All Up in Your Facebook: Using Social Media to Screen Job Applicants

KABRINA KREBEL CHANG*

INTRODUCTION
ustin Bassett, a statistician, was interviewing for a new job. He answered some character questions, and then the interviewer turned to her computer and searched Mr. Bassetts public Facebook page. She then asked Mr. Bassett for his Facebook password. Mr. Bassett refused. He withdrew his application because he did not want to work for a company that would seek such personal information.1 Robert Collins did not have that luxury. Mr. Collins reapplied to the Maryland Department of Corrections after taking a bereavement leave. During the interview, Mr. Collins was asked for his Facebook login and password. Mr. Collins sat with the interviewer as they logged onto his account, and not only read his posts, but also those of his family and friends.2 Shocked, he nevertheless turned over his password: I needed my job to feed my family. I had to.3 The North Carolina Department of Public Safety goes so far as to ask for an applicants Facebook and MySpace password on his or her application.4 And with unemployment close to 13 million people,5 many who obtain an interview may not be in a position to say no and walk away. When it comes to a job search, everything counts: your posts, your

* Professor, Markets, Policy and Law, Boston University; B.A., Political Science, Boston University 1992; J.D., New England Law | Boston 1996. 1 Manuel Valdes & Shannon McFarland, Employers Asking Job Seekers for Facebook Passwords, BOSTON.COM (Mar. 21, 2012), http://articles.boston.com/2012-03-21/business/31215585_1_social-networking-passwordfacebook. Id.; American Civil Liberties Union, Want a Job? Password, Please!, ACLU.ORG (Feb. 18, 2011), http://www.aclu.org/blog/technology-and-liberty/want-job-password-please. 3 Valdes & McFarland, supra note 1. 4 Mike Wehner, Could Employers Begin Asking for Facebook Passwords on Applications?, TECCA.COM (Nov. 29, 2011), http://www.tecca.com/news/2011/11/30/facebook-password-jobs.
5 Bureau of Labor Statistics, News Release, BLS.GOV (Sept. 7, 2012), http://www.bls.gov/news.release/pdf/empsit.pdf. 2

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tweets, your online transactions and interactions. With over 900 million users on Facebook6 (90% of all U.S. college students),7 150 million LinkedIn members,8 and 500 million Twitter users,9 your online footprint is the second page to a twenty-first century resumeand employers are looking. According to a 2009 study by CareerBuilder.com, 45% of companies surveyed use social media to screen potential hires, reporting the use of: Facebook (29%), LinkedIn (26%), Twitter (7%), and blogs (11%).10 In a Microsoft study, 79% of human resource professionals responded that they looked at online information as part of their formal hiring process.11 And yet, according to the study, only 9% of people surveyed believed that their online personal information would have any impact an employers hiring decisions.12 But how much information should employers see? Is it legal to ask applicants for their social networking password to screen their activity before making a hiring decision? This Article will explore the duty of employers to search an applicants online activity, as well as the legal dangers associated with gaining access to and using this information. This analysis will use current case law and traditional legal theories to examine the potential legal risk to managers. Further, this Article suggests a potential resolution to the legal conflicts that can arise. I. The Evolving Duty to Search an Employment Applicants Online Activity

Social media has expanded beyond its original purpose. This expansion, according to a recent study, has turned social networking sites into reliable predictive tools for many employers.13 In an effort to avoid hires that employers will later regret, many employers now use social

Key Facts, FACEBOOK, http://newsroom.fb.com/content/default.asp?NewsAreaId=22 (last visited Sept. 25, 2012). 7 Donald H. Kluemper et al., Social Networking Websites, Personality Ratings, and the Organizational Context: More Than Meets the Eye?, 42 J. APPL. SOC. PSYCHOL. 1143, 1145 (2012).
8 Todd Wasserman, LinkedIn Hits 150 Million Members, MASHABLE.COM (Feb. 9, 2012), http://mashable.com/2012/02/09/linkedin-150-million-members/. 9 See Joann Pan, Will You Be Twitters 500 Millionth User?, MASHABLE.COM (Feb. 22, 2012), http://mashable.com/2012/02/22/twitters-500-million-user/. 10 James Sunshine, How Companies Use Facebook to Hire and Fire Employees, HUFFINGTON POST (Aug. 4, 2011), http://www.huffingtonpost.com/2011/08/04/new-infographic-shows-howcompanies-target-unemployed_n_918816.html. 11 Data Privacy Day: Perceptions Study, SLIDESHARE.NET 6 (Jan. 2010), www.slideshare.net/PingElizabeth/data-privacy-day-online-reputation-research. 12 Id. 13 B. Cervantes, Study: Facebook Score Determines Job Performance, Academic Success, KTSM NEWS CHANNEL 9 (Feb. 23, 2012, 6:39 PM) http://www.ktsm.com/print/node/50034.

