Out (10) Asf

EMPLOYER USE OF FACEBOOK
AND ONLINE SOCIAL NETWORKS

TO DISCRIMINATE AGAINST
APPLICANTS FOR EMPLOYMENT
AND EMPLOYEES: AN ANALYSIS
BALANCING THE RISKS OF
HAVING A FACEBOOK
ACCOUNT AND THE NEED FOR
PROTECTIVE LEGISLATION
By James Delaney
Introduction
The author currently works for a civil

litigation firm in San Diego, California.
He recently graduated from the dual
degree JD/MBA program at California
Western School of Law and San Diego
State University and plans to practice
law in California. The author wrote this
article while in law school with the intention of raising attention to just one of
the many issues where social media and
technology are affecting our lives every
day. The views and opinions in this article
are intended to support this message.
86
As technology advances, our use of computers, tablets,

mobile phones, and smart phones continues to grow
at an astounding rate. These advances also helped
Facebook and other online social networks grow at a
tremendous pace over the past decade. The growth of
online social networks such as Facebook has brought
about unforeseen changes in multiple facets of society
affecting the legal rights of its users. Countless plaintiffs
are filing lawsuits where Facebook acted as the medium
in which the disputed problem or event arose. The twist
to these lawsuits is nothing more than the fact the information is posted online. One recurring issue in these
lawsuits is the privacy boundary which third parties,
such as employers, may cross to obtain any personal
information a user chooses to entrust to a social network
like Facebook.
2013 by James Delaney
LABOR LAW JOURNAL
If a user chooses to post the information publicly on Facebook that is his or her choice. Yet,
there have been many situations where employers have requested or even required applicants
for employment or employees to provide their
username and password to the online social networks to which they belonged. Some situations
also involve employers asking an applicant or
employee to log in to their Facebook account
to allow the employer to search through that
account. Even worse, some employers have
refused to hire an applicant or disciplined or
discharged employees, based on a refusal to
supply the information.
First, this paper will focus on Facebooks
creation, growth, and how prevalent it is in
our society today. Then, this paper will discuss
the privacy (or lack of) which Facebook offers
users. Next, the discussion will center on how
employers have used Facebook: (1) to screen
applicants before they are interviewed,1 (2) as
part of the interview process by asking applicants to disclose their personal Facebook login
information,2 and (3) how employers have used
Facebook as grounds to terminate employees
for speech posted on Facebook about their job3
or supervisors.4 Then, this paper will focus on
current and proposed legislation that is intended
to protect the privacy rights of the applicant or
employee by prohibiting employers from asking
for any personal online social network account
information. Finally, it will discuss the extent to
which each user is responsible for preventing
unwanted people, especially employers, from
viewing their private information.
I. Facebooks Prevalence in Our

Society and Understanding Your
Facebook Privacy
Could you imagine having an employer ask to
view your entire Facebook account? All your
personal photo albums, conversations, and interests would be accessible to someone who might
be the last person you would want with that information. For some people, this is equivalent to allowing a stranger to conduct an interview in your
house, while you confide your secrets and show
them your family pictures of the good times, and

the bad. Since Facebook allowed public searches
in 2006, some employers have used Facebook
to screen applicants for jobs. Sometimes this
has even cost the user an interview.5 Employers
not only screen applicants but have also used
Facebook to monitor employees speech and
activities.6 An employees speech on Facebook
has led to termination after the employee spoke
negatively about customers at her job.7 Another
frustrated employee was terminated for communication on Facebook to another employee
speaking harshly about a supervisor.8 Numerous
lawsuits arose where an employee claims they
were wrongfully terminated from an activity arising from an employees Facebook account that
an employer may have disliked.9 Facebook and
its prevalence in our society has created a need
for protective legislation in todays employment
arena to protect online social media10 users in
the future from employers.11
A. Facebook and Online Social Networks

Facebook and online social networks have experienced exponential growth this past decade.
From 2005 to 2009, traffic to Facebooks website
doubled each year.12 Facebook has become so
popular that it is the second most visited website
on the Internet each month.13 Facebooks presence is so pervasive in our society today that of
the estimated Americans who went online in
May 2012, roughly 152 million or 72% visited
the website.14 Even more telling is that each person spent an average of just under seven hours
per month on Facebook.15 As of October 2012,
70.15 percent of Internet users in the United
States had a Facebook account.16 In July 2012,
a study showed that 22 percent of the websites
in the world reference Facebook.17 These growing percentages are despite the fact Facebook
prohibits anyone below the age of 13 to have an
account.18 Therefore, if you are reading this and
have not heard of Facebook, it can be argued
you are in a tiny minority.
Due to its pervasiveness, Facebook has infiltrated many areas of our lives that were not
anticipated.19 On the one hand, Facebook has
helped save lives,20 and on the other, has also
87
EMPLOYER USE OF FACEBOOK AND ONLINE SOCIAL NETWORKS TO DISCRIMINATE
been used as a medium for online bullying

that has driven some users to suicide.21 Facebook has become a place where users read
news articles,22 go to find advice for purchases,23
and even research medical symptoms they are
experiencing.24 Facebook use has cost some
people their jobs25 and prevented others from
gaining employment.26 Did Mark Zuckerberg
envision this when he created Facebook as a
student at Harvard? There has been a surge of
unforeseen and unexplored issues surrounding
the growth of this rapidly expanding technology
and the privacy protection afforded to its users.
As Facebook continues to permeate our society,
it has become obvious that existing legislation
is not equipped to handle the legal issues that
have arisen.27
B. Facebooks Inception, Basic Uses,

and Continued Growth
Mark Zuckerberg created Facebook in February
of 2004 while he was a student at Harvard University.28 Originally named Thefacebook.com,
The was dropped once Facebook gained popularity. The word Facebook has become a verb
in some conversations today.29 Even a movie was
created surrounding the creation of Facebook
and Zuckerbergs role as a founder.30 When
Facebook was first created, it was only open to
students at Harvard.31 Within the first month,
more than half the student body had joined the
website.32 Facebook soon after opened up user
eligibility to college students, and in 2005, to
high school students.33 On September 26, 2006,
Facebook opened access to anyone with an email
address who was over the age of 13.34 Opening
the website to more people allowed Facebook
to maintain an exponential growth rate, growing
from Harvards campus in 200435 to one billion
monthly active users (MAUs) as of October
2012.36 This is not enough for Zuckerberg, who
wants to connect the entire world to Facebook.37
Facebook is the second most visited website on
the Internet in the United States, second only
to the search engine Google.38 By September of
2012, there were 600 million MAUs who used
Facebook mobile products.39 It is estimated as
of January 2012, Facebooks mobile application
88
on the iPhone accounted for 10 percent of all

data used by iPhones.40 When reading these
numbers, keep in mind that Facebook is blocked
in China.41
The actual Facebook website design has
evolved since its original creation.42 However,
the main feature which has not changed is that
each user gets a unique identifying webpage, or a
profile.43 This profile allows the user to choose
various pieces of personal information which they
want to include on their Facebook profile webpage.44 Some basic information usually includes
a users sex, name, email address, and personal
photograph.45 It can also include information such
as the users age, sexual orientation, religious or
political views, or the users favorite type of music,
books, sports, and activities that particular user
likes.46 Each user may choose if this information
is shared with the public, a group of friends, or
no one at all.47 However, as will be described
later, Facebook has been an evolving landscape
and has caused many privacy issues to arise.48
Once a person is a registered user on Facebook,
he or she can request, and receive requests from
other Facebook users to be friends.49 Additionally, a Facebook user can post information to
their profile by entering text, a link to a website,
a picture, and other announcements from their
Facebook activity whenever they choose.50
Facebook is virtually limitless as to the amount
of data it allows its users to upload, such as pictures
and videos.51 A user can organize all their pictures
and share them with the public or their friends
if they choose.52 As of March 31, 2012, over 300
million pictures are uploaded to Facebook on
average every day.53 In April 2012, Facebook
bought the software company Instagram whose
software application allows its users to upload
pictures to the Internet.54 On average a new user
joins Instagram every second, where users post
an average of 5 million photographs a day.55 This
truly demonstrates how Facebook users enjoy
sharing their personal memories and storing their
digital media on their Facebook profiles.
As more people have begun to use Facebook,
many issues have arisen from this new type of
social interaction. Online bullying has become
more prevalent as mediums such as Facebook
LABOR LAW JOURNAL
provide a faster way to communicate with your

