Your Facebook Login Or Your Livelihood?April 2, 2012 4:41 pm ·
Following Congress’s failure to pass an amendment preventing employers from demanding Facebook login information from current and potential employees last week, employers appear to have only become emboldened in their attempts to seize such private information from workers. According to a Monday report, a local teacher’s aide marks in a list of those affected individuals that promises to continue growing as legal checks remain absent.
After refusing to surrender her Facebook login information to the superintendent, Kimberley Hester was placed on paid leave and then ultimately suspended from her position when she posted a picture on Facebook back in April 2011. The picture was of a coworker’s pants around her ankles, which Hester says was done as a joke. Despite being done off the clock and from her own home, a parent complaint about the picture led school district superintendent Robert Colby to demand access to Hester’s account.
“He asked me three times if he could view my Facebook, and I repeatedly said I was not OK with that,” she claims.
When Hester declined, the Lewis Cass Intermediate School District wrote her a letter which said, in part, “[I]n the absence of you voluntarily granting Lewis Cass ISD administration access to you[r] Facebook page, we will assume the worst and act accordingly.”
According to WBST, Hester stands by her decision not to provide the administration with her Facebook login information.
“I stand by it,” she said in a statement. “I did nothing wrong. And I would not, still to this day, let them in my Facebook. And I don’t think it’s OK for an employer to ask you.”
Asserting that she has a right to privacy protecting her from such advances by an employer, Hester has elected to move forward with litigation against the school district. However, despite the broad consensus among Americans that login information for Facebook and other social media accounts should remain private, the lack of legislation explicitly barring employers from demanding such information from employees and applicants leaves Hester and the countless others bound to have stories like hers with very little recourse.
Facebook Login Protection: An Uphill Battle
Although Senators Charles Schumer and Richard Blumenthal believe that the argument could be made under the Stored Communications Act or the Computer Fraud and Abuse Act, a cursory view of both statutes leaves me skeptical as to what someone in Hester’s position can actually do.
Written as a complement to the Electronic Communications Privacy Act, the Stored Communications Act (SCA) effectively applies Fourth Amendment protections—one’s right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”—to our digital lives. The problem I foresee for lawyers representing someone like Hester is connecting the SCA—which primarily targets the way that the government may access this information and the proper protocol that the third parties storing this information must follow before divulging it—to the present practice being used by employers.
In such cases, employers generally do not fall into the category of government. Nor do they fall into the category of the companies that actually store this information.
As for the six criminal offenses defined under the Computer Fraud and Abuse Act, none of them appear even remotely applicable. Most of its provisions have to do with information taken from government computers or the unauthorized use of information after it is taken. That is, because the school district simply relieved Hester of her post when she refused to relinquish her Facebook login information and didn’t try to get it through other means, this statute doesn’t seem to apply either.
To put it simply, neither act forbids asking for that kind of information. Had Hester’s employer taken and used her Facebook login credentials without her permission, it might be a different story.
Perhaps this lack of definitive legal recourse explains the continued effort by these senators and other lawmakers at all governmental levels to draft and (hopefully) pass something more substantive. Until then, those working for invasive employers will likely be faced with the objectionable choice between personal privacy and personal solvency.
- Teacher’s aide files lawsuit against school system that asked for her Facebook login details (venturebeat.com)
- Legislation Protecting Facebook Login Information From Employers Defeated in House (experts-exchange.com)
- Teacher’s aide fired for refusing to hand over Facebook password (bgr.com)
- Demanding Facebook passwords may be illegal, senators warn (technolog.msnbc.msn.com)