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media like a standard background check.14 According to one study, 35% of employers reported that online content such as provocative photos, references to drinking alcohol or using drugs, poor communication, and discriminatory comments influenced the employer not to hire a specific candidate.15 More troubling, according to a 2011 Society for Human Resource Management survey, 73% of these employers do not offer a chance for the applicant to explain questionable material.16 Of course, your online presence doesnt always work against you18% of employers have found information on an applicants social network that has helped a candidate get the job: getting a good feel for the candidates personality, confirming qualifications, creativity, solid communication skills, or good references from others.17 In many ways, searching social media is merely an expansion of the existing duty to prevent negligent hiringa tort recognized in every state.18 Employee conduct can lead to a negligent-hiring claim against the employer if the employer knew, or should have known, about an applicants propensity to engage in such conduct and the conduct causes injury to a third person.19 Employers continuously face liability for the failings and illegalities of their employees.20 The growth of online searches of prospective employees is simply another method for employers to arm themselves against possible future liability. But at the same time, employers must be cognizant of the risks of online screeninga method that has become its own minefield of legal consequences. II. The Legal Dangers of Using Social Media to Screen Applicants A quick and reliable method for culling through a stack of applications

Steve Johnson, Those Party Photos Could Cost You a Job, CHI. TRIB. (Jan. 17, 2012), http://www.chicagotribune.com/features/tribu/ct-tribu-facebook-job-dangers20120117,0,1257938.column. See Sunshine, supra note 10. Johnson, supra note 14. 17 John A. McCreary, Jr., Social Media Symposium: Social Networking and Employment Law, 81 PA. B. ASSN 69, 70 (2010); Johnson, supra note 14. 18 Katherine A. Peebles, Negligent Hiring and the Information Age: How State Legislatures Can Save Employers from Inevitable Liability, 53 WM. & MARY L. REV. 1397, 1404 n.35 (2012). 19 See, e.g., White v. Consol. Planning, 603 S.E.2d 147 (N.C. Ct. App. 2004) (holding the employer, Consolidated Planning, liable for negligent hiring when it failed to conduct a reasonable search of Rob White, a compulsive gambler who ultimately misappropriated $300,000 of company funds); Ponticas v. K.M.S. Invs., 331 N.W.2d 907 (Minn. 1983) (holding the defendant employer, Skyline, liable for negligent hiring for not following its standard procedure of checking references for Dennis Graffine, a Skyline employee who went on to rape the plaintiff in the building where Graffine was hired to work). 20 See Robert Sprague, Googling Job Applicants: Incorporating Personal Information into Hiring Decisions, 23 LAB. LAW. 19, 23 (2007).
16 15

