  PASSWORD  OR  OTHER
MEANS  FOR ACCESSING A PERSONAL ACCOUNT OR SERVICE THROUGH AN ELECTRONIC
COMMUNICATIONS DEVICE.
  (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  AN 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

A. 443--C                           3

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:
  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, 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.

A. 443--C                           4

  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.