Demanding Facebook Passwords May Break Law, Say Senators

PHOTO: The Facebook homepage appears on a computer screen, Washington, Aug. 30, 2010.
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It's become standard practice for employers and schools to peruse potential applicants' Facebook profiles. But in some cases, they are going even further: Some have demanded applicants hand over their passwords so they can view individual's restricted profiles.

Justin Basset is just one of those individuals. Basset was finishing up a job interview, according to the Associated Press, when he was asked to hand over his Facebook login information after the interviewer couldn't locate his profile on the site.

Others have reported similar situations, in which employers, potential employers, or colleges have asked for Facebook passwords so they can inspect people's profiles.

"It's an invasion of privacy for private employers to insist on looking at people's private Facebook pages as a condition of employment or consideration in an application process," said Catherine Crump, an American Civil Liberties Union attorney, on the ACLU's website. "People are entitled to their private lives."

Other privacy groups have expressed similar opinions since the Associated Press' story ran last week -- and even Facebook's own privacy officer, Erin Egan, weighed in.

"In recent months, we've seen a distressing increase in reports of employers or others seeking to gain inappropriate access to people's Facebook profiles or private information," Facebook's Egan said.

"This practice undermines the privacy expectations and the security of both the user and the user's friends. It also potentially exposes the employer who seeks this access to unanticipated legal liability."

And the legal issue has brought government officials, including a number of senators to fight this practice. Today, New York Senator Charles Schumer and Connecticut Senator Richard Blumenthal asked the U.S. Department of Justice to investigate if the practice violates federal laws. The full letter from the senators can be found here.

Schumer and Blumenthal said in the letter that they are "drafting legislation that would fill any gaps in federal law that allow employers to require personal login information from prospective employees to be considered for a job."

Maryland Senator Ronald Young has already been fighting that fight in his home state. After hearing that an applicant at the Department of Corrections in Maryland had to sit and watch his employer go through his Facebook page and that student athletes were being forced to share their Facebook logins with schools, Young drafted a Social Media Privacy bill.

"I put in two pieces of legislation to stop these practices. It is an infringement on constitutional rights," Sen. Young told ABC News. "Lots of these organizations don't realize they are asking the same thing as monitoring a phone call or reading your personal mail." Some schools require students to download social media monitoring software, like UDilidence and Varsity Monitor, which can access their password-protected content.

The legislation, which was submitted last year, has passed the Maryland State Senate; it is now in the House.

However, even without this legislation, what many of these employers and universities are doing could be illegal. Since employers may be exposed to private information such as age, national origin, race, they could be violating the Stored Communications and Computer Fraud and Abuse acts.

Bradley Shear, a social media lawyer and expert in the field, also mentions that if they are a public institution they could be violating the first, fourth, and fifth amendments.

Still, Shear said, updated legislation is needed to solve this problem.

"Until someone says no, you can't do it, they are going to do it -- that's why the legislation is important. This legislation is needed on a state and a national level. It's that simple."

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