peers and acquaintances.56 People have even had
their lives saved by posting an emergency Status
Update on their Facebook profile.57 Almost 75
percent of users now consult Facebook to gain
opinions on products they are interested in purchasing and almost half have tried a new brand
based on these recommendations.58 Facebook users can post links, photos, and videos which they
find interesting, thus spurning their friends on
Facebook to gain interest by clicking the articles
which have been posted.59 There are over one
billion comments made on Facebook per day.60
More people are starting to access news through
Facebook.61 Additionally, people who have a
troubling symptom or illness have been using
Facebook more often to seek medical advice and
gain medical knowledge.62 As Facebook grows,
an outside observer begins to see that Facebook
users trust or rely on their Facebook friends
for advice, information, and general knowledge.
Facebooks future is interesting because it is
becoming more and more engrained in our society. There has been speculation that Facebook
may be used next as a banking platform.63 Further, shortly after Facebook had its initial public
offering on the NASDAQ, it was rumored it may
create a mobile smart phone.64 Even more telling, for the 2012 presidential elections, the state
of Washington allowed its citizens to register to
vote through Facebook.65 CNN also said they
will incorporate Facebook into the election so
users may post their political views through an
application called Im Voting.66 It may even
be possible to serve a lawsuit over Facebook in
the future.67 Some countries in the world have
already accepted it as a viable means to serve
a lawsuit for those who are only online.68 One
thing can be said for certain: Facebook has
altered the landscape of social behavior and
continues to do so at astounding rates.
C. Facebooks Privacy Issues:

Past, Present, and Future
Facebook has over one billion MAUs.69 This
is despite the fact Facebook is blocked in
China.70 Simply put, Facebook controls and
stores a lot of peoples personal demographic
information. This massive population of users

attracts advertisers,71 Facebooks main revenue
stream.72 Facebook had several different issues
in the past with protecting the privacy rights
of their users.73 It can be speculated, and will
later be discussed, that a conflict of interest
exists between Facebooks desires to generate
substantially all revenue through advertising
and to protect their users privacy. In the past,
when Facebook introduced new features like
the Newsfeed, Facebook altered users privacy
settings without warning,74 causing Zuckerberg
to publicly apologize to users.75 Some of these
changes were undertaken prematurely and
without adequate consideration of their users
privacy.76 Then, Facebook only changed the
settings back after user reaction.77 In November
2011, Facebook settled with the FTC because
it deceived users of their actual privacy by
changing its website so certain information users
designated as private was made public, stating
certain applications were secure when they were
not, and by offering advertisers more information than necessary.78 Even after this settlement,
Facebook had to settle again after it was alleged
the sites Sponsored Stories feature publicized
users likes without compensation or the ability to opt out.79
One of these changes to Facebook was the
introduction of the Newsfeed which created
controversial user privacy violations,80 and arguably still does.81 The Newsfeed displays any
information you or your friends choose to share
based on your personal privacy settings (Facebook has many privacy settings which control
what personal information, posts, photographs,
tags or how you interact with other Facebook
applications are displayed to others).82 The
Newsfeed is basically a live stream of information displayed when you first log into Facebook
containing all your friends recent activity. Additionally if a user tags another user in a photograph or other post, this would be displayed on
the Newsfeed. Tagging is an action on Facebook
where a user may include or link a friend to a
specific photograph or post. When it was first implemented, users were uneasy with the amount
of information that was publicly displayed on
89
their Newsfeeds about each of their friends.83 In

January 2012, when Facebook introduced the
new Timeline84 as the personal profile page of
each user, more privacy issues arose,85 some of
which were said to violate the FTC settlement in
2011.86 However, altering your privacy settings
may still not guarantee that your privacy would
be ensured. Before continuing, please consider
the following hypothetical situation.
The Haunting Photograph: You are out for the
night with your friend having a great time and
want to remember it with a photograph. Your
friend has a stranger take a picture of both of
you. Over the next few days, like a lot of people
you know, your friend uploads pictures from that
night onto Facebook and tags you in several
pictures. After seeing a particular picture on
Facebook you realize embarrassingly that you
forgot to zip your pants (or it wasnt your best
looking picture, or had too much to drink, or
any moment which you would not want to share
openly with others besides those present when
the picture was taken). You take the appropriate
steps to untag yourself from the picture and
check your privacy settings. You wonder who
saw that picture before you were able to untag
yourself. At least you have performed some
damage control quickly, limited who could have
seen it, and no one else will be able to see that
picture in your Facebook photographs.
No, that is not necessarily true. The nature
of how social networks connect people has
presented interesting social situations humans
have not seen before. Remember, 70 percent of
American Internet users access Facebook. The
realization has grown that, as people friend
each other and like different things on these
social networks they gain mutual friends and
exposure to other users. As more people become
connected and have more mutual friends and
share common interests, the likelihood of you
being connected to a friend of a friend increases.
Yes, you can prevent your friends from viewing your photographs or others photographs
in which you are tagged in via your profile.
However if your friend does not change his or
her privacy settings, any friend of theirs may
access the picture via your friends profile. If
90
your friends privacy settings allowed for their

posted photographs to publish on the Newsfeed,
your picture would still appear even if you were
untagged, and any mutual friends or friends of
your friend would see this picture.
Zuckerberg openly admitted that Facebook
has been clumsy about how they have brought
changes to the platform.87 Is it fair for a company
like Facebook with one billion MAUs, to be
clumsy when it comes to their users privacy?
Facebook has not explored all the legal repercussions to their business decisions regarding users
privacy.88 In May 2012, Facebook settled another
class action lawsuit (after being sued for $15 billion in a class action the week before89) because
it allowed third parties to use a Facebook users
name and image to generate advertisements,
which violated the users rights.90 This is only
the tip of the iceberg when it comes to litigation,
and the concerns their users have for violation
of their privacy rights.91 What if you were terminated from your job because of something you
posted on Facebook that you thought would be
private but was not?92
The uncertainty surrounding Facebooks
guarding of users privacy settings should be
apparent now.93 By May 2010, the Facebook
Privacy Policy was longer than the United States
Constitution.94 The constant changes Facebook
implements make it hard for users to monitor
and track the new privacy risks.95 As part of its
settlement agreement with the FTC, Facebook
must have privacy audits performed by a third
party every two years for the next 20 years.96
Despite all these privacy issues, Facebook continues to grow and in June 2012 had an average
of 552 million daily active users.97 These users
produce over 3.2 billion Likes and Comments per day.98 A staggering number for Zuckerbergs lofty goal of having Facebook become
an indispensable medium of global communication.99 However, this goal may be too lofty
for it to face alone without legislation to protect
its users in the many areas of society Facebook
has affected. Imagine if you were refused a job
or lost your job because of a photograph or for
making one of the 1 billion comments made on
Facebook per day.
LABOR LAW JOURNAL
II. Occupational Hazard: Employers

