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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.”

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.

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.

Outside of those protected categories, employers have pretty broad latitude in terms of what they can ask or investigate about a particular job applicant. They can’t ask you where you go to church, but they can ask you what restaurants you like. They can ask you where you shop for shoes, or if you like soccer more than basketball, or if you swear frequently, or even a long series of Monty Python-like idiotic questions, like “what is your favorite color?” Actually they probably could legally ask you for most everything they might find out from your Facebook account. Employers don’t do that, and never have, probably because before the advent of social networking sites it would take a great deal of time and effort to verify all of the answers to those questions. So the digital world does for intrusive employers exactly what it does for everyone else (in particular, divorce lawyers)–for better or for worse, it makes finding information very quick and easy.

I am fairly optimistic that there will be appropriate legislation on a federal level to curtail this practice, but having observed Congress for several decades, I’m just not convinced that it will occur in my lifetime.

It may not be as simple as banning the asking of those kinds of questions, probably by creating a new protected category relating to the “expectation of privacy” based on the Fourth Amendment to the Constitution. Furthermore, as is the case with legislation dealing with employers checking the credit reports of job seekers, there may be some exceptions to a general rule. Most folks would agree that an employer hiring someone to handle money probably should be able to find out how he or she has met their obligations in the past, by checking his or her credit report. Similarly, I believe employers should have significant latitude in the case of people looking for jobs in the national security or intelligence area. Because of considerations such as these (as well as legislative gridlock in Washington generally), it may be years before there is a clear federal statute protecting us against employers looking to crawl onto our Facebook pages or into our e-mail accounts.

In the meantime, don’t stand for it. Get angry. It is outrageous. Some commentators compare it to asking you for your house keys or your personal diaries.

You have more leverage than you think. Most employers, especially large companies , do not want employment hassles. Mostare really very careful to avoid asking you about those protected categories and asking you for your e-mail or social networking passwords could well violate the existing laws protecting those categories. And no company wants to be on the ACLU or EEOC’s Most Wanted list.

A quick and unscientific look at the Facebook pages and other social networking site posts of my friends (my real friends) tells me that most people reveal many things about their age and religion in their daily posts. My advice to you is that if yours doesn’t now — make sure it does after you read this. In my opinion, if you refuse to provide password information because it would in fact allow an employer to trod upon protected turf, not only are you within your existing rights, but if you were denied the job without any other legitimate and convincing explanation, you would have redress immediately available in terms of a nasty EEOC complaint.

Better yet, in the case of a large employer where the offending question is part of a written application, one good class-action suit might easily solve the problem forever. And that type of litigation could probably be filed tomorrow against a number of large companies.When you think about it, you may well reach the same conclusion –that in all likelihood the intentions of many who ask for your passwords aren’t evil. Rather, the easy availability of the information has led them to thoughtlessly insult everyone who applies for a job. That is yet another thing facilitated by the new digital world in which we live–behavior that a decade or two ago would have been completely outrageous becomes commonplace because it can be accomplished so easily and so thoughtlessly.

The leadership in Bozeman didn’t need a new law to realize that they have become victims of the new propensity for digital outrage. They were responsive to the reaction of the community, because they are part and parcel of that community.

One way to restore a sense of community is to think about what’s happening and act on it. Don’t allow yourself to be pushed around. The laws protect you right now. Make good use of them.

Image: _Max_B, via Flickr

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