Hey, Get Out of My Face(book)

March 31, 2012 -- Over the past few months there's been a growing hue and cry over reports that some employers ask job applicants for their Facebook login and password information as part of the vetting process. They are hardly alone, though it's not easy to know just who's doing it and who's not. But this is not new–some state and local government agencies, particularly law enforcement agencies, have been doing it for years.

To wit, the job application form for government positions in the city of Bozeman Montana desultorily requested information on all websites and social networking sites used by an applicant, as if asking for something as pedestrian as the date of the application. Folks got pretty riled up about it. The city finally stopped the practice in 2009, and in doing so said something interesting:

"The extent of our request for a candidate's password, user name, or other internet information appears to have exceeded that which is acceptable to our community. We appreciate the concern many citizens have expressed regarding this practice and apologize for the negative impact this issue is having on the City of Bozeman."

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In Bozeman, the city fathers stopped the practice neither because it was illegal under federal or state law, nor because it was immoral or intrusive, but rather because it was unacceptable to the community. Presumably, it was hurting the city, both in terms of general public relations as well as in deterring job applications. Reportedly, several sheriff's and corrections departments in places as disparate as Virginia, Illinois, and Maryland also ask questions along the same lines.

In response, legislation to prevent such intrusive practices has been introduced in some states. Recently, Facebook itself made it plain that giving out one's password to a third-party was against company policy, and that it would take legal action if necessary to enforce that policy. And, in the past few days, U.S. Senators Charles Schumer (D-NY) and Richard Blumenthal (D-CT) asked the Justice Department to investigate, in particular to determine, whether or not the practice violates the existing federal Computer Fraud and Abuse Act.

The reactions to date are indicative of something most people feel instinctively—that this practice is downright skeevy. It is unduly intrusive, perhaps coercive.

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Maybe if there were five jobs for every applicant it wouldn't feel so coercive. But when there are 50 applicants for every job, it feels downright extortionate. The reaction also indicates something more subtle: Right now, people aren't quite sure whether the practice is blatantly illegal or not, but if it's not, they sure want it to be. In the usual morass of federal and state regulation of employment practices, there are plenty of things that employers are not permitted to investigate, such as religious beliefs, matters of race and sexual preference, and age. These categories are "protected" because they involve fundamental civil rights as provided for in the Constitution.