Monitor Social Networks to Screen
Applicants for Employment and
Punish or Terminate Employees
Your activity on Facebook could cost you a job
before you are even interviewed.100 One person
whose Facebook persona included interests of
smokin blunts, sexual, and other illicit activities had their Facebook profile viewed by their
potential employer.101 Although this may have
been the college students idea of a joke at the
time, he was never interviewed for the job.102
The pictures of that fun night out with your
friends might also cost you an interview.103 A
CareerBuilder survey concluded in March 2012,
showed 37 percent of employers use social media to research potential job candidates and 11
percent plan to start.104 Another survey showed
91 percent of employers used social media to
screen applicants.105 Even more startling, the
same survey showed 69 percent have rejected
the applicant because of what they saw on the
persons social media account.106 Although the
numbers presented vary, the fact is clear: employers are looking for you on Facebook.
Judges have used Facebook to monitor lawyers who have lied and who may be breaking
ethical standards by complaining about their
clients on Facebook.107 One judge caught a
lawyer lying about a death in the family to have
a hearing continued by going on Facebook to
find the lawyer went drinking and partying that
weekend.108 The Florida Bar has considered and
come close to requiring applicants to submit
their Facebook username and information as
part of its moral character application.109 Has a
moment of panic swept over the Facebook user
who realizes an embarrassing personal photograph might be sought by a future employer?
Hopefully Facebook will not bring out a new
update that alters the privacy settings of your
photo albums during your next job search!
A. Is Facebook Turning Job Hunting

Into a Job Haunting?
Imagine that you arrived safely to a job interview. At least you got the call for an interview,
right? It must have helped that you were extra

careful and set your Facebook privacy settings as
high as possible. Three company representatives
are conducting the employers interview. The
interview is going fantastic. You answer every
question well. You even crack a couple jokes and
most importantly, everyone laughs! You seem to
have made a fantastic impression. Suddenly, you
are asked the one unexpected question that you
didnt prepare to answer. Can you provide me
with your Facebook user name and password?
You get the impression that you will get the
job, only if you give the employer your information. Then you realize that if you give the
employer your Facebook information, you may
not get the job if he sees what you have said
to some of your friends on Facebook about a
recent political issue or current event. Or even
worse, the employer might see an embarrassing
college photo from seven years ago that your
friend tagged you in and your friend forgot to
remove from his photo albums. That dreaded
picture. The picture of you at your friends frat
party. Remember? The one where you passed
out on the couch because you had one too many
drinks, with obscene writing and drawings all
over your face and arms. Or maybe that was
you in the picture, the senior in the frat who was
hosting the party, drawing on the drunk passed
out freshman with the permanent marker. What
kind of a first impression would an employer
get snooping through your Facebook persona?
1. Your Facebook Activity Could Cost You
Thousands of Dollars, Your Career, and
Your [Online] Reputation
Employers have asked for applicants to provide their Facebook login information as part
of the interview process.110 Other employers
have asked applicants to login and allow the
employer to search through their Facebook
account.111 Some employers have even gone as
far as reading through personal messages and
looking at personal photographs.112 For many
users, this would be the equivalent of allowing
the employer to know what they like, their political views and religion, who their friends are,
what their friends are like, then handing over a
91
transcript of their personal conversations and

sharing all their personal photographs. When
did this become an acceptable part of a job
interview? Employers could argue that it will
help a company weed out the bad apples and
hire better employees.113 However, an employer
learning an applicants religion, sexual orientation, or political affiliation without the applicant
openly disclosing this information could open
the employer to liability.114
Maryland is one state that has enacted legislation to protect applicants (and employees) from
employers asking this question.115 Facebooks
Statement of Rights and Responsibilities has one
clause to address this issue stating, you will not
share your password, let anyone else access your
account, or do anything else that might jeopardize the security of your account.116 However,
the damage may have already been done if an
applicant is forced to friend a human resource
or other representative of the employers company, thus opening up their privacy settings.117
Confiding in a third person or a friend on
Facebook could open a user up to a variety
of privacy issues, and an employer obtaining
knowledge of a users Facebook activity is just
one of these issues.118
Current employees are not necessarily safe from
this growing problem either.119 There has been a
distressing increase in the number of employers asking for social media login information.120
In Maryland, an officer for the Department of
Public Safety and Correctional Services returned
from medical leave only to have his employer
demand his Facebook login information during
a reinstatement interview.121 The Department had
performed this procedure on over two thousand
applicants and insisted this was to ensure the
employee was not affiliated with any gangs.122
Since this occurrence, Maryland became the first
state to pass legislation to protect applicants for
employment or employees from an employer
demanding online social network username and
password information.123 However, some believe
there should be an exception for law enforcement
agencies124 and financial institutions.125
Employees have also lost jobs for personal
activity on Facebook.126 Numerous lawsuits have
92
entered the judicial system with unanswered

questions concerning the proper grounds an
employer has for punishing or terminating
an employee for their action on Facebook.127
These lawsuits vary on the basis of their wrongful termination claims.128 One case involves an
employee who was terminated or punished after
using Facebook to voice and discuss various
frustrations about their supervisor with other
co-workers.129 Another case involves an employee who was terminated after voicing his
frustration about a customer.130 Here is a scary
concept. Being friends with a co-worker on
Facebook could cost you your job for posting
your frustrated comments related to work.131
Facebooks Privacy page even states, we receive
information about you from your friends and
others, such as when they upload your contact
information, post a photo of you, tag you in a
photo or status update, or at a location, or add
you to a group.132 What if you lost your job
because of some photograph or comment a coworker posted on Facebook that implicates you?
B. Multiple Third Parties With Conflicting

Interests Surrounding Your [Online]
Reputation, Your Ignorance May
Bring Misfortune
There are several groups that have an interest
in this employment issue created by Facebook.
First and foremost the Facebook user, who must
have his or her privacy expectations protected
so that ones online reputation does not cripple
his or her ability to generate income. This group
accounts for 70 percent of American Internet
users and almost one out of every seven people
on the planet.133 This demonstrates that many
people trust Facebook to honor their expectation of privacy by protecting their information.
Facebook also has multiple interests to juggle.
Facebook has an interest in protecting their users privacy while providing a satisfactory product so the company may continue to grow and
generate revenue. Facebook also has an interest
in generating revenue for its shareholders. Facebook generates substantially all of its revenue
through advertisements.134 Enter another party
LABOR LAW JOURNAL
with an interest in this situation, the advertisers.

Facebook provides a means by which marketers
and advertisers can gather valuable information
about their customers. Facebook also has an
interest in keeping these marketers and advertisers happy, or Facebooks revenue could suffer.
Therefore, Facebook must maintain a balance in
which its users privacy is reasonably maintained
and also keep its advertisers happy enough to
continue advertising.135
To give some context, consider the following.
Facebook has over one billion MAUs.136 Facebook captures substantially all their revenue by
attracting advertisers.137 Advertisers gain exposure to Facebook users when users post about or
like a brand, product, service, etc. Platforms
(e.g. games, applications, other software) can be
created by developers and run on Facebook.138
Platforms may gain access to a users demographic information from their applications on
Facebook.139 Often, a developer for a company
interested in advertising on Facebook, can create an application for their company and gain
consumers data when they interact with their
application. Likewise, advertisers may create an
application for the user to interact with, and thus,
gain valuable demographic information sought
by the advertiser.
Part of the FTC settlement concerned Facebooks giving third-party advertisers much more
demographic information than was required,
and at some point even all that users friends
demographic information. Facebook has an
interest in generating revenue and profit for
its shareholders, and a responsibility to protect
their users privacy. This can expose Facebook
users to a privacy risk if Facebook continues to
make alterations to their website which change
default privacy settings without informing users.
Facebook generates substantially all their revenue through advertisements.140 As mentioned,
the Newsfeed and other Facebook features have
broadcasted Facebook users purchasing decisions and other personal information to their
friends on Facebook. This creates a conflict
of interest because Facebooks revenue model
relies on the access it provides third parties to
its one billion users and their valuable personal
user information. Facebook has neglected to

