By: Jeffrey Fann
As many 3Ls across the nation will tell you, it isn’t easy landing a job these days, and for many, even getting interviews is proving difficult. Now imagine being on an interview and being asked to provide your potential employer with your Facebook login email and password. Would you oblige for the sake of keeping your employment hopes alive or refuse and stand up for your right to privacy? It seems this invasive hiring practice has been gaining steam and its alarmed Facebook enough that the social media giant has released a blog post about the topic. When Facebook (the same company that is perennially getting in trouble for violating your privacy rights) is fighting for your privacy rights, you should consider yourself officially on notice that something fishy is going on. If instead, you fall in the “I don’t mind, I’ve got nothing to hide” camp, then giving up your right to privacy here might not seem so dangerous. After all, what is really at stake here?
The answer: more than you might realize. You know how you can change your Facebook settings to allow only your friends to see some, or all, of your information? Well so do your friends, and it’s likely that many of them don’t want their “friends only” information being viewed by your prospective employer. Facebook has included in their “Statement of Rights and Responsibilities” that you are committed to not share your password or transfer your account, in part for this reason. So even if you’re comfortable with baring it all, you may be releasing information that was shared with you in confidence.
Don’t have any friends on Facebook? Still not persuaded? What if the request extended to your Gmail or Yahoo! account? And what other accounts would follow? Some would argue that employers crossed the line long ago when they reserved the right to access employee email, without cause or justification. That slippery slope is now in full effect right before our eyes. In 2009, it came to light that as part of its hiring protocol, the city of Bozeman, Montana was asking for access to nearly every social media account you owned, from MySpace to Google.
Even if it is a detestable practice, it’s understandable why an employer would want this information, but do the benefits outweigh the risks? Those risks span both practical and legal concerns. On the practical side, incessant monitoring and invasions of privacy destroy employee morale and encourage an atmosphere of paranoia. On the legal side, some state wiretap laws require that both parties involved in an electronic communication consent to the interception of such communication. If an employer, logged in as a potential employee, were to view such a communication as it arrived, would there be a cause of action? What if an employer discovers that a potential employee has a non-obvious disability through a Facebook account and later decides not to hire?
For companies willing to take on that risk, there are some additional concerns. Once you’ve obtained someone’s username and password, whether written or electronically, are you working to ensure that the information doesn’t fall into the wrong hands by securing physical copies? Are usernames and passwords deleted from browser history and saved settings after an account has been accessed (it’s pretty easy to accidentally check the “keep me logged in” button)? Is that electronic information otherwise stored safely? Envision a large company storing the login information for thousands of Facebook accounts obtained from everyone who has ever applied for work. Now imagine the fallout and legal exposure that would follow if that company somehow lost control of that information via hacking or a disgruntled HR employee acting in bad faith. The problem is severely worsened by the fact that many people use similar passwords across many accounts, including personal email and financial accounts.
This problem doesn’t just have Facebook up in arms, Senator Richard Blumenthal (CT-D) has said he is drafting a bill that would outlaw the practice. He’s told political news website Politico that he believes the practice to be an “unreasonable invasion of privacy.” While the senator is busy getting that bill drafted, we can all do our part in protecting ourselves and the information shared by us and with us. So if you are prompted during an interview to share your Facebook (or other social media) login and password, recognize what is at stake and decline.
Professor Johnson of New York Law School also contributed his opinions to this entry.