Facebook privacy vs. Employers

by Staff Writer

Would you give your Facebook password to a potential employer in order to get a job? It's becoming an increasingly popular request by employers, and as a result, it's become a hot button issue to job seekers, attorneys, Lawmakers and now Facebook themselves.

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Last week Facebook released a statement denouncing the practice calling it inappropriate, and even hinting at legal action:

"We'll take action to protect the privacy and security of our users, whether by engaging policymakers or, where appropriate, by initiating legal action,"

Even if the above quote is taken slightly out of context, it quickly went viral under the headlines such as: “Facebook threatens to sue employers who demand passwords in job interviews”. Facebook later stated it has no plans to sue any employers at this time, but are looking for ways to “better safeguard the privacy of [their] users”:

"We don't think employers should be asking prospective employees to provide their passwords because we don't think it's the right the thing to do. While we do not have any immediate plans to take legal action against any specific employers, we look forward to engaging with policy makers and other stakeholders, to help better safeguard the privacy of our users"

Perhaps not coincidentally, only a few days earlier, the ACLU made similar statements regarding employer requests for access to candidates' Facebook account passwords:

“It’s an invasion of privacy for private employers to insist on looking at people’s private Facebook pages as a condition of employment or consideration in an application process.  People are entitled to their private lives. You’d be appalled if your employer insisted on opening up your postal mail to see if there was anything of interest inside. It’s equally out of bounds for an employer to go on a fishing expedition through a person’s private social media account.“

But even if you found Facebook's early (perhaps overaggressive) statement to be a PR move to improve their standing with user privacy, it succeeded in doing on thing: bringing the issue to the main stream. Attorneys and Lawmakers are now starting to make their voices heard, and as a result, new laws could be on the way.

Facebook privacy and the law

Currently there are no laws explicitly restricting employers from asking for access to a job candidate's Facebook account, but that doesn't necessarily mean it's legal. For one, it gives access to information that could potentially be considered grounds for discrimination should the employee not be hired. Information like age, sexual preference, as well as social, religious, and ethnic affiliations are generally unlawful to consider as a condition of employment.

Similarly, because access to a Facebook account is access to private stored communications, requiring such access could be a violation of the Stored Communications and Computer Fraud and Abuse acts. In fact, a couple of U.S. Senators have asked the Justice Department and the Equal Employment Opportunity Commission to begin investigations to determine if it does just that. Charles Schumer, the Senator from NY published an open letter on the subject. And from the sounds of it, if it turns out asking for a job candidate's password doesn't already break these laws, there could be a new law in the near future.

"I am alarmed and outraged by rapidly and widely spreading employer practices seeking access to Facebook passwords or confidential information on other social networks. A ban on these practices is necessary to stop unreasonable and unacceptable invasions of privacy. An investigation by the Department of Justice and Equal Employment Opportunity Commission will help remedy ongoing intrusions and coercive practices, while we draft new statutory protections to clarify and strengthen the law. With few exceptions, employers do not have the need or the right to demand access to applicants’ private, password-protected information.”

Just yesterday, a proposed amendment to the FCC Reform Act bill, to include such a law, was voted down by Republicans the U.S. house of representatives. Though their reasoning is that the language did not provide any actual protections. Rep. Greg Walden, the Oregon Republican who chairs a communications and technology subcommittee, had this to say about the proposed amendment:

“I think it's awful that employers think they can demand our passwords and can go snooping around. There is no disagreement with that. Here is the flaw: Your amendment doesn't protect them. It doesn't do that. Actually, what this amendment does is say that all of the reforms that we are trying to put in place at the Federal Communications Commission, in order to have them have an open and transparent process where they are required to publish their rules in advance so that you can see what they're proposing, would basically be shoved aside. They could do whatever they wanted on privacy if they wanted to, and you wouldn't know it until they published their text afterward. There is no protection here.”

A separate legislation could still be introduced, and based on Senator Schumer's open letter, the reasoning for the objection to the failed amendment, as well as its relatively close vote, there's still a good probability for a federal law in the near future. In the meantime, a number of states including California, Maryland, and Minnesota have already introduced bills proposing laws prohibiting the practice.

What employers and employees should do

Employers should be extremely careful when attempting to acquire personal information about a potential candidate. Access to such information creates a legal liability that can put the entire organization in a situation where it is accused of discrimination; particularly if it leads to a disqualification of the candidate.

Perhaps the bigger issue at play here, however, is the potential infringements on candidates rights to privacy, which has become an increasingly sensitive topic, particularly among lawmakers. Asking for a Facebook password can give access to a candidate's private messages, advertising account information, and a number of sensitive controls. Additionally, it gives access to Facebook friend's information, which brings up the issue of their expectation and right to privacy as well.

Job seekers and candidates should never feel required to give potential employers their Facebook password. It is, first and foremost, a breach of the website's terms of service. It could also be considered an invasion of privacy of the candidate's Facebook friends as well, as they have not consented to 3rd party access to the accessible private information (private messages, “friend-only” access, etc.). Instead, job seekers should offer to (perhaps temporarily) accept a friend request from the potential employer or simply make their time-line public so that the employer can have access only to the information relevant to their business interests: a candidate's public Facebook activity.

That said, even access to your public time-line may indeed be a breach of privacy as well as access to information inappropriate for employment decisions. So as the dust settles on potential legal ramifications of employer access to Facebook information, asking for, and granting such access remains a matter of personal and professional comfort levels.


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