protect users personal information from third
parties, like advertisers, who gain valuable information from gaining access to Facebooks
users. Although third parties, such as employers, may claim to have an interest in viewing an
applicants or employees Facebook or social
media, few groups have demonstrated that this
is a justifiable interest.
Applicants seeking employment must be
mindful of the personal information they chose
to publicly display and share on social networks.
If an applicant has not changed his or her privacy
settings on Facebook, the default privacy settings
are likely set for everyone to view.141 Just because
a user has changed their privacy settings, does
not ensure that Facebook hasnt altered them
with a new update.142 If Facebook chooses to
make a change to everyones privacy settings,
the only policy in place requires Facebook to
give their users notice by posting the changes on
the Facebook Privacy page.143 After the notice is
posted, users have seven days to vote on it.144 The
policy states that Facebook will honor a request
not to enact the changes if a vote is commenced
by users, and the vote will be binding on us if
more than 30 percent of all active registered
users as of the date of the notice vote.145 To put
it in perspective, at Facebooks current number
of active registered users, 30 percent of active
users would be 300,000,000 users.146 The last revisions Facebook proposed to their Statement of
Rights and Responsibilities and Data Use Policy
garnered a staggering 0.038 percent or 342,632
of its 900 MAUs at the time.147 The recent settlement with the FTC has required Facebook to
make changes and provide that some options for
privacy changes must be on an opt in basis.148
However, this does not require Facebook do so
for every update or change.149
Staying on top of the latest Facebook privacy
settings is an almost overwhelming task. One
study showed that nearly half of social network
users keep the networks default privacy settings.150 Another study showed 13 Million U.S.
Facebook users do not use or are unaware of the
sites privacy control.151 Since their settlement
with the FTC, Facebook has tried to comply with
93
the settlement by offering their users an explanation of their privacy settings.152 Their website
offers a video explaining your privacy settings.153
This video is also two minutes long.154 Additionally, Facebook has an extensive website with
several links and explanatory pages; however,
it would take the average user a couple hours
to navigate the page and absorb the information.155 Would this complex set of instructions
guarding the privacy of over one billion users
be needed if Facebook were a social network
absent of advertisers? One can begin to imagine
a see-saw on a playground, with the happiness of
Facebooks users on one side, and the advertisers
on the other. How much can Facebook pile on
before users are weighed down with the burden
of guarding their information so much they stop
having fun?
As mentioned, Facebook has publicly declared that it generates substantially all of its
revenue through advertisements.156 It is thus easy
to see that it is in Facebooks interest to share
user demographic information with these advertisers.157 Likewise, these privacy settlements
that have cost the company millions for violating
their users privacy158 could in fact be seen as
small investments toward satisfying their overall customer, not the user, but the advertisers.
Generating revenue serves the interests of the
shareholders. The irony is that this revenue may
come from violating these shareholders privacy
by oversharing their Facebook demographic
information with advertisers. This conflict of
interest could cause users to question Facebooks
true interest in protecting their information and
privacy, and thus, it is important to set up legislation and regulations to protect users from conflicting interests. Without the proper protection,
an outcry may occur after Facebook changes
users privacy settings yet again without notice
to users,159 a public apology may follow, but the
damage was done, advertisers (or employers)
were able to gain access to personal information
of a users Facebook friends160 because Facebook
allowed it through their default settings.
Employers claim to have an interest in the
visibility of an applicants or employees social
media profile, such as their Facebook account.
94
Employers have used this medium to prescreen

applicants to discover if they fit company culture,
have badmouthed a prior employer, have lied
about their qualifications, made discriminatory
comments, to find information if the person
drinks or does drugs, or as other reasons not
to hire.161 Organizations such as law enforcement claim to have an interest in screening
their applicants and employees on social media
networks.162 Financial institutions such as large
banks and securities firms have also shown interest in continuing to monitor applicants and
employees personal social media accounts to
assure transparency and discourage foul play.163
However, most employers provide little reason
to justify asking for an applicants or employees
social media information.
C. Who Will Win the War Over Your

Priceless Privacy and Information?
A classic battle to pass legislation has and will
most likely ensue with lobbying164 from different sides because there is an interest in users
personal Facebook information. 165 However,
Facebook has 70 percent of Internet users in the
United States as active monthly users.166 This
presents a common sense argument that the most
important party needing protection for activity
on social networks is the user, not the advertiser,
employer, or other institution seeking more
information simply because it is contained on
the Internet. Although the Internet may appear
public, this does not allow social media users to
lose privacy rights to unwelcome third parties
because users confide their personal information
on Facebook.167 Not surprisingly, the FBI also
wants Facebook to add back doors which the
agency can use to eavesdrop on users to monitor suspected criminals.168 Financial institutions
insist they want their employees Facebook and
social network information to prevent their employees from providing others with trade secrets
and opportunities for inside trading.169 However,
a logical counter argument may be made where
these financial institutions place internal policies
in place that permit or prohibit various activities
of their employees.170 Or, if their employee is
required to have a social network account as an
LABOR LAW JOURNAL
agent of the company, the employee have one

account for business and a separate personal
account where work related conversations and
actions are prohibited.171
Employers claim they have an interest in this
information while hiring because they use it to
see if the applicant presents himself or herself
professionally, is well rounded, and fits the company culture.172 However, some employers may
require for certain jobs that an employee have
an active position on social networks as an agent
of the employer and maintain a social network
page.173 Therefore, employers may have a valid
ground to demand disclosure of employment
related social network usernames and passwords.
Advertisers love the information for obvious
reasons such as exposure, views, recommendations, and demographics. However, Facebook
has 19 percent of its users in the United States.174
To keep these users happy, it is in Facebooks
interest to lobby for legislation to protect their
users.175 The revenue Facebook generates by
advertisements would not exist without this user
base. Although Facebook has stated they are
against a user providing their login information
to an employer and that it is wrong for an employer to request such,176 they have done little
to support this statement.
The fact one could lose his or her source of
income or potential to earn income based on his
or her online social network profile is alarming.
Due to the unprecedented growth in technology
and the slow pace of legislature, current protections do not exist to protect users of social media
from harming their reputation, endangering
their ability to earn income, and third parties
from violating their privacy rights. Information
such as an applicants or employees religion,
political views, and sexual orientation are all
available to the employer to form opinions of
the applicant or employee which may affect their
employment situation. Title VII does not allow
an employer to discriminate against an applicant
or employee on the grounds of race, religion,
ethnicity, sexuality, gender, and age,177 yet an
employer could learn all of this information
through access to a users Facebook account. All
of this information an employer could theoreti-
cally use to discriminate against an applicant or

employee. Allowing an employer to view an applicants or employees Facebook account is like
the employer being allowed to walk through the
applicants or employees house, look at family
pictures, see their family, and interact with their
close friends. Would you invite your potential or
current employer to your house without cleaning
up before they arrived? There must be a socially
and legally acceptable border established that
cannot be crossed by an employer into the personal lives of their applicants and employees.
However, if you use Facebook, it is best not to
wait for damage to be done by a third party.
III.The Legislative Landscape to

Protect a User of Facebook or
Other Social Media
Currently, employers in every state except
Maryland, Illinois, California, Michigan, Utah,
New Mexico, and Arkansas could legally ask to
see your Facebook or ask you to provide the employer with your Facebook login information.178
When employers use Facebook as a background
check, it gives the employer an advantage which
leaves the applicant, one who may desperately
need a job, feeling almost powerless to refuse
giving in to the employer.179 Users of Facebook
and other social media need legislation enacted
to protect themselves from intrusive employers
who practice or plan to practice these types of
discriminating actions. The legislation passed
in Maryland prohibits an employer from asking an applicant for employment or a current
employee to provide personal social media information.180 If an applicant or employee refuses
the employers request, the legislation prohibits
the employer from refusing to hire the applicant
or disciplining or discharging the employee.181
A. Current and Proposed Legislation

