On Wednesday, the House of Representatives voted down an amendment to FCC legislation that would prohibit employers from asking or demanding that potential employees disclose their Facebook usernames and passwords as part of the interview screening process. This practice, which received widespread media attention after a recent Associated Press article in the Boston Globe, has reportedly been used by public service oriented employers such as municipalities, law enforcement offices, and 911 call centers, but also by other commercial employers, including Sears.
Discussion of this practice has provoked widespread outrage and heated policy debates; this is indicative of the larger and mainly uncharted issue of privacy on social media in our technological age. What kind of privacy can a Facebook user really expect? Theoretically, information that users post on social media sites – inside jokes to friends, embarrassing pictures, social commentary, political rants – could be out there forever. Even if a user deletes a previous post or an image, it does not necessarily disappear. The post could be copied, saved, and re-posted elsewhere, where it can be taken out of context or altered. A user quickly loses any certainty of control over this information. Should the dramatic on-line rant of an impulsive 15 year old be associated with him or her indefinitely? Should it affect his or her future job prospects?
Critics, and outraged Facebook users (often one in the same), have likened the move to an interviewer requesting the interviewee’s house keys. Furthermore, by logging onto an interviewee’s Facebook account, a potential employer gains access to the personal information of not only the interviewee, but also all of the interviewee’s Facebook friends, many of whom have likely set their privacy settings to limit who can access their information. These peoples’ privacy would now be in jeopardy, and they would have no way of determining who exactly has been browsing through their pictures, status updates, and private information.
It’s clear that the practice of employers asking prospective employers for their social media passwords is a controversial one, but the key question remains: is it legal? The ACLU has complained of the practice, and several senators have reportedly banded together to request that the Justice Department and the Equal Employment Opportunity Commission begin investigating the legality of the act. The senators specifically asked, according to the New York Times, about the legality of the practice in light of the Stored Communications Act and the Computer Fraud and Abuse Act.
Facebook has issued a strong-worded, proactive response. In its response (Full text of the post). Facebook reminded users that it is actually “a violation of Facebook’s Statement of Rights and Responsibilities to share or solicit a Facebook password.” It also addressed an additional potential legal issue: employment law and, in particular, employment discrimination issues. As Facebook put it,
it also may cause problems for the employers that they are not anticipating. For example, if an employer sees on Facebook that someone is a member of a protected group (e.g. over a certain age, etc.) that employer may open themselves up to claims of discrimination if they don’t hire that person.
Employment discrimination statutes such as the Age Discrimination in Employment Act, the Americans with Disabilities Act and Title VII of the Civil Rights Act, prohibit an employer from making employment decisions based on factors like age, race, gender, and physical condition – all things which, most likely, would be readily revealed by even a quick perusal of a potential employee’s Facebook page.
Finally, in the case of government or public employers, another possible legal issue involves the 14th amendment due process liberty interests of potential employees. Presumptively, these individuals have a fundamental right to privacy, particularly that which involves their personal lives and not their job performance. Government employers, of course, will argue that the information on a person’s Facebook page is relevant to that person’s character, lifestyle or integrity, which presumably will affect their job performance, and thus is both relevant and important.