The Dangers of Employer Facebook Checks
Fellows and Associates’ independent correspondent
Samuel Ali takes a closer look at the recent reports of employers asking for
Facebook login details, and the love-hate relationship between privacy and
social networking.
Two American Senators have asked the US Attorney General, Eric Holder, to
investigate the legality of the practice revealed by the Associated Press of
employers requesting jobseekers to disclose Facebook and other online personal
log-in passwords for the purposes of screening. Whilst the report particularly
highlights governmental police and security positions, it is emerging that
private employers have also made the request. At the heart of this story is the
privacy contradiction of social media. Facebook is both a network of living
communities and a vast organic information database.
As social media have been marketed to users as secure communities, the
public are unsurprisingly outraged when their information is exploited. “It’s
akin to requiring someone’s house keys,” stated Orin Kerr, a law professor at
George Washington University and former federal prosecutor in an article on
Yahoo! news.
Facebook has posted its own denunciation of the practice, warning employers
that they might be violating anti-discrimination and data protection laws.
However, as the laws in the US and the UK stand, it is not clear that
asking for social media log-in access from job applicants is illegal and, even
if it was, whether it could be stopped. In the UK, the Information
Commissioner’s Office has said that it would have “very serious
concerns” if employers did ask potential or actual employees for such
access. However, employment lawyers have suggested that without the existence
of an employee-employer relationship, job applicants would be relying on
non-contractual discrimination and data protection law for protection. An
applicant who claimed that they were rejected by an employer on discriminatory
grounds would find it difficult to prove this point. Data protection laws give
some leeway to employers to gather information on individuals, though it should
not be excessive.
Moreover, the cases raised by the Associated Press’ report reveal that the
practice has been quietly occurring in the US for some time, suggesting that
economic pressures discourage dissent. In 2010, security guard, Robert Collins,
was asked for his Facebook log-in details at a reinstatement interview for what
the Maryland Department of Public Safety and Correctional Services said was a
gang affiliation check. He needed the job so obeyed. The sheriff’s office in McLean
County, Ill., has maintained the practice as part of pre-employment checks
since 2006 and, according to Chief Deputy Rusty Thomas, no-one has refused.
In the UK, The Telegraph is reporting that such a password request was made
to an online retail worker from the Midlands, Lee Williams, by the managing
director of his current employer who found it suspicious that Williams’ profile
page was private. He refused but retained his job.
It would seem that the economically weak and those seeking work involving
sensitive persons or information are most vulnerable to employers’ password
requests. The practice cannot be wiped out but legislation, as being proposed
in Maryland as a result of Robert Collins’ case, and now being championed by
Senators Richard Blumenthal and Charles Schumer, at federal level, will
encourage a fairer approach.
Facebook as a vast database
The reality is, however, despite Facebook’s condemnation of employers’
using their service as a screening tool, that social media is a vast database
mined for commercial, political and security objectives. In our use of it, we
should not lose sight of the fact that nothing is truly private on the
internet.
Facebook’s own privacy policy reads:
“Although we allow you to set privacy options that limit access to
your information, please be aware that no security measures are perfect or
impenetrable. We cannot control the actions of other users with whom you share
your information. We cannot guarantee that only authorized persons will view
your information. We cannot ensure that information you share on Facebook will
not become publicly available.”
It is well known that social media sites, such as Facebook, collect, analyse and distribute user information for advertising purposes. They also store and
share this information with security agencies. Currently, Facebook faces a
potential class action law suit, filed in the US District Court, Washington District,
for allegedly placing cookies on their site which track user activity after
they have logged out.
Dissemination of private information can also happen accidentally. In March
2009, a bug caused Facebook user’s private profiles to become partially
accessible to the public. In the same month, Google’s Google Documents
application suffered a malfunction which inadvertently shared some users’
documents with strangers. The next month, Twitter reported that some users’
private direct messages had gone to the wrong recipients.
The straightforward moral is the undeniable cliché that the internet is not
private – even email services or social media sites which encourage a sense of
intimacy and privacy. The risk goes beyond potential embarrassment or job rejection. It is that personal information can be used to discriminate
against the individual, which, conducted in an organised fashion, could result in
oppression.
This article reflects the opinion of the author only. If you have any
comments or feedback, drop us a line at [email protected].