Employers Who Demand Facebook Passwords. Oy Vey.

Posted by Molly DiBiancaOn April 2, 2012In: Social Media in the Workplace

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Employers who require job-seekers to turn over their Facebook passwords remain a mystery to me. Really, what are they thinking? As if the potential negative publicity alone is not enough of a deterrent, you'd think that employers would be aware that there are potential legal implications, as well.

As the WSJ Law Blog reports, Sens. Richard Blumenthal, D-Conn., and Chuck Schumer, D-N.Y., took up the issue on a federal level. The Senators wrote to the EEOC and U.S. Department of Justice, asking both agencies to investigate the practice of requiring applicants to provide their social-networking-site log-in information during the hiring process.

The letter to the U.S. DOJ sought a legal opinion as to whether the practice violates the Stored Communications Act (SCA) or the Computer Fraud and Abuse Act (CFAA). The letter cites Pietrylo vs. Hillstone Restaurant Group, as support of the proposition that mandating Facebook log-ins violates the SCA.

Potential Legal Violation

I agree with their assertion that Peitrylo would support a claim under the SCA. In that case, the employer was found to have violated the SCA when it accessed employees' private MySpace chat room. Managers had obtained the password and log-in information of another employee. That employee, a hostess at the defendant-restaurant, testified at trial that she turned over her password to the managers only because she believed that she'd be fired if she failed to accede to the request.

If the same logic were applied to applicants who are "asked" for their passwords, the result would be the same--the employer would be in violation of the SCA, just like the employer in Pietrylo. This interpretation of the SCA is not universally accepted, though. The SCA is a challenging statute and its application is difficult to predict.

That said, though, most employers do not want to be the test case. To avoid potential risk under the SCA (and for a variety of other reasons, legal and non-legal), employers should not "request" an applicant's password for Facebook or other social-networking site.

Facebook

Facebook also is speaking out against the practice. On March 23, the uber-popular site wrote a blog post about the issue, stating: "If you are a Facebook user, you should never have to share your password, let anyone access your account, or do anything that might jeopardize the security of your account or violate the privacy of your friends.  We have worked really hard at Facebook to give you the tools to control who sees your information."

Legislative Efforts

In Washington, there was one recent attempt to put an end to this highly unpopular practice. According to the Orlando Sentinel, Rep. Ed Perlmutter, D-Colo., introduced the proposal as part of a bill to reform the Federal Communications Commission. House Republicans blocked the proposed amendment on Tuesday, reported the Huffington Post.

Blumenthal is also drafting on a bill that would prohibit employers and prospective employers from requesting access to Facebook accounts. California State Senator Leland Yee, introduced similar legislation on Friday.

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