Facebook – It’s not Just for Fun Anymore (Social Media – Part I)

During 2012, the country has been abuzz with dozens of statutes and cases dealing with social media (Facebook, Twitter, Linked-In., etc.) A new body of law is emerging, and unless you’ve kept close tabs on it, it can be very confusing, especially, considering that different states and different jurisdictions treat some of the same issues quite differently.

I expect that we’ll see an exponential increase in cases dealing with social media in 2013, which is why I would like to dedicate the next several posts to discussing where Texas currently stands on social media legal issues, in comparison to other jurisdictions.

As far as legislation is concerned, Texas is currently trying to catch up with some other states that have already passed statutes dealing with social media.

Senate Bill 118 – A Proposed Amendment to the Labor Code 

Last January, Texas senator Juan Hinojosa (D-Corpus Christi – McAllen) introduced a bill that would make it unlawful for employers to require or request that an employee or applicant for employment “disclose a user name, password, or other means for accessing a personal account or the employee or applicant …”

If Texas passes Senate Bill 118, it would join four other states – California (A.B. 1844), Illinois (H.B. 3782), Maryland (H.B. 964/S.B. 433), and Michigan (H.B. 5523) – that have already enacted similar legislation last year.

Additionally, California (S.B. 1349), Delaware (H.B. 309), Michigan (H.B. 5523), and New Jersey (A.B. 2879) have prohibited higher education institutions from requiring their students to give up their passwords.

Several other states have introduced similar bills in 2012 and 2013, but have not yet passed them: Massachusetts (H.D. 4323), Minnesota (H.F. 2963), Missouri (H.B. 2060), New York (A.B. 9654), Ohio (S.B. 351), Oregon (H.B. 2654), Pennsylvania (H.B. 2332), South Carolina (H.B. 5105), and Washington (S.B. 6637).

Finally, in February, several house representatives in U.S. Congress reintroduced the bill (H.R. 537) titled “Social Networking Online Protection Act” (SNOPA), which would prohibit employers and higher education institutions from requiring their employees and students’ social media passwords.

2.   HB 1989 – A Proposed Amendment to the Texas Civil Practice & Remedies Code

This month, Texas state representative Jeff Leach (R-Plano) proposed a bill that would allow sheriffs, process servers and other legal entities the right to serve legal papers over social media accounts, including Facebook.  As currently drafted, the bill would become effective on September 1, 2013.

If Texas House Bill 1989 is enacted, it would make the Lone Star State the first in the United States to allow for service of process via social media as an alternative means of service.  The courts in other jurisdictions have already found such service to be valid in certain circumstances.  For example, the Southern District Court of New York in Federal Trade Commission v. PCCARE247, Inc., found that service via Facebook was acceptable as long as the serving party could establish that the Facebook account indeed belonged to the person/entity being served.  Outside the United States, Australia, Canada,  New Zealand, and United Kingdom have all allowed service via Facebook or Twitter.   Texas could be next.

UPDATE (July 2013):  The Legislative Session ended on May 27, 2013.  HB 318/SB 118 was passed by the House, but then died.  HB 1989 was not passed by either chamber.

Leiza Dolghih is a partner at Lewis Brisbois Bisgaard & Smith LLP in Dallas, Texas and a Co-Chair of the firm’s Trade Secrets and Non-Compete Disputes national practice.  His practice includes commercial, intellectual property and employment litigation.  You can contact her directly at Leiza.Dolghih@LewisBrisbois.com or (214) 722-7108.

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