There has been a Federal bill recently introduced
to committee entitled Social Network Online
Protection Act (SNOPA) that would prohibit employers from engaging in this practice. This bill
provides a $10,000 penalty for employers who
request social media passwords and user names
95
from applicants and employees. We will have to

wait and see if our elected representatives have
the common sense to see why this legislation is
important and should be passed. Hopefully the
urgency of this legislation is apparent as people
continue to have their lives affected negatively
by employers using social media to discriminate
towards applicants and employees. Several states
have also proposed bills to address this growing
concern. States which have proposed or enacted
legislation addressing this issue are Illinois,182
California, Michigan, Minnesota, Missouri,
New York, South Carolina, and Washington.183
It is unclear how many employers have actually
demanded an applicant or employee for information regarding their social media accounts.
However, there has been an increase of cases
being filed where employees feel employers used
bias and discrimination by demanding their social media login information or by looking over
the shoulder of the applicant while the applicant
logged into their account.184
The bill introduced in California made a step
forward as it recently advanced into the California State Senate.185 Some states have proposed
bills that prohibit higher education institutions
from requesting applicants or students personal social media information;186 Californias
bill does not because there is another bill introduced specifically to address that issue.187 The
bill introduced in the California State Senate
would prohibit an employer from requiring or
requesting an employee or applicant for employment to disclose a user name or password for the
purpose of accessing personal social media.188
The bill would also prohibit an employer from
requiring or requesting an employee or applicant
for employment to access personal social media
in the presence of the employer, or to divulge
any personal social media.189 Additionally, this
bill would also prohibit an employer from discharging, disciplining, threatening to discharge
or discipline, or retaliate against an employee
or applicant for not complying with a request or
demand by the employer.190
The bills that have been introduced in Illinois,
Michigan, Minnesota, Missouri, New York, South
Carolina, and Washington contain similar provi-
96
sions which protect applicants for employment

and employees.191 All bills provide the common
protection that an employer may not demand
user name or password information from the
applicant or employee.192 Illinois, Minnesota,
and Washington have specific language in the
proposed bills that prohibit an employer from also
demanding the applicant or employee to access
their personal social media in the presence of the
employer.193 The bills introduced in Michigan,
Missouri, New York, and South Carolina, however, do not include provisions that specifically
address this issue.194 This could lead to confusion
when situations arise which require an interpretation of the statute if the bills are passed. It would
most likely be in the states interest to modify
certain provisions of these bills before their final
readings to reduce future misinterpretations.
Revising and passing SNOPA could be solution to the problems presented when employers
use social media for their hiring and disciplining
actions. Having a law on the federal level would
grant 70 percent of American Internet users a
more certain set of privacy rights guarding their
personal online activities from intrusive and
discriminatory actions by potential and current
employers. SNOPAs main purpose is to prohibit employers from requiring or requesting
that employees and applicants for employment
provide a user name, password or other means
of accessing a personal account on any social network website.195 Additionally, SNOPA prohibits
an employer from discharging, disciplining, or
discriminating against an employee or applicant for employment after refusing or declining
the employers request for such information.196
SNOPA also similarly protects students from
higher education institutions and local education agencies.197
IV. Analysis:The Global Embrace of

Technology, Social Networks, and
Managing an Online Profile
The explosion of technology has led to uncertain
legal grounds as our legislative bodies try to address the issues and keep up with problems we
encounter from this growth. Facebook has grown
LABOR LAW JOURNAL
into a large company which has almost one seventh of the worlds population as active monthly
users. This is despite the fact that Facebook is
blocked in China.198 Although the growth rate of
Facebook has slowed in the United States, it has
seen tremendous growth in other countries. We
are becoming more interconnected, and communications technologies such as the laptop, high
speed Internet, the smart phone, and Facebook
have only facilitated this process. The bottom
line, technology, the Internet, online communications, and Facebook (or other social media
networks) is a current presence in our lives and
will be a part of our future.
Smartphones account for half of all the
mobile phone purchases made in the United
States.199 Likewise, as of September 2012, over
60 percent of Facebooks active monthly users
accessed Facebook through a mobile device.200
Amazingly, Facebook accounts for 10 percent of all iPhone data.201 Further, one billion
people actively use Facebook each month.202
Approaching this issue by questioning whether
Facebook and social networks are just a fad is
almost absurd and juvenile. As our medium of
communication changes to embrace the current
technology of the day, we must have legislation
that also embraces societys acceptance of these
mediums of communication and protects their
users expectation of privacy.
A.The [Almost] President of the

United States on Facebook
The President of the United States in 2044 is
currently born. He or she may currently be
20 years old, or may also be three years old.
Regardless, this person has been alive during
the existence of Facebook. Lets imagine for
discussion purposes, the person who will be
elected President of the United States in 2044
is currently between 14 and 18 years of age.
The parents of said person were optimistic and
named their child President. As President enters
high school and decides where to go to college,
President is living in a world where he or she is
able to socialize with his or her friends almost
instantaneously through the Internet and social
networks such as Facebook.
President, like almost all kids the same age,

decides to actively use a Facebook account.
President then leaves home for college, meets
a lot of people along the way, and makes some
friends. Sometimes President even likes to get
on Facebook and reminisce of all the good times
spent with friends and family by looking at
pictures and reading old messages, comments,
and posts. Although a few of pictures, posts,
and messages may seem out of context or inappropriate to an outside viewer, there is nothing
to show that President was a bad person, or any
different from the very people you consider your
friends. In fact, you have some similar pictures,
posts, and messages on your Facebook account.
Later in life, President decides to run for
President of the United States because President
has some good ideas which many people like.
President is a born leader, of good morals, well
educated, and a model citizen. Many powerful
people have endorsed President and President
easily wins the primary. President is currently
leading the recent voting surveys when Presidents opponent brings an advertising campaign
attacking Presidents character. The focus is a
picture from Presidents Facebook account. The
same account President deleted when President
decided to get serious for political office decades
ago. Recently, this photograph surfaced from
an unknown source, and in the photograph,
President appears extremely intoxicated while
holding a beer at a college party. Further, on a
table in the background of the picture appears
to be a powdery white substance with President
leaning over the table, appearing to be extremely
interested in the tables contents.
Do you remember that one photograph you
were embarrassed about during your interview?
The one that you took the steps to untag
yourself in, yet your friend forgot to remove
the photograph? President, like you, had a
friend who also forgot to remove a photograph
from Facebook. That same friend is friends on
Facebook with someone named Vendetta, who
doesnt like President or Presidents political
views. Vendetta didnt like President ever since
that one occurrence in college when President
and Vendetta were fending for affection from the
97
same attractive classmate at a party in college.

