Why private companies can — legally — ask for access to your Facebook profile

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How private can you keep your facebook?

With the mass popularization of Internet use, and our desire for constant information, the notion of privacy has become one of the most important, and most talked about, issues on the table.

With the recent news, met largely with outrage (fake or otherwise), that some employers are requesting social media log-in details from job candidates, we should take a closer look at what privacy rights actually mean between people and private organizations.

With a slew of cases hitting the Supreme Court, the “Fourth Amendment” has almost become synonymous with the idea of “privacy” in the public imagination. But what is often not so clear is that this amendment only polices interactions between citizens and their government. In other words, the rights enumerated in the constitution are designed to protect citizens from the abuses of government bodies, not the seeming abuses of private individuals or organizations.

What this means is that according to the laws of each state, the private sector can actually go much further than what is allowed under the constitution. Does this extend to asking for private log-in details? Whether we like it or not, legally, it probably does.

Private companies can ask for your social security number, they can require you to take a drug test and they can complete other background checks as a condition of employment. How? They contract for it and we agree to sign on the dotted line.

So long as it’s not illegal behaviour, you can contract for just about anything. Asking for social media access is not classified as discrimination, and at the moment it is not illegal at the state or federal level.

At a federal level, the House just voted down an amendment stopping employers from asking for Facebook credentials. At the state level, Maryland and Illinois are considering laws forbidding public agencies for requiring access to social networks, but the legislation will have no impact on the actions of private companies.

While it may feel like a gross invasion of your privacy when a potential employer asks for your social media details, at the moment at least, private companies are free to do what they want, and can contract.

There are, however, two niggling things that might change the way employers are behaving.

1. Uneven bargaining power can void a contract.

For example, because you need a job to pay your rent and buy groceries, your right to refuse any demands by the potential employer is essentially irrelevant. “Volunteering is coercion if you need a job,’ commented Lori Andrews, law professor at IIT Chicago-Kent College of Law. Mr. Bassett, one man at the center of this story explains that “If you need to put food on the table for your three kids, you can’t afford to stand up for your belief.”

2. Facebook’s own Terms and Conditions bar the solicitation of this private information.

You will not collect users’ content or information, or otherwise access Facebook, using automated means (such as harvesting bots, robots, spiders, or scrapers) without our permission.

You will not solicit login information or access an account belonging to someone else.

While the Department of Justice has declared that entering a social networking site in violation of the terms of service is a federal crime, during recent congressional testimony the agency said such violations would not be prosecuted. It seems, then, that these terms have no real legal weight.

The word from Facebook? Don’t pursue this course of action unless they want to get sued!

“This practice undermines the privacy expectations and the security of both the user and the user’s friends,” said Erin Egan, the site’s chief privacy officer, on the site’s Facebook and Privacy Page.

“It also potentially exposes the employer who seeks this access to unanticipated legal liability,” she continued. Employers may face the unexpected consequence of opening themselves up to claims of discrimination if they see the person is a member of a protected group, on Facebook, and then don’t hire them.

The takeaway? Even though Facebook users, myself included, might treat the site as a private space — somewhere for sharing information with selected  friends and family as you would in your home, comparing Facebook to a home is still quite a leap; a leap it will take the law a while to make.

About Charley Moore

Charley is the Publisher of Article 3, as well as Founder and CEO of Rocket Lawyer Incorporated. Prior to founding Rocket Lawyer, Charley advised early stage companies, large enterprises and their investors on strategic partnering and corporate development strategy. Charley has been at the forefront of Internet corporate development since beginning his career as an attorney at Venture Law Group in Menlo Park, California in 1996. He represented Yahoo! (IPO), WebTV Networks (acquired by Microsoft) and Cerent Corporation (acquired by Cisco Systems) at critical early stages of their success and was the founder of Onstation Corporation. Charley graduated from the United States Naval Academy (BS), San Francisco State University (MS) and the University of California at Berkeley (Juris Doctorate). He served as a U.S. Naval officer and is a Gulf War veteran.
Posted in: Constitutional, Internet, Law, Privacy, Social Media, Tech and Environment
  • Bruce Epper

    What these companies need to consider is this: Say I am a network administrator at their company and I am unhappy about the large executive pay raises and bonuses because I don’t get what could even be considered a cost of living adjustment while they are offshoring my co-workers leaving a much larger job for me to do the entire time. I no longer care for this situation and I am interviewing at another company. Now that company wants my credentials to log into their competitor’s network. Since it is a requirement for my employment at this other company, I should allow it, right?

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