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may be tempting to a human resource manager; yet using social media to screen applicants carries considerable legal risks. For example, an employer couldeven unknowinglymake a hiring decision based on an applicants Title VII or ADA protected status. If a hiring manager searches an applicants Facebook photos and sees her wedding pictures, the applicants religion may be revealed. His alumni affiliation may reveal his age. A Google search can reveal a present cancer survivor, Tea Party Republican, or a friend of the NRA. Our social networking activity holds a library of information, and some employers believe they are entitled to access this information. But are employers allowed to ask applicants for access when this information is password protected? A. Pietrylo v. Hillstone Restaurant Group In Pietrylo v. Hillstone, the court addressed this issue.21 Brian Pietrylo worked at Houstons, a Hillstone Restaurant Group restaurant, and he created a group on the social media site, MySpace, called the Spec-Tator. According to Pietrylo, the purpose of the group was to vent about any BS we deal with [at] work without any outside eyes spying in on us. This group [was] entirely private and [could] only be joined by invitation.22 Pietrylo invited past and present Houstons employees to join the group. If they accepted, they could access the Spec-Tator site whenever they wanted to read or add new postings.23 Pietrylo invited Karen St. Jean, a greeter at Houstons, to join the group. While dining at the home of TiJean Rodriguez, a Houstons manager, St. Jean accessed the group using her MySpace account on Rodriguezs computer and showed Rodriguez the Spec-Tator site.24 Later, Robert Anton, another Houstons manager, asked St. Jean for her password to access the Spec-Tator site. St. Jean stated that she was never overtly threatened with any adverse employment action. However, she felt compelled to provide her password to members of management because they were her superiors.25 Anton used St. Jeans password to gain access to the Spec-Tator site, and printed copies of its contents to discuss with other managers.26 Posts on the Spec-Tator site included sexual remarks about management and customers, jokes about Houstons policies, references to violence and illegal drug use, and a copy of the new wine test that was to

21

Pietrylo v. Hillstone Rest. Grp., No. 06-5754, 2008 WL 6085437, at *2 (D.N.J. July 25, Id. at *1. Id. Id. Id. Id.

2008).
22 23 24 25 26

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be given to the employees. Pietrylo claimed the remarks were just jokes; but management did not find them funny. Management was concerned that the content of the site contradicted Houstons four core values: professionalism, a positive mental attitude, an aim-to-please approach, and teamwork. Pietrylo was promptly terminated.27 Pietrylo sued Hillstone claiming a violation of the Stored Communications Act (SCA), wrongful termination in violation of public policy, and invasion of privacy.28 The jury found that Hillstone had not invaded Pietrylos privacy; however, there was a violation of the SCA because Hillstones access to the Spec-Tater site was not authorized. Hillstone claimed that its access was authorized because St. Jean, an authorized user of the group, showed Rodriguez the site on her own, and voluntarily gave her password to Anton. Thus, Hillstone claimed that St. Jean authorized Anton and other management to access the Spec-Tator site.29 The court, however, thought differently. Anton, who accessed the site several times through a MySpace page that was not his own, knew that he was not authorized to access the Spec-Tator site. Managers continued to gain access to the site through St. Jeans account even after realizing that St. Jean had reservations. The court pointed out that Houstons had a right to protect the core values of its company; however, its methods in this case were not legal.30 The same analysis of authorization applies to an employment interview. As with Mr. Collins interview with the Maryland Department of Corrections,31 many unemployed do not feel free to leave an interview. Their ability to say no to a request for their Facebook password is limited. Ms. St. Jean in Pietrylo believed something bad would happen to her if she refused to reveal her password,32 and an interviewee could also reasonably expect that not revealing his or her password would prevent him or her from getting the job. B. Traditional Theories of Coercion Courts have examined the uneven authority between an applicant and a potential employer in traditional legal theory, and this material is applicable to a request for an applicants Facebook password. The indirect coercion created by the employment relationship has been well developed in sexual harassment jurisprudence and most resembles the indirect coercion present in this interview process.
27 28 29 30 31 32

Pietrylo, 2008 WL 6085437 at *2. Id. Id. at *3. Id. at *17. See supra note 2 and accompanying text. Pietrylo, 2008 WL 6085437, at *18.

