According to the Associated Press, “it has become common for managers to review publically available Facebook profiles, Twitter accounts and other sites to learn more about job candidates.” Companies that don’t ask for passwords ask applicants “to friend human resource managers or to log into [Facebook] on a company computer during an interview. Once employed, some workers have been required to sign non-disparagement agreements to ban them from talking negatively about an employer on social media.”
While stories about companies, colleges, and government agencies asking job applicants for access to their Facebook profiles have grown in recent months, the issue gained public attention when Bob Sullivan, of MSNBC’s The RedTape Chronicles blog, posted an article titled, “Govt. agencies, colleges demand applicants’ Facebook passwords.” According to Sullivan, the Maryland Department of Corrections has been asking job applicants to log into their Facebook accounts and allow the interviewer to look over their shoulder as they clicked through their profile. This is nothing new. In the past, applicants have been asked to provide the department with their username and password. While these Facebook reviews are voluntary, most applicants agreed to them assuming they were necessary for doing well in their interview.
However horrifying the FBI’s development of social media monitoring applications may appear, a story that I’ve written about previously, monitoring applications already exist and are in use. Colleges, for example, have been taking advantage of social media monitoring companies, particularly to monitor college athletes. Sullivan noted this in his article, writing about instances where colleges require their athletes to friend “a coach or compliance officer… and [provide] access to their ‘friends only’ posts.”
On Friday, Erin Egan, Facebook’s Chief Privacy Officer, issued a statement regarding this problem,
“As a user, you shouldn’t be forced to share your private information and communications just to get a job. And as the friend of a user, you shouldn’t have to worry that your private information or communications will be revealed to someone you don’t know and didn’t intend to share with just because that user is looking for a job. That’s why we’ve made it a violation of Facebook’s Statement of Rights and Responsibilities to share or solicit a Facebook password.”
This approach, one that both Facebook and some lawmakers are taking, focuses less on the issue of privacy and more on liability. Egan provides an example as a warning about overstepping, “if an employer sees on Facebook that someone is a member of a protected group (e.g. over a certain age, etc.), that employer may open themselves up to claims of discrimination if they don’t hire that person.”
Sullivan added to Egan’s point, writing that employers might not have proper policies and training to protect their company in handling applicant’s private information. “The employer may assume liability for the protection of the information they have seen or for knowing what responsibilities may arise based on different types of information (e.g. if the information suggests the commission of a crime).”
Hints about potential liability have already been raised. One of the most recent warnings was raised when a jury awarded $4 million on March 14 of this year to two separate families affected by the 2007 shooting at Virginia Tech after the school was found negligent due to their inability to warn students. Bradley Shear, a D.C.-based lawyer who practices cyber and social media law, suggested that the monetary damage could have been much higher if the school employed the use of a social media monitoring company.
“Now that two $4 million dollar jury verdicts have been returned against an academic institution for a delay in properly warning its students about a killer being on the loose on campus, imagine if a school follows the above advice by Varsity Monitor [@tombuchheim It is still best practice for the athletic dept to continue to monitor social media for brand and athlete protection & edu] and a tragedy occurs that social media monitoring should have warned against but did not? Instead of multiple $4 million dollar jury verdicts would it be multiple $25 million or $50 million or $100 million dollar negligent social media monitoring jury verdicts?”
While little legislation has been put forward to protect students against monitoring, legislators in several states including Connecticut, California, Washington, Illinois and Maryland have begun the process of introducing bills that would prohibit companies from asking employees or potential employees for Facebook passwords.
“Employers can’t ask in the course of an interview your sexual orientation, your age, and yet social media accounts may have that information,” a California state senator said.