Government workers, especially in law enforcement, are being asked to turn over their Facebook login information so that prospective employers can check for inappropriate photos, relationships or behavior. According to news reports, the Norman, Okla., Police Department asks recruits, as part of its six-month hiring process, to provide the department with login details. The department examines Facebook friends and wall posts on Facebook and other social networking sites to delve into recruits’ past.

Paul Rubell, a social media attorney and partner in the Mineola, N.Y.-based Meltzer Lippe law firm, told Govpro that public employers may be slipping into a legal quagmire if they request recruits to provide social media login/password data. The issues, he said, may include first amendment and privacy concerns, exposure to civil liability, violating protected classes during the hiring process, and violating the Stored Communications Act.

“The Stored Communications Act makes it unlawful to access a person’s electronic communications without the user’s authorization. And though potential employees may be providing agencies their Facebook login info, the courts may interpret the conditions surrounding their “authorization” as a coercive act — given that the authorization is being requested in the midst of a job interview,” Rubell said.

In addition, by engaging in this practice, a government employer runs the risk of stumbling upon protected class information, such as a person’s sexual orientation or whether or not she is pregnant, Rubell said. “We know that in a job interview an employer is not allowed to make hiring decisions because someone, for instance, is a minority or because a woman is pregnant,” Rubell said. “An employer would be hard pressed, I think, to defend against the claim that it stumbled upon protected class information as a result of perusing a person’s Facebook or Twitter page, and that [the information] didn’t factor into its hiring decision.”

The New York-based American Civil Liberties Union (ACLU) has weighed in on a case involving Robert Collins, a Maryland corrections officer, who contacted the ACLU of Maryland late in 2011, disturbed that he was required to provide his Facebook login and password to the Maryland Division of Corrections (DOC) during a recertification interview. Collins had to observe while the interviewer logged on to his account and read not only his postings, but also those of his family and friends.

“We live in a time when national security is the highest priority, but it must be delicately balanced with personal privacy,” Collins said. “My fellow officers and I should not have to allow the government to view our personal Facebook posts and those of our friends just to keep our jobs.”

It’s a growing trend, said Catherine Crump, staff attorney with the ACLU Speech, Privacy and Technology Project. “Increasingly, government and other employers are asking job candidates and even current employees to hand over their social network login information. This is a major invasion of privacy. Everyone is entitled to a private life, and employers should not be engaging in fishing expeditions by going through their employees’ private profiles just to see if they can find something of interest. The ACLU has supported social networking privacy legislation in Maryland to put a stop to this practice, and other states should consider similar legislation. There is no reason for Americans to tolerate this invasion of their privacy,” Crump told Govpro.

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