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For example, in Meritor Savings Bank v. Vinson, Michelle Vinson brought a claim for sexual harassment when her boss invited her to dinner and then suggested they go to a motel to have sexual relations.33 At first, Ms. Vinson refused, but out of what she described as fear of losing her job, she eventually agreed.34 The District Court stated that this voluntary relationship had nothing to do with her continued employment at [the bank] and thus denied her sexual harassment claim.35 In its reversal, the D.C. Circuit Court of Appeals stated, and the U.S. Supreme Court later affirmed, if the evidence otherwise showed that Taylor made Vinsons toleration of sexual harassment a condition of her employment, her voluntariness had no materiality whatsoever.36 The same could be said of the voluntariness of revealing ones Facebook password at the request of a potential employer. If an applicant reasonably believes his or her employment depends on revealing a Facebook password, the fact that he or she tolerates providing that information renders the voluntary nature of that revelation immaterial. Thus, the nature of the employer-applicant relationship makes it reasonable to conclude that an applicant would believe that getting hired is conditional on revealing his or her Facebook password. Similarly, in Entrot v. BASF Corp., Ms. Entrot claimed that a co-worker, who served as her supervisor on a temporary project, sexually harassed her.37 In exploring the parameters of supervisor, the court looked at whether the co-workers employment relationship with Ms. Entrot constituted a continuing threat to her employment conditions that made her vulnerable to and defenseless against the particular conduct when comparable conduct by a co-worker would not.38 This vulnerability derives from the agency relationship and lies in the supervisors authority, though not exercised in the particular situation, to take tangible employment actions against [Ms. Entrot], such as hiring [or] firing.39 If the level of authority over a victim is ambiguous, the court found the tipoff may well be in her response to it. Does she feel free to walk away and tell the offender where to go, or does she suffer the insufferable longer

Meritor Savings Bank v. Vinson, 477 U.S. 57, 60 (1986). Id. 35 Id. at 61 (quoting Vinson v. Taylor, No. 78-1793, 1980 WL 100, at *1, n.1 (D.D.C. 1980), revd 753 F.2d 141 (D.C. Cir. 1985), affd and remanded sub nom. Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986)). 36 See id. at 62-63 (quoting Vinson v. Taylor, 753 F.2d 141, 146 (D.C. Cir. 1985), affd and remanded sub nom. Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986)).
34 37 38 39

33

Entrot v. BASF Corp., 819 A.2d 447, 449 (N.J. Super. Ct. App. Div. 2003). Id. at 457-58. Id. at 458 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)).

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than she otherwise might?40 As with sexual harassment, a persons vulnerability to a request for his or her Facebook password is tied to the interviewers potential to hire that person. The applicant, like Mr. Collins,41 simply does not feel free to get up and walk away. An applicant is in the same position as Houstons greeter Ms. St. Jean, who complied only because it was her boss asking her for the information.42 An applicants compliance to an interviewers request does not authorize access pursuant to the SCA. C. Other Theories on Authorization EF Cultural Travel v. Zefer Corp. is another important decision about authorization.43 In this case, two employees left EF Cultural Travel (EF) to start Explorica, Inc., a competing company. Explorica hired Zefer to build a scraper tool that would scrape pricing information from EFs website.44 While much of the pricing information was publicly viewable on the EF website, the scraper accessed the HTML source code that generates the interface that viewers see.45 After receiving the pricing information from the scraper, Explorica set their prices below EFs. EF discovered Exploricas use of the scraper and sued both Explorica and Zefer, asserting among other claims, a violation of the Computer Fraud and Abuse Act (CFAA). The court granted EFs request for a preliminary injunction and agreed that use of the scraper went beyond the reasonable expectations of ordinary users.46 The appeals court saw the reasonable expectations test as too broad and too imprecise. The CFAA defines exceeds authorized access as use without authorization and use . . . to obtain . . . information in the computer that the accesser is not entitled . . . to obtain.47 Authorization limits are set in a sites terms and conditions, and EFa public website could easily have made clear what conduct was prohibited including the use of a scraper. Because EFs terms and conditions did not explicitly prohibit scrapers, the company did not make its reasonable expectations clear.48 The Facebook Statement of Rights and Responsibilities expressly prohibits solicit[ing] login information or access[ing] an account belonging to
40 41
42

43 44 45 46 47 48

Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 803 (1998)). See supra note 2 and accompanying text. See supra note 25 and accompanying text. EF Cultural Travel v. Zefer Corp., 318 F.3d 58, 58 (1st Cir. 2003). Id. at 60. Id. Id. Id. at 62. Id. at 62-63.

