Christopher A. Moore
39 Campbell L. Rev. 493 (2017)
No crevice of society remains untouched by the pervasiveness of social media—including the workplace. Every day, employers and employees become more skilled at cultivating an online network of followers and then turning those contacts into dollars. Employees increasingly use social media accounts to expand their business activities, be it the journalist who breaks news on Twitter or the realtor who advertises open houses on Facebook. While the ever-expanding use of social media in the course of employment provides immeasurable benefits to both the employer and employee alike, it also creates more problems. Perhaps chief among them: Whose account is it? Whereas employers and departing employees used to fight over the rolodex, they now jockey over the password that delivers direct access to thousands of business contacts.
While password disputes are beginning to trickle into courts across the country, early jurisprudence on the issue is wildly inconsistent. Before the floodgates of professional social media account litigation open, courts need to adopt a framework that resolves disputes consistently and fairly. This Comment suggests that the license agreements underlying social media accounts should constitute personal property. Then, the Comment provides a two-step approach for determining whether the employer or employee is the real licensee of the account and, therefore, receives the property rights that attach to the license.