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Abstract

The global proliferation of social media has transformed these online platforms—once used almost exclusively by young, tech-savvy Millennials—into transcontinental mediums of communication and expression. Through social media, dictatorships have been overthrown, human rights abuses have been exposed, and the oppressed have been given a voice. The social and cultural impact has been truly prolific. But until recently, social media’s economic impact was less clear. Now, though, myriad evidence—ranging from studies focusing on revenue generated from a single Facebook “Like,” to commentary positing that trillions of dollars in value have yet to be realized—indicates the potential commercial advantages stemming from social media’s use. With over one-billion users worldwide, the small percentage of companies not using social media to market and maintain relationships will likely face difficulty competing with companies that adequately utilize these inexpensive platforms.

But while social media’s place in commerce is now established, the legal consequences of its misuse in the workplace are nebulous. Courts and legislatures have struggled to balance the competing interests of business autonomy and employees’ privacy rights, ultimately resulting in a patchwork of judicial holdings and reactive legislation. And with little guidance from courts, companies have struggled to adapt to the ever-changing social media landscape. Thus, companies are attempting to navigate the legal thicket by drafting explicitly restrictive social media policies that protect business interests.

This legal ambiguity has prompted a recent trend in employment-contract drafting that threatens to disrupt social media’s market potential. These new provisions effectively force employees to turn over social media passwords to their employers upon termination of employment. At first blush, this practice might seem innocuous. This Comment argues that it is anything but. Coupled with a balancing of the equities approach, an analysis of pertinent principles of contract, privacy, and tort law shows that employees’ rights should prevail. As a matter of law and equity, an employee’s right to retain access to her social media accounts post-termination should be assured through a judicial prohibition of these overly intrusive employment provisions.

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