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someone else.49 An employer that requests an applicants Facebook password thus appears to violate this specific term, and under EF Cultural Travels reasoning, such a demand falls short of an authorized use.50 Moreover, complying with the demand would also appear to be a violation of the applicants agreement with Facebook as a user. Section 4(8) states: [y]ou will not share your password . . . [or] let anyone else access your account.51 However, in EF Cultural Travel, the aggrieved party was EF, the site owner, and by analogy the aggrieved party in the interviewer scenario would be Facebooknot a likely plaintiff for this claim. This apparently unauthorized access may raise more traditional tort theories such as tortious interference with a contract:
One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.52

Thus, an employer who demands an applicants Facebook password is causing the applicant to breach his or her agreement with Facebook to not share his or her password. The remaining issue is whether such interference causes any pecuniary loss to the applicant. Clearly, while researchers are finding value in accessing a potential employees Facebook page, several legal theories indicate there are inherent dangers, although financial damages may be hard to prove. III. Online Activity May Predict Successful Employees Despite the potential legal risks with online searches, employers can find clues in online activity that may predict job success. For example, in a study of 100 college students, login frequency, duration, status updates, and photo sharing predicted the users narcissistic tendencies off-line.53 Using the Narcissism Personality Inventory and Rosenberg Self-Esteem Scale, the study identified narcissists as those most likely to log-in to Facebook for more than an hour a day and those most likely to use status updates and photos as tools for self-promotion.54

Statement of Rights and Responsibilities, FACEBOOK, http://www.facebook.com/legal/terms (last updated June 8, 2012). 50 See EF Cultural Travel, 318 F.3d at 62-63. 51 See FACEBOOK, supra note 49. 52 RESTATEMENT (SECOND) OF TORTS 766 (1979). 53 John H. Tucker, Study of Facebook Users Connects Narcissism and Low Self-Esteem, SCI. AM. (Nov. 2, 2010), http://www.scientificamerican.com/article.cfm?id=status-update-im-soglamorous.
54

49

Id.

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In another study published in the Journal of Applied Social Psychology, researchers correlated the Big Five personality traits (conscientiousness, emotional stability, agreeableness, openness to experience, and extroversion) as judged from a subjects Facebook page with hirability and job performance.55 For example, a lack of self-discipline and cautiousness in online conversations may indicate low conscientiousness. Emotional stability may be gauged by a sequence of posts that show large emotional swings. Agreeableness may be reflected in whether a person is trusting and gets along with others, as well as the amount and extensiveness of posted personal information. Openness to experience was determined by intellectual curiosity as measured by the variety of books, quotations, or other creative posts. Lastly, extroverts were identified by the number of friends they had on the network.56 What makes this information more valuable to employers is the speed with which a reviewer can identify the personality traits. For the study, the researchers hired three evaluators: a 46 year-old man with eight years of work experience and two 22 year-old college seniors proficient in Facebook.57 After a two-hour training session, the evaluators spent an average of five minutes looking at a profile before assigning a Big Five trait and hirability rating called the Facebook Score.58 But dont most people embellish their Facebook persona? Is Facebook a reliable source of information? According to the researchers, Facebook users are less likely to self-inflate or provide inaccurate but socially desirable responses because the information on a persons Facebook page is accumulated over years and shared with family and friends. Intentionally falsifying information would jeopardize these relationships and run counter to the purpose of social networking. However, the researchers acknowledge that content can be manipulated if users know the content will be evaluatedwhich is known as impression management.59 IV. Private Solution to the Use of Social Media as a Screening Tool: Third Party Outsourcing Human resource managers wantand may even needto see an applicants online activity. Given the ease with which online information is accessed, the prudent human resource manager will engage in at least a superficial search. Equally clear is that such a search is a minefield of legal dangers; but creative entrepreneurs have provided a potential solution.
55 56 57 58 59

See Kluemper et al., supra note 7, at 1143, 1152. Id. at 1148-49. Id. at 1151. Id. Id. at 1148.