President embarrassed Vendetta with a joke causing Vendetta to leave the party fuming and determined to get even. Ironically, this happened
at the same party portrayed in the photograph
in the advertising campaign against President.
This photograph is damaging to President,
although it may be debated that we had a former President who may or may not have used
cocaine.203 Presidents reputation is tarnished
beyond repair. President loses the election by a
large percentage, bordering that of a landslide,
crushing the dream to ever become President of
the United States. Where did President go wrong?
Was it going to the party in college where the
photograph was taken? Was President supposed
to be constantly vigilant of all photographs ever
taken of President out of fear one photograph may
ruin a future goal? What if this Presidents goal to
become the President of the United States wasnt
even a thought at the time of this photograph?
Why didnt Presidents friend remove the photograph over 20 years ago when President asked?
Yes, the above hypothetical is an extreme of
what could happen if a Facebook user ran for
President of the United States. The hypothetical is intended to demonstrate that we are all
responsible for our own online personalities.
These personalities may change over time as
our lives change, and so do the goals we desire
to achieve. However, Facebook still maintains
your past activity when not deleted. Although
we may not know if our future employer will use
Facebook to discriminate against us, dont put
yourself at risk. That one online blemish could
open a Facebook user up to an unexpected
surprise. Facebook users need to be responsible
and realize that the information they chose to
publish may be more public than they realize.
This information could be made public by a
friend or through a friend of a friend who has
different privacy settings.
password, or even asking the user to log in to their

account for the employer to view. Dont wait for
a dysfunctional Congress204 to protect your image
and personal information. We as social network
users must limit the information we display publicly and provide to third-party services such as
Facebook. The information you entrust to social
networks can become vulnerable when that network undergoes growth and change while juggling
many different interests. Not only must the user
be aware of privacy changes that may occur but
also must be hesitant the next time they post a
comment or picture. There is no way to be certain
a coworker or peer will be the outlet in which an
employer discovers your embarrassing or insulting
comment or picture on Facebook from a month
ago. Although it may seem that in time protective
measures will be taken and our government may
pass laws to protect our online social networks,
dont wait until that one comment you made on
Facebook costs you a paycheck.
Protecting ones online reputation has been a
costly lesson for some people and has become an
added social dimension as humans evolve in the
means which we communicate. There is no certainty that the information you post on a social
network will be erased because of the nature in
which social networks link together friends and
friends of friends. Social circles are becoming
smaller as people discover they are only a click
away from someone they might know. An employer could simply type your name in a public
search engine, such as Google, and with a few
clicks find out your age, religion, political views,
sexual orientation, meaningful quotations, and
favorite band. An employer could also find that
embarrassing photograph or derogatory comment you made about a recent current event or
group of people without really thinking about
what you typed before sending it to Facebook.
B. Protect Your [Online] Reputation

from Your Employer and the Public
Simply put, the less information an individual

exposes to the public on their social media profile
the more positive effect it will have to their online
reputation. Yes, the careful and cautious individual
may have success at obtaining a private social life
Employers have used Facebook to discriminate

against applicants for employment and employees by requiring or requesting their usernames,
98
Conclusion
LABOR LAW JOURNAL
online. However, this requires an understanding

of the technology and the privacy features offered
by Facebook and other social networks. Even users who manage their privacy settings should be
apprehensive of what one shares on Facebook
and information one provides to Facebook.
There are several instances which Facebook has
violated users privacy by altering privacy settings
without proper notice to users. This is indicative
of a pattern of clumsy haste and disregard for the
very information you entrust Facebook to protect
from others. Therefore, the less information a user
provides or posts on Facebook, the less risk for an
embarrassing social network mishap.
Facebook users should continue to balance
the risks of their online social life and their
online reputation, while Facebook continues

to improve their privacy settings. Legislation should be enacted to protect users of
online social networks from employers. This
legislation would also assist social networks
to achieve what they were intended to do,
connect people who choose to be connected.
The globe is becoming smaller as humans
communicate faster and are able to do so from
almost anywhere. Although these devices have
changed the way we communicate, it should
not reduce the users expectation of privacy.
Laws that protect this expectation of privacy
are needed to determine the legal boundaries
in which one billion people communicate and
interact each month.
ENDNOTES
1
5
6
7
8
10
11
Alan Finder, For Some, Online Persona Undermines a Rsum, The New York Times (Jun. 11,
2006), http://www.nytimes.com/2006/06/11/
us/11recruit.html?_r=1&pagewanted=all.
Robert Siegel, Resume, Cover Letter And Your
Facebook Password?, NPR (Mar. 21, 2012) http://
www.npr.org/2012/03/21/149091139/resumecover-letter-and-your-facebook-password.
Aemon Malone, Worker fi red over Facebook
comment settles lawsuit, Digital Trends (Feb. 9,
2011), http://www.digitaltrends.com/computing /worker-fired-over-facebook-commentsettles-lawsuit.
Facebook Firing Case Settles with NLRB (Feb.
9, 2011), http: //www.goldbergsegalla.com /
resources/news-and-updates/facebook-fi ringcase-settles-nlrb.
Finder, supra note 1.
Eric Frazier, Facebook post costs waitress her job,
Charlotte Observer (May 17, 2010), http://www.
charlotteobserver.com/2010/05/17/1440447/
facebook-post-costs-waitress-her.html.
Frazier, supra note 6.
Catharine Smith, Fired Over Facebook : 13
Posts That Got People CANNED, Huffington
Post (Jul. 26, 2010), http://www.huffi ngtonpost.com /2010 / 07/26/fired-over-facebookposts_n_659170.html # s115707&title=Swiss_
Woman_Caught.
Jackie Cohen, Over 24 Pending Lawsuits Involve
Facebook Firings, AllFacebook (May 25, 2011),
http://allfacebook.com/over-24-pending-lawsuits-involve-facebook-firings_b44641.
Note, hereinafter social network and social
media will be used interchangeably throughout
and it may be noted that many people have
multiple accounts.
Toni Bowers, Another firing over Facebook comments: Lawsuit pending, Tech Republic (Nov.
17, 2010 ) , ht tp : //w w w.techrepublic.com /
blog /career/another-firing-over-facebookcomments-lawsuit-pending/2565 (a worker
posted criticisms of her supervisor on Facebook
which led to her termination, the National Labor
Relations Board (NLRB ) claimed Facebook
was concerted activity and thus employee
12
13
14
15
16
17
18
19
20
21
22
23
was wrongfully terminated. The case later

settled); See, Sam Hananel, Woman Fired Over
Facebook Comments Settles Suit, Huffington Post
(Feb. 8, 2011), http://www.huffingtonpost.
com/2011/02/08/woman-fired-over-facebookcomments_n_820487.html.
Global and Social: Facebooks Rise Around the World,
Nielsen (May 17, 2012), http://blog.nielsen.com/
nielsenwire/?p=31859.
May 2012 Top U.S. Web Brands and News
websites, Nielsen (Jun. 22, 2012) (hereinafter
Nielsen Top Web Brands), http://blog.nielsen.
com/nielsenwire/online_mobile/may-2012-topu-s-web-brands-and-news-websites.
Id.
Nielsen Top Web Brands, supra note 13.
Facebook Marketing Statistics, Demographics,
Reports and News, http://www.checkfacebook.
com (last visited Oct. 11, 2012).
Justin Lafferty, Study: 22 Percent Of Web Pages
Reference Facebook, AllFacebook (Jul. 10, 2012),
http://allfacebook.com/study-zyxt-facebookweb-influence_b94096.
Statement of Rights and Responsibilities, Facebook,
https://www.facebook.com/legal/terms (last
visited Aug. 4, 2012).
Justin Lafferty, Mom And Daughter Reunite Through
Facebook After 48 Years, AllFacebook (Jul. 19,
2012) http://allfacebook.com/facebook-momdaughter-reunite_b95043.
Nina Mandell, Facebook plea saves woman, baby,
NY Daily News (Dec. 27, 2011), http://articles.
nydailynews.com/2011-12-27/news/30563199_1_
facebook-baby-boy-social-networking-site.
Warren Blumenfeld, Bullying and Suicide: Ending the Denial, Huffington Post (May 11, 2012),
http : //w w w.huffing tonpost .com /warren-jblumenfeld /bullying-and-suicide-ending-thedenial_b_1473971.html.
Amy Mitchell, What Facebook and Twitter Mean for
News, The State of the News Media 2012, http://
stateofthemedia.org/2012/mobile-devices-andnews-consumption-some-good-signs-for-journalism/what-facebook-and-twitter-mean-fornews (last visited Jul. 20, 2012).
Infographic: U.S. Consumer Usage of Social Media to
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
Make Shopping Decisions, Empathica http://www.

