Recently enacted Illinois laws are intended to protect the online privacy of both public and private employees in the state.
The Judicial Privacy Improvement Act (JPIA) is a legislative response to the 2005 shootings of relatives of a federal judge based in Illinois. Authorities believe that the shooter was seeking revenge after the judge dismissed a lawsuit. The statute allows judges to request that their personal information – defined as home addresses, telephone numbers, personal email addresses, Social Security numbers, federal tax identification numbers, checking and savings account numbers, credit card numbers, marital status and the identification of minor children – be removed from websites and public documents. Those who fail to comply with such requests are subject to civil and criminal penalties. The statute also exempts such information from disclosure under the Freedom of Information Act.
Statutes restricting the publication of information regarding public figures always raise First Amendment concerns. For instance, the Court of Appeals for the Seventh Circuit recently held that an eavesdropping statute could not constitutionally be applied to bar recording of police officers. The JPIA may escape constitutional scrutiny so long as it is not extended to bar publication of information not reasonably likely to be used to harm judges or applied to prevent the news media from reporting on matters of public concern. The statute attempts to avoid the First Amendment problems that would arise from creating a “prior restraint” by requiring judges to request a takedown before a good faith publisher can be punished. Fourteenth Amendment questions, however, may remain regarding whether a law that only protects judges denies equal protection to others, particularly those who face similar risks of retaliation due to their professions.
Another new Illinois law prohibits employers from requiring employees and candidates to turn over their personal social media passwords as a condition of employment. Before any newly unemployed YouTubers relocate from Tucson to Chicago, they should know that the law does not affect an employer’s ability to view publicly available online information. We previously posted about a similar law enacted in Maryland in April.