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A. Social Media Consumer Reports One possible solution is to have a third party do the searching and scrub information of any facts that could indicate a protected category under the law. Social Intelligence, a firm in Santa Barbara, California, scours social media and the Internet for information on employees and applicants.60 The company mines publicly available data to investigate a persons entire online footprintfrom Facebook and LinkedIn, to blogs, wikis, Flikr, and YouTube.61 A job applicant, however, must consent to this search,62 and according to Social Intelligence, the company uses proprietary technology for linking people with aliases or online names.63 If the software finds an incriminating photo, a human reviewer will look at the photo and decide whether the photo is harmless.64 The report given to an employer is scrubbed of information that the EEOC has determined is illegal for an employer to consider.65 According to Geoffrey Andrews, the COO of Social Intelligence, 20% of applicants do not show up in searches, 60% have a neutral or positive footprint, and 5-20% have negative results.66 The Federal Trade Commission suspended an investigation into the company as it presently complies with the requirements of the Fair Credit Reporting Act (FCRA). Employers that use a Social Media Consumer Report from Social Intelligence notify an applicant of adverse findings and applicants can then challenge the accuracy of the information in the report.67 These applicants can then see how their online footprint appears.68 Social Intelligence stores information for up to seven years, but does not reuse reports. In order to comply with the FCRA, Social Intelligence also runs a new report for each new request; they do not maintain a historical database.69
60 Kashmir Hill, Feds Okay Start-Up That Monitors Employees Internet and Social Media Footprints, FORBES (June 15, 2011, 3:34 PM) [hereinafter Hill, Feds Okay Start-Up], http://www.forbes.com/sites/kashmirhill/2011/06/15/start-up-that-monitors-employeesinternet-and-social-media-footprints-gets-gov-approval/. 61 Kashmir Hill, Social Media Background Check Company Ensures That Job-Threatening Facebook Photos are Part of Your Application, FORBES (June 20, 2011, 12:07 PM) [hereinafter Hill, Social Media Background Check], http://www.forbes.com/sites/kashmirhill/2011/06/20/nowyour-embarrassingjob-threatening-facebook-photos-will-haunt-you-for-seven-years/.

Id. Hill, Feds Okay Start-Up, supra note 60. 64 Alan Farnham, Background Checks Now Include Twitter, Facebook, ABCNEWS.COM (June 24, 2011), http://abcnews.go.com/Business/job-tweets-background-checks-employers-nowinclude-postings/story?id=13908874#.UEArZnJRDKc.
63 65 66 67 68 69

62

Id. Hill, Feds Okay Start-Up, supra note 60. Id. Id. Hill, Social Media Background Check, supra note 61.

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Of course, scrubbing an applicants personal information may not be enough to prevent protected information from leaking out and creating an inaccurate picture of an applicant. You can be deemed a bad apple by association, says Pam Dixon, executive director of the World Privacy Forum.70 Moreover, through a Social Media Consumer Report, a potential employer can learn about your friends: are they prominent, wealthy, gay, international? B. Job Fit Score What if you needed a certain score on the job market equivalent of your SATs to even be considered for a new position?71 A San Francisco company called Reppify provides employers with such a score. Reppify uses data from LinkedIn, Facebook, Twitter, and other sites to determine a job fit score.72 Reppify can look over a candidates resume and connections to build scores for reputation, influence, footprint, and overall candidacy, all based on parameters set by the hiring manager. Reppify will share these scores with clients only if the applicant has consented and not until a client has completed a FCRA certification.73 Reppify collects information on people regardless of whether they have agreed to use the service. The company uses the applicants email address and employment history supplied by a potential employer to scour the Internet for public information and generates a provisional score. If an employer asks Reppify about a particular applicants score, Reppify will notify the applicant and give them the chance to bolster their score by allowing Reppify access to more social network information. In order to opt-out of this feature, applicants must deny public access through their privacy settings on all social networking sites to which they belong.74 Other companies are following suit and compiling our online footprints whether we know it or not. In the fall of 2011, Identified, a company based at Stanford University, launched its ranking system for potential employees.75 Identified assigns a numerical score from 0-100 based on work history, education, and social networks. People score differently in different searches. The purpose is to help companies find the

Farnham, supra note 64. Caleb Garling, Didnt Get That New Job? You Need a Better Facebook Score, WIRED.COM (Nov. 21, 2011), http://www.wired.com/wiredenterprise/2011/11/reppify-identified-facebooklinkedin/.
71

70

Id. Id. 74 Id. 75 Tomio Geron, Identified Launches Its People-Ranking Professional Search Engine, FORBES (Sept. 19, 2011, 10:32 AM), http://www.forbes.com/sites/tomiogeron/2011/09/19/identifiedlaunches-its-people-ranking-professional-search-engine/.
73