empathica.com/infographic-us-consumer-usageof-social-media-to-make-shopping-decisions
(last visited Jul. 20, 2012).
Stephanie ONeill, Survey: Third of consumers use
social media sites to obtain health info, http://www.
scpr.org/news/2012/04/29/32217/survey-13rdconsumers-use-social-media-websites-ob (last
visited Jul. 22, 2012).
H.S. Teacher Loses Job Over Facebook Posting,
TheBotstonChannel (Aug. 18, 2010), http://
www.wcvb.com/H-S-Teacher-Loses-Job-OverFacebook- Posting / - / 9849586 /11284946 / - /
n9pjpqz/-/index.html.
Crit icism of Facebook, Wik ipedia , ht t p : / /
en.wikipedia.org/wiki/Criticism_of_Facebook
(last visited Jul. 22, 2012).
See, Facebook. Wikipedia, http://en.wikipedia.
org/wiki/Facebook (last visited Jul. 22, 2012).
Christopher Heine, Facebooks New Verbs Have
Marketers Talking, Clickz (Sep. 22, 2011), http://
www.clickz.com /clickz /news /2111485/facebooks-verbs-marketers-talking; See, MerriamWebster Online, http://www3.merriam-webster.com/opendictionary06/newword_search.
php?word=facebook (an online dictionary) (last
accessed Jul. 20, 2012).
The Social Network (Columbia Pictures 2010).
Facebook. supra note 28.
Facebook Newsroom, Key Facts, Facebook,
ht tp : //newsroom.f b.com /content /default .
aspx?NewsAreaId=22 (last visited Oct. 11, 2012).
Jessi Hempel, How Facebook is taking over our lives,
CNN Money (Feb. 16, 2012), http://money.cnn.
com/2009/02/16/technology/hempel_facebook.
fortune/index.htm.
May 2012 Top U.S. Web Brands and News websites, supra note 14.
Facebook Newsroom, Key Facts, supra note 36.
Cara Pring, 100 social media statistics for 2012,
The Social Skinny (Jan. 11, 2011), http://thesocial-
99
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
skinny.com/100-social-media-statistics-for-2012.
Amendment No. 8 to Form S-1 REGISTRATION
STATEMENT Facebook, Inc., United States Securities and Exchange Commission (hereinafter
SEC Filing), at 16, http://sec.gov/Archives/
edgar/data /1326801/ 000119312512235588 /
d287954ds1a.htm.
Facebook features, Wikipedia http://en.wikipedia.
org/wiki/Facebook_features (A description of all
the Facebook features, past and present) (last
visited Jul. 22, 2012); See, How to Use Facebook:
Your Guide to the Worlds Most Popular Social
Network, http://howtousefacebook.com, (an
interactive blog that has many articles and posts
demonstrating various features and how-to
guides on Facebook).
Facebook features, supra note 42.
Some other things you need to know, Facebook,
https://www.facebook.com/about/privacy/other
(last visited Aug. 8, 2012).
Kathleen E. Vinson, The Blurred Boundaries of
Social Networking in the Legal Field: Just Faceit,
41 U. Mem. L. Rev. 355, 363-366 (discusses the
various actions or inactions by Facebook which
effected Facebook users existing privacy settings
with little or no notification to the user).
SEC Filing, supra note 41, at 88.
Evelyn M. Rusli, Facebook Buys Instagram for $1
Billion, The New York Times (Apr. 9, 2012),
http : //dealbook.nytimes.com / 2012 / 04 / 09 /
facebook-buys-instagram-for-1-billion.
Instagram Statistics: 1 Billion Photos Uploaded,
StatSpotting (Apr. 3, 2012), http://statspotting.
com /2012/ 04 /instagram-statistics-1-billionphotos-uploaded.
Justin Lafferty, Facebook Adds Controls To Curb Cyberbullying. AllFacebook (Jul. 13, 2012), http://allfacebook.com/cyberbullying-controls_b94495.
Mandell, supra note 20.
U.S. Consumer Usage of Social Media to Make
Shopping Decisions, supra note 23.
See, Facebook features, supra note 43.
Cara Pring, 100 more social media statistics for
2012, The Social Skinny (Feb. 13, 2012). http://
thesocialskinny.com/100-more-social-mediastatistics-for-2012.
Jeff Sonderman. How news orgs are reaching millions
through Facebooks new apps, Poynter.org (Nov.
30, 2011), http://www.poynter.org/latest-news/
media-lab/social-media/154470/6-lessons-fromnew-facebook-stats-on-social-news-sharing.
ONeill, supra note 24.
Justin Lafferty, Facebooks Newest Feature Could
Be Banking. AllFacebook (Jul. 11, 2012), http://
allfacebook.com /facebooks-newest-featurecould-be-banking_b94158.
Brandon Griggs, Report: Facebook is making a
phone, CNN (May 28, 2012), http://www.cnn.
com/2012/05/28/tech/mobile/facebook-phone/
index.html?hpt=hp_bn11.
Justin Lafferty, In Washington State, You Can Register To Vote Through Facebook, AllFacebook (Jul.
17, 2012), http://allfacebook.com/washingtonvote-facebook_b94707.
Justin Lafferty, CNN, Facebook Announce Several
Initiatives For 2012 Presidential Election, AllFacebook (Jul. 9, 2012), http://allfacebook.com/
100
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
cnn-2012-presidential-election_b93836.
Justin Laffer ty, Youve Been Served Over
Facebook?, AllFacebook (Jun. 15, 2012), http://
allfacebook.com/served-via-facebook_b91893.
Heather Smith, Facebook Used by Courts to Find
Those Who Are Only Online, BloombergBusinessweek (Jun. 7, 2011), http://www.businessweek.
com/news/2011-06-07/facebook-used-by-courtsto-find-those-who-are-only-online-.html.
Hempel, supra note 37.
Vinson, supra note 48, at 363-366.
Mark Zuckerberg, Our Commitment to the
Facebook Community, The Facebook Blog (Nov.
29, 2011), https: //blog.facebook.com /blog.
php?post=10150378701937131 (an apology from
Mark Zuckerberg).
Id.
Facebook Settles FTC Charges That It Deceived Consumers By Failing To Keep Privacy Promises, Federal
Trade Commission (Nov. 29, 2011), http://ftc.
gov/opa/2011/11/privacysettlement.shtm.
Facebook settles lawsuit over Sponsored Stories,
CNBC (May 22, 2012), http://www.cnbc.com/
id/47524983/Facebook_Settles_Lawsuit_Over_
Sponsored_Stories.
Dan Fletcher, Facebook Mania: Privacy Changes
For Nearly 500 Million, Time Magazine (May 20,
2010), http://www.time.com/time/magazine/
article/0,9171,1990798,00.html (Beacon, a new
feature that was activated and by default broadcasted over Newsfeed a users friends recent
purchases on to third party advertisers).
Facebook Privacy, EPIC, http://epic.org/privacy/
facebook (There are still on-going privacy issues
surrounding broadcasts over the Newsfeed and
social advertisements on Facebook) (last visited
Jul. 18, 2012).
Id.
Fletcher, supra note 80.
Introducing Timeline, Facebook, https://www.
facebook.com /about /timeline (information
regarding Facebooks Timeline) (last visited Jul.
29, 2012).
Jackie Cohen, How to Protect Your Facebook Timeline Without Wasting Time!, AllFacebook (Jan.
30, 2012), http://allfacebook.com/facebookprivacy-fix-timeline_b75559.
Emil Prot alinski, E PIC : Facebook Timeline
changes users' privacy settings, ZDNet (Jan. 10,
2012), http://www.zdnet.com/blog/facebook/
epic-facebook-timeline-changes-users-privacysettings/7103.
David Kirkpartick, Why Facebook matters,
CNN Money (Oct. 6, 2006), http://money.cnn.
com/2006/10/06/magazines/fortune /fastforward_facebook.fortune/index.htm.
Robert McGarvey, Facebooks Top Lawsuits Target
User Privacy, Internet Evolution (Feb. 24, 2011),
http: //www.internetevolution.com /author.
asp?section_id=852&doc_id=204160.
Emil Protalinski, Facebook hit with $15 billion class action user tracking lawsuit, ZDNet
(May 18, 2012), http://www.zdnet.com/blog/
facebook/facebook-hit-with-15-billion-classaction-user-tracking-lawsuit/13358.
Facebook Settles Lawsuit Over Sponsored Stories,
supra note 79.
Criticism of Facebook, supra note 27, (see Litigation).
Dave Jamieson, Facebook Firings: Employers Need
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
To Mind Labor Law, Report Finds, Huffington

