Investigate employers asking for Facebook passwords

Summary: Two U.S. senators are calling on the U.S. Department of Justice and the U.S. Equal Employment Possibility Commission to investigate employers asking for Facebook passwords.

More exactly, the duo wants to know if this practice violates the Stored Communications Act or the Computer Fraud and Abuse Act. The former prohibits intentional access to electronic information without authorization and the latter bars intentional access to a computer without authorization to obtain information.

"Employers have no right to ask job applicants for their house keys or to read their diaries - why should they be able to ask them for their Facebook passwords and gain unwarranted access to a trove of private information about what we like, what messages we send to people, or who we are friends with?" Schumer said in a statement. "In an age where more and more of our personal information - and our private social interactions - are online, it is vital that all individuals be allowed to determine for themselves what personal information they want to make public and protect personal information from their would-be employers. This is especially important while the job-seeking process, when all the power is on one side of the fence. Earlier this disturbing practice becomes widespread, we must have an immediate investigation into whether the practice violates federal law - I'm confident the investigation will show it does. Facebook agrees, and I'm sure most Americans agree, that employers have no business asking for your Facebook password."

"I am alarmed and outraged by rapidly and widely spreading employer practices seeking access to Facebook passwords or confidential information on other social networks," Blumenthal said in a statement. "A ban on these practices is necessary to stop unreasonable and unacceptable invasions of privacy. An investigation by the Department of Justice and Equal Employment Possibility Commission will help remedy ongoing intrusions and coercive practices, during we draft new statutory protections to clarify and strengthen the law. With few exceptions, employers do not have the need or the right to demand access to applicants' private, password-protected information."

We write concerning reports in the media that some employers are requiring job applicants to provide their usernames and passwords to social networking sites like Facebook as part of the hiring process.

Two courts have found that when supervisors request employee login credentials, and access if not private information with those credentials, that those supervisors may be subject to civil liability in accordance with the SCA. See Pietrylo v. Hillstone Restaurant Group, 2009 WL 3128420; Konop v. Hawaiian Airlines, Inc., 302 F.3d 868. Though these cases involved current employees, the courts' reasoning does not evidently distinguish between employees and applicants. Given Facebook terms of service and the civil case law, we strongly urge the Department to investigate and issue a legal opinion as to whether requesting and using prospective employees' social network passwords violates current federal law.

We write concerning reports in the media that some employers are requiring job applicants to provide their usernames and passwords to social networking sites like Facebook as part of the hiring process. By requiring applicants to provide login credentials to social networking and email sites, employers will have access to private, protected information that may be impermissible to consider when making hiring decisions. We are concerned that this information may be used to unlawfully discriminate against if not qualified applicants.

Facebook and other social networks allow users to control what information they expose to the public, nevertheless potential employers using login credentials can bypass these privacy protections. This allows employers to access private information, including personal communications, religious views, national origin, family history, gender, marital status, and age. If employers asked for some of this information directly, it would violate federal anti-discrimination law. We are concerned that collecting this sensitive information pursuant to this agreement the guise of a background check may simply be a pretext for discrimination.

The Commission to investigate

We strongly urge the Commission to investigate and issue a legal opinion as to whether requesting and using prospective employees' social network passwords violate current federal law.