Lawfulness of Employers’ Demand for Facebook Password

Is it illegal for an employer to ask an applicant for his or her Facebook password as a condition of employment? That’s a hot question these days. In my last post, I explained that two U.S. Senators recently asked this very question to the Department of Justice. Specifically, they want to know whether this very unpopular practice violates the Stored Communications Act (SCA) or the Computer Fraud and Abuse Act. As described in my last post, the practice may constitute a violation of the SCA.

Are there other possible claims? Perhaps. One possible claim that comes to mind is tortious interference with contract. In Delaware, a claim for tortious interference with contract requires four elements. Let’s run through them and see whether a claim could be made.

First, there must be a valid contract. This is questionable but it is at least arguable that Facebook has a contract with each of its users. If we agree that a contract does exist, then the Terms of Use are the terms that govern that contract. And one of the Terms of Use is that the user agrees not to share his password.

Second, the “interferer” must have knowledge of the contract. I think it would be difficult to conclude that an employer does not know that Facebook’s Terms of Use provide that a user should not share his password. Thus, the employer has knowledge of the contract.

Third, the interfering party must intentionally interfere that induces or causes a breach of the contract. By asking that a candidate provide turn over his password, is an employer intentionally inducing the candidate to breach his contract with Facebook? Certainly seems that way.

Fourth, and finally, there must be damages. In other words, the candidate must be harmed by the interference. And here, my friend, is where our winning streak comes to an end. Damages? No, there are none.

I think you’d be hard pressed to show that you were damaged by sharing your Facebook password. Remember, it’s not the failure to hire that counts here–it’s the act that induces the breach of contract. And, in our scenario, the act that induces the breach is the act of “requesting” a candidate’s Facebook password. Trying to establish damages is a tall order that, in my opinion, would be difficult, if not impossible, to satisfy.

See also, Employers Who Demand Facebook Password. Oy Vey.

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