Facebook Access May Be Denied – By The Feds

Here’s a Bloomberg post about the possibility of the Justice Department investigating whether employers who require prospective employees to give them access to confidential Facebook passwords are violating federal law. This request may take on a bit more urgency given that Congress on Tuesday voted down a measure that would have allowed the FCC to police the practice.

The employers who make that request are apparently interested in finding out as much as they can about prospective employees. Charles Schumer, one of two senators who have asked the Justice Department to look at the question (Richard Blumenthal is the other senator on this) thinks it’s like demanding employees to turn over their diaries. Schumer and Blumenthal have asked whether the practice violates the Computer Fraud and Abuse Act and/or the Stored Communications Act. Both statutes essentially ban “unauthorized access” to computer data. So the question is whether a prospective employee’s decision to provide password information to a potential employer is sufficient “authorization.” There is an argument that coerced authorization is not valid. And there is at least some precedent for that argument. In Hillstone Restaurant Group v. Pietrylo, a federal court in New Jersey found that a restaurant violated the Stored Communications Act when its managers accessed an employees only MySpace page. The managers obtained the password to the page from an employee. The court found that the employee was “strong armed” (did I mention the case was in New Jersey?) into giving up the password. It will be interesting to see what the Justice Department does here. The Hillstone case may be distinguishable because in that case, the coerced employee was giving up information concerning third parties, whereas in prospective employee situation the employee is only providing information about himself. And the prospective employee can always look elsewhere for a job. But putting aside the legal issues, I wonder if any employer really wants to take on the PR hit when word gets out that they are doing this. There’s a pretty high creepiness factor I think.