Concerned about ending up in the newspaper due to the actions of their employees on Facebook, government agencies are increasingly dealing with the problem by requiring access to job applicants' social media accounts -- even though that may violate the people's First Amendment rights or their accounts' terms of service. In response, several states are considering legislation banning the practice.
This sort of thing isn't new -- as far back as 2009, the city of Bozeman, Mon., was assailed for its practice of asking applicants for their Facebook passwords -- but it's coming up again due to recent pieces in publications such as MSNBC and in the Atlantic where governmental organizations are continuing to ask for passwords from applicants or, if not passwords, at least access to employees' and applicants' social media accounts so they can be monitored.
"In Maryland, job seekers applying to the state's Department of Corrections have been asked during interviews to log into their accounts and let an interviewer watch while the potential employee clicks through wall posts, friends, photos and anything else that might be found behind the privacy wall," writes Bob Sullivan. " The blog Tecca.com last year showed what it said was an image of an application for a clerical job with a North Carolina police department that included the following question: "Do you have any web page accounts such as Facebook, Myspace, etc.? If so, list your username and password.""
Maryland Department of Corrections officials said their action was due to not wanting to hire known gang members to work in the department. Bozeman city attorney Greg Sullivan said at the time that the city's action was required to ensure employees will protect the public trust. And teachers, as well as the school district itself, in Palm Beach, Fla., were embarrassed in 2008 when a local newspaper searched for teachers' Facebook pages and printed what it found about their interests in drinking and sex.
Consequently, in addition to employers doing research directly, some organizations are setting up businesses in what they call "social screening," which gives employers the ability to find out if there's anything worrisome on an applicant's Facebook page without raising the possibility that applicants could make a claim that they were turned down due to "protected class" information such as age, sex, religion, or orientation.
Now, the American Civil Liberties Association is getting involved, calling such searches -- even if just by requiring access to a page -- an infringement of people's First Amendment rights. Moreover, some social networking sites consider passing on passwords to be a violation of their terms of service, which some judges have ruled is a criminal act -- a woman who created a fake MySpace account to harass her daughter's classmate, who ended up committing suicide, was eventually charged with fraud for violating MySpace's terms of service.
(Ironically, in another situation, teachers are being *forbidden* from being "Facebook friends" with students, out of concern for inappropriate relationships.)
The ACLU reports that the Maryland Department of Corrections has since suspended its policy for at least 45 days while it examines the situation. And according to MSNBC's Sullivan, Maryland and Illinois are both considering laws forbidding the practice, while quoting Washington, D.C. attorney Bradley Shear on his wish to see a federal law forbidding the practice.
Meanwhile, experts in the field are also providing advice to both employers and applicants on how the employers' fears can be assuaged while protecting the privacy of applicants.