Why Hasn't Congress Stopped Your Boss From Asking for Your Passwords?

In the past five years, I have had some pretty terrible haircuts. All of them have been documented on Facebook. All of them would get me fired from my current job. Now think about all the pictures of me and my imbecilic friends playing air cello, air broom and air Canadian Crest. One glance: Fired.

Imagine you’ve made it into the second round of interviews at a prospective employer, and they ask for your Facebook password in order to have a look around. (Yes, this actually happens.) Unless you've been poised for a career in politics (or you are a total lame-o), you're probably not too pumped on what they are about to see. And from a legal perspective, it sure sounds like an intrusive proposition.

In some states, such conduct would be illegal. California is the latest state to enact a law that prevents employers from requesting access to an employee's or a prospective employee's social media account. Already, Delaware, Maryland, and Illinois have enacted similar legislation, and in 2012 alone 14 states have considered laws that would restrict employers from requesting access to social networking usernames and passwords of applicants, students, or employees.

At first glance, this seems like no-brainer legislation. The thought for most social media users, as evidenced by uproars over Facebook's various privacy changes, is that “It's my account, meant for a specific audience, and I should have the ability to limit who sees it.” And at the state level, this legislation has been met with almost no opposition. Of all the final votes (after amendments), nearly all of these bills passed unanimously. Yet at the federal level, no such social media privacy law exists.

Last March, the House of Representatives considered a proposed amendment to H.R. 3309 of the Federal Communications Commission Process Reform Act of 2012, which would have prohibited employers from demanding employees' social networking usernames and passwords — and would have allowed the FCC to intervene on behalf of employees and their privacy. The proposed amendment was voted down 236-184 on party lines; only one Republican voted for it.

Ed Perlmutter (D-CO), who proposed the amendment, stated that “People have an expectation of privacy when using social media like Facebook and Twitter. They have an expectation that their right to free speech and religion will be respected when they use social media outlets. No American should have to provide their confidential personal passwords as a condition of employment.”

With such overwhelming support at the state level, and such partisanship at the federal, it begs the question: Who would ever vote against legislation like this?

First of all, before we castigate the U.S. House of Representatives, H.R.3309 was a bill about amending FCC procedures, to streamline the investigative process and create more independence within the regulatory agency. Perlmutter's proposed amendment was a late addition, and was ancillary to the core of the legislation. House Republicans indicated that the amendment was simply not helpful that that particular bill, and they would be open to a separate social-media amendment in the future.

But coming from a policy perspective, what legislator would ever vote against social media privacy, and why?

From the employers' perspective, a company has a keen interest in knowing its applicants. All it receives is a fluffed-up resume and a one-sided sales pitch of why you would be a good fit for the team. They might run a basic background check to make sure you aren't a serial criminal, but even that won’t show much. I don't blame businesses for wanting to figure out if you are the type of person who is going to show up bleary eyed and hungover every Friday morning.

So they want information, they want to gauge your habits, your ethics, your style. Your social media data is incredibly valuable (a) because it is personal, and (b) because it is more than likely truthful. Your social media disclosures are maybe more valuable than the interview itself. So answer number one, cynically, is that legislators tied to corporate entities will shy away from limiting those entities' ability to gather information.

But companies might also want access to employees' social media accounts to investigate allegations of sexual misconduct or workplace harassment. Prior to the final vote in California, Senator Ted Gaines (R-Rocklin) indicated a slight hesitation regarding one proposed form of the act, stating that access to some of these social media accounts might be helpful in harassment investigations. Gaines told the Sacramento Bee, “I want to make sure we are protecting people’s privacy…[but] I have a concern with being able to address early harassment issues.” His hesitation was quelled after the California legislature built in an exception for such circumstances.

Access to social media accounts might also be helpful in investigating information leaks, disparagement claims, or defamation suits. Therefore, ironclad language that prohibits all access would potentially stymie necessary investigative efforts. In another vein, universities want to be able to monitor their collegiate athletes to ensure that they are abiding by NCAA policies. Tweets about sipping on Nutcracker the night before game day might be helpful in both determining the contractual eligibility of the player, as well as whether he is fit for the starting lineup.

Finally, it should be noted that just because you think your posts are “private” doesn't mean that they can't be exposed during a trial. Discovery is the pre-trial phase where parties to litigation are able to “discover” some of their opponent's information. Business records, earning statements, private emails, even social media, all can be subject to discovery. In that sense, an employer may be able to request information regarding an employee's social media use in order to combat certain claims by that employee. For example, a plaintiff claiming workplace discrimination and extreme emotional distress, might have his/her claims for damages mitigated by contradictory status updates. If a discovery request to see a plaintiff's facebook photos is relevant to a particular claim, a Court might grant an employer access to that information.

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While such discovery requests have indeed been granted in the past, a California District court recently denied a company's broad discovery requests, indicating that “the requesting party must show that the sought-after information is reasonably calculated to lead to the discovery of admissible evidence.” (The case involved a former Home Depot employee who alleged emotional distress amidst what she labeled a sexist environment.) This is good news if your former employer can't articulate a good enough reason to get access to your social media posts, but leaves the door open for such discovery if the information (you posted photos of you drinking on the job) is relevant to the claims at issue (you were drunk on the job).

And if your privacy settings are set to public, it's game over. Back in 2007, a woman who fatally injured a co-worker in a drunk driving accident had her pleas for leniency denied when the judge found pictures of her on her Myspace page page wearing an “I heart Patron” t-shirt and drinking with friends after the fatal accident. The judge found that such images indicated a lack of remorse that warranted a tougher sentence. There may be separate ethical questions about why the judge was surfing Myspace in the first place, but regardless, if it's open to the public, your expectation of privacy is, well, that you should have none.

While it is fundamental that much of our speech is protected by the First Amendment, the extent of that forum, and the reach of its trajectory are somewhat blurred when it comes to the social media posts. Arguably, you get to limit your audience at the time of posting, so you should be able to maintain that privacy even after the post grows stale. But if social media is being used for unlawful activity, we may want to be careful not to hastily draft legislation that makes it unnecessarily difficult to gain access to that information. On the other hand, I don't want Charlie Rangel riffing through my status updates.

If things continue the way they are going, most states will address this issue with legislation at the state level, with federal cases being dealt with in the courtroom. How any of these cases will turn out, and what kind of precedents will be set, is the stuff law professors dream of. Until the dust settles, I can only suggest that now’s as good a time as any to finally break up with Facebook.

• See also Here Are 20 Jackasses Who Tweeted about Driving Drunk While Driving Drunk

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