Sunday, February 20, 2011

Maryland's Division of Corrections Demands Applicants Provide Facebook Usernames and Passwords During Interviews

Some employers and other institutions are quietly demanding that employees and applicants turn over their social media user names and passwords as part of the background check process. According to a story in The Atlantic, Maryland Division of Corrections (DOC) Officer Robert Collins alleged that the State of Maryland recently demanded that during a re-certification interview he was required to provide his employer his personal Facebook user name and password.

Mr. Collins turned over the requested information because he wanted to keep his job but then contacted the ACLU about his experience. According to the ACLU, there may be some issues under the Federal Stored Communications Act and Maryland state law that may have been violated with this demand. Whether demanding an employee or applicant to turn over his Facebook login information is legal is a question that may one day be decided by the courts and/or state legislatures and/or Congress.

Under Section 4.8 of Facebook's Statement of Rights and Responsibilities (Revision Date: October 4, 2010) it states, "You will not share your password, (or in the case of developers, your secret key), let anyone else access your account, or do anything else that might jeopardize the security of your account." Turning over one's Facebook login information to an employer or any other third party may violate Facebook's Terms of Use. An employee and/or job applicant may be put in a Catch-22: turn over your Facebook access information or lose your job and/or you won't be offered a job. However, if you turn over your Facebook access information to a third party, Facebook may terminate your Facebook account. Interesting dilemma.

This is not the first time I have heard about this type of situation and I predict there will be a tremendous amount of litigation on this point in the future. In 2009, the City of Bozeman, Montana tried to force its job applicants to turn over their social media account(s) access information. After a national uproar this policy was discontinued. However, this background check approach is still being tried across the country.

While at a conference last year, one of the participants told me that during a college admissions interview of a neighbor's son, the applicant was requested to turn over his Facebook user name and password. The college applicant had no problem turning over his "official Facebook user name and password" because the high school student had two Facebook accounts.

This high school student's "official Facebook account" that was turned over to an admissions interviewer on the spot was sterile and was the one that his parents had friended him on to keep track of his online activity. The applicant's real Facebook account contained information that most likely would have kept the applicant from being accepted to his dream school or any other academic institution.  These demands are generally targeted at student-athletes.  Some student-athletes at major college sports powerhouses are being required to Facebook friend coaches and/or install spying software onto their personal social media accounts/computers.

Having more than one Facebook account is becoming more common and I encourage some of my clients to have multiple Facebook accounts in case they are ever "requested" to turn over their Facebook user name and password.  I recommend that most employers in both the private and public sector review and update their personnel policies to ensure that they properly address social media usage. There is no one size fits all policy so employers may want to work with their employees, human resource departments, and their lawyers to draft appropriate social media policies.

New York City's Police Department has a different culture than Andy Griffith's Mayberry Police Department so I would not recommend Mayberry copying the NYPD's social media policy because what may be acceptable in NYC may not be so in Mayberry and vice versa. In addition, different departments within a government may have different social media policy needs. For example, The City of New York Mayor's Office of Film, Theatre, and Broadcasting may have different needs than NYPD's Counterterrorism Units.

Therefore, it is important that employers work with their employees to create fair and reasonable social media policies that protect an employee's right to privacy and balance that need with an employer's right to know. I predict that a case(s) regarding these issues will eventually reach the Supreme Court of the United States.

To learn more about the legal, political, and business ramifications of social media policies you may contact me at www.shearlaw.com.

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.