The news is full of stories this week about those in positions of power demanding Facebook passwords. The ACLUannounced that it is helping a Minnesota high school student sue Minnewaska Area Schools after school officials forced her to hand over her Facebook password so that they could search her private messages for an alleged conversation with another student about S-E-X. Because the school is a public institution, the ACLU alleges this violated the student’s constitutional right to be free from unreasonable searches. Meanwhile, MSNBC reports on prospective prison guards in Maryland being forced to hand over their Facebook passwords during job interviews and college athletes who are forced to friend their coaches on the social network. The Maryland Department of Corrections wanted to check applicants’ pages for any signs that they’re affiliated with a gang, while coaches want to make sure athletes are behaving (and not violating any NCAA rules).
Those of you offended by the idea of a prospective employer simply looking at your public-facing Facebook page must now be curled up in the fetal position, rocking back and forth, and crying at the horror of it all. In fact, says privacy attorney Behnam Dayanim of Axinn Veltrop Harkrider, there is no legal protection for you, at this point, if an employer asks for your Facebook password during a job interview. You can (and you should!) say no, but private employers have the right to ask for it and can choose not to hire you if you refuse.
“Legally, the employer has a strong position. You can say no, but there’s no element of duress there. If you don’t get the job, you’re no worse off than you were before,” says Dayanim. “That said, as a policy matter for the employers, I think it’s a bad idea.”
Oftentimes, employers asking for Facebook passwords wind up targeted in Internet shame campaigns and then back down. But there could be greater protection than “SHAME ON YOU” in the future. Some legislators aren’t too happy about employers hacking into prospective employees’ accounts. Lawmakers in Illinois and Maryland have proposed bills to prohibit employers from requiring applicants to hand over passwords to their social networking accounts during the interview process.
“Congress should clarify that this is not permissible and protect companies from liability for what their employees say and do privately on this medium,” says Dayanim.
It’s interesting that employers think it’s okay to do this. They would never ask candidates to hand e-mail passwords over for a review of private messages and thoughts to vet candidates. It’s the mixed public-private nature of Facebook that makes it ripe for this abuse.
In the case of government employers, the law is a bit murkier, says Dayanim. An enterprising lawyer could argue that such a search is a constitutional violation, threatening someone’s First and Fourth Amendment rights to free speech and freedom from unreasonable searches, respectively.Though an employer workaround might be to automate the review so that it’s a narrow search; if the Maryland Department of Corrections had an automated tool that went through applicants’ pages looking only for evidence of gang activity, the courts might find that that’s not an unreasonable search, says Dayanim.
“Employers are feeling squeezed,” he said. On the one hand, certain industries, like the securities industry, face liability for not monitoring what their employees are doing and saying, but on the other hand, they’re being told that some social media monitoring is too excessive.
The Minnesota high school student, at least, has a strong and relatively clear case. If there was no immediate threat posed by the sexy conversation she allegedly conducted with another student, school officials should have sought a warrant to get access to her Facebook account, or at least gotten permission from her parents.
The student athletes, on the other hand, who are forced to friend their coaches probably don’t have much of a legal argument to make. “They get a benefit: free tuition,” says Dayanim. “In exchange, they have to agree to this monitoring by a coach. If they agreed to that with the school in advance, that’s a legally sound practice.”