72

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most qualified candidate for their opening. Colleges and companies are also ranked on Identified and the company claims to have 40 million people listed, although most are not registered members.76 For those not registered with Identified, the company uses publicly available information from Facebook and makes scores and profiles available for viewing only by registered Identified users.77 V. The Government Response to the Use of Social Media as a Screening Tool The government has also noticed the rise in employers use of social media. Spokeo, a data broker, collects personal information about consumers from both online and offline sources. It then combines this data to create a consumer profile and markets to human resources professionals and recruiters.78 In June 2012, the Federal Trade Commission (FTC) filed a complaint in a California federal court alleging Spokeo engaged in unfair and deceptive practices because it sold its reports without providing the protections required by the FCRA.79 According to the FTCs complaint, Spokeo did not disclose the source of its data, allow individuals a chance to dispute or correct inaccurate information in the Spokeo report, or let individuals know who sought access to their information.80 Spokeo agreed to settle the complaint for $800,000.81 This year, Representative Ed Perlmutter of Colorado introduced a bill as an amendment to FCC legislation that would give the FCC the power to prohibit employers from asking applicants and workers for their social networking passwords. The bill was rejected by the House: 236 to 184.82 U.S. Senators Amy Klobuchar, Chuck Schumer, and Richard Blumenthal introduced a bill in the Senate in May of this year called the Password Protection Act that seeks the same prohibition.83 Meanwhile, Maryland has
Id. Id. 78 Matthew J. Schwartz, FTC Spanks Data Broker Spokeo with $800K Fine, INFORMATIONWEEK (June 14, 2012), http://www.informationweek.com/news/security/management/ 240002048?printer_friendly=this-page. 79 Id. 80 Kim Zetter, FTC Fines Spokeo $800K for Peddling False Employee Background Check Info, WIRED.COM (June 12, 2012), http://www.wired.com/threatlevel/2012/06/spokeo-fined-800k/.
77 76

Id. Sarah Jacobsson Purewal, Facebook Password Amendment Rejected by Congress, PCWORLD.COM (Mar. 29, 2012, 7:13 AM),
82

81

http://www.pcworld.com/article/252837/facebook_password_amendment_rejected_by_congre ss.html. 83 Shelby Capacio, Klobuchar Bill Bans Employers from Accessing Facebook Passwords, MYFOX9.COM (May 3, 2012, 2:43 PM), http://www.myfoxtwincities.com/story/18106313/klobuchar.

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13

passed a bill prohibiting employers from requiring applicants and employees to divulge their social networking passwords as a condition of employment.84 Maryland is not alone in taking an interest in this new trend: similar bills limiting employer reach are pending in California, Illinois, and Michigan.85

CONCLUSION
It is no secret that employers look at an applicants online activity. In fact, because social networking and Internet use is so universal, employers have a duty to look. But does that duty translate into a right to demand an applicants social networking password? Courts have yet to untangle this issue. The Pietrylo case makes it clear that authorization is a key issue. Additionally, the body of sexual harassment law indicates that the element of coercion between a potential employer and an applicant may play a role. Some believe a legislative solution is an appropriate route; yet so far, only Maryland has had success passing a law that prohibits employers from requesting social networking passwords from applicants and employees. Perhaps entrepreneurs have provided another solution with Social Media Consumer Reports and Job Fit Scores. According to Social Intelligence, outsourcing is the answer because companies have an obligation to assess employment risks, and a third party can screen out information that an employer is not legally permitted to consider.86 With more companies entering this new market, social networking reports or scores may become the new credit report: a routine part of a background check governed by the FCRA. Yet until the courts begin making decisions on these issues, managers and employees are left to double-click in the dark.

84 Catherine Ho, Md. Employers Cannot Collect Facebook Passwords, WASH. POST (Apr. 15, 2012), http://www.washingtonpost.com/business/capitalbusiness/md-employers-cannotcollect-facebook-passwords/2012/04/13/gIQAZwQtJT_story.html. 85 Id. 86 Nathan Vardi, Creepy Start-Up or Sign of the Times?, FORBES (Sept. 28, 2010, 8:17 AM), http://www.forbes.com/sites/nathanvardi/2010/09/28/creepy-start-up-or-sign-of-the-times/.