Post (Aug. 8, 2009), http://www.huffi ngtonpost.com/2011/08/09/facebook-fi rings-laborlaw_n_922389.html.
Nick Bilton, The Price of Facebook Privacy? Start
Clicking, New York Times (May 12, 2012), http://
www.nytimes.com /2010 / 05/13/technology/
personaltech/13basics.html?_r=1.
Id.
Kashmir Hill, Mark Zuckerberg Patents Facebooks
Complicated Privacy Settings, Forbes (Jul. 24,
2012) , http: //w w w.forbes.com /sites /kashmirhill/2012/07/24/mark-zuckerberg-privacypatent-stalkbook.
Facebook Settles FTC Charges That It Deceived
Customers, supra note 78.
Hempel, supra note 37.
Thirty-seven percent of companies use social
networks to research potential job candidates, CareerBuilder (hereinafter CareerBuilder Survey)
(Apr. 18, 2012), http://www.careerbuilder.com/
share/aboutus/pressreleasesdetail.aspx?id=pr69
1&sd=4%2F18%2F2012&ed=4%2F18%2F2099.
Managing Your Online Image Across Social
Networks. The Reppler Effect (Sep. 27, 2011),
http://blog.reppler.com/2011/09/27/managingyour-online-image-across-social-networks; See,
Bob Sullivan, When it comes to online reputation,
'life's not fair, and companies aren't either', NBC
News (Sep. 30, 2011), http://redtape.nbcnews.
com /_news / 2011/ 09 /30 / 8044153-when-itcomes-to-online-reputation-lifes-not-fair-andcompanies-arent-either.
Managing Your Online Image Across Social Networks,
supra note 105; Sullivan, supra note 105.
Molly McDonough, Facebooking Judge Catches
Lawyer in Lie, Sees Ethical Breaches # ABAChicago, ABA Journal (Jul. 31, 2009), http://www.
abajournal.com /news /article /facebooking _
judge_catches_lawyers_in_lies_crossing_ethical_lines_abachicago.
Id.
Jan Pudlow, On Facebook? FBBE may be planning
a visit, Florida Bar News (Sep. 1, 2009), http://
www.floridabar.org/DIVCOM/JN/JNNews01.nsf
/8c9f13012b96736985256aa900624829/d288355
844fc8c728525761900652232?OpenDocument.
Selma Al-Samarrai, Millennials: Facebook Passwords Are Now Part of the Job Interview Process,
Watch Out, http: //w w w.policymic.com /articles/5932/millennials-facebook-passwords-arenow-part-of-the-job-interview-process-watchout (last visited Aug 5, 2012); See, Manuel Valdez,
Job seekers getting asked for Facebook passwords,
Chicago Sun Times (Mar. 20, 2012), http://
www.suntimes.com/business/11416671-420/jobseekers-getting-asked-for-facebook-passwords.
html; See, Mike Wehner, Could employers begin
asking for Facebook passwords on applications?,
Tecca, http://www.tecca.com/news/2011/11/30/
facebook-password-jobs (website displays a
picture where a North Carolina clerical position
for the police department asks for applicants
Facebook username and password) (last visited
Aug 3, 2012).
Martha White, Facebook Increasingly Becomes A
Helpful Tool For Employers In Job Interviews. Time
Moneyland (Mar. 9, 2012), http://moneyland.
LABOR LAW JOURNAL
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
time.com/2012/03/09/can-interviewers-insiston-shoulder-surfing-your-facebook-page.
Siegel, supra note 2.
CareerBuilder Survey, supra note 104; See,
J. Swift, Asking Job Applicants for Facebook
Passwords Does Not Go Far Enough, Forbes
(Jan. 31, 2012) http://www.forbes.com/sites/
chunkamui/2012/03/21/one-simple-strategyfor-protecting-companies-from-rogue-ceos-2.
Ian Bymsideal, Six Clicks of Separation: The Legal
Ramifications of Employers Using Social Networking
Sites to Research Applicants, 10 Vand. J. Ent. & Tech.
L. 445, 462-465 (a brief overview of how an employer could be liable for discriminating against an
applicant after being exposed to various information about the applicant that could possibly violate
Title VII such as an applicants religion, political
affiliation, sexual orientation, etc.).
Kevin Rector, Maryland becomes first state to ban
employers from asking for social media passwords,
Baltimore Sun (Apr.10, 2012), http://articles.
baltimoresun.com /2012-04-10 /news/bs-mdprivacy-law-20120410_1_facebook-passwordsocial-media-bradley-shear.
Statement of Rights and Responsibilities, supra
note 19.
Kayla Webley, Background Check for the Digital
Age: Employers, Colleges Demand Full Facebook
Access, Time Moneyland (Mar. 6, 2012), http://
moneyland.time.com/2012/03/06/backgroundcheck-for-the-digital-age-employers-collegesask-for-facebook-passwords.
James Grimmelmann, Saving Facebook, 94 Iowa
L. Rev. 1137, 1140.
Rector, supra note 115.
Nick Madigan, Officer forced to reveal Facebook page,
Baltimore Sun (Feb. 23, 2011), http://articles.baltimoresun.com/2011-02-23/news/bs-md-ci-officerfacebook-password-20110223_1_facebook-pagefacebook-password-privacy-protections.
Bob Sullivan, Govt. agencies, colleges demand
applicants Facebook passwords, NBC News
(Mar 6, 2012), http://redtape.nbcnews.com/_
news/2012/03/06/10585353-govt-agencies-colleges-demand-applicants-facebook-passwords.
Rector, supra note 115, at 2.
Bill Analysis, A.B. 1844 (Cal. 2012), http://www.
leginfo.ca.gov/pub/11-12/bill/asm/ab_1801-1850/
ab_1844_cfa_20120625_124933_sen_comm.
html (last visited Aug 1, 2012); David Cohen,
FBI Wants To Access Facebook Through Back Door,
infra note 168.
C
ohen, supra note 9.
Cohen, supra note 9.
Many claims involve a constitutional issue asking
the court to interpret the First Amendment and
an employees rights to use Facebook outside
of the workplace while off duty versus while at
work; See, Smith, supra note 8.
Bowers, supra note 11; Hananel, supra note 11.
Frazier, supra note 6.
Dave Jamieson, Facebook Firings: Feds, Managers, Navigate New Territory In Employment,
Huffi ngton Post (Aug. 2, 2011), http://www.
huffingtonpost.com / 2011/ 08 / 02 /facebookfi rings-new-territory_n_915520.html (A frustrated Wal-Mart worker posted comments
about her supervisor after having an argument.
A co-worker showed the supervisor a printout
of the Facebook posting where the employee
called the supervisor a super mega puta, when
puta is Spanish for whore).
132
133
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
151
152
153
154
155
156
157
158
159
160
161
162
163
164
165
166
167
Information we receive about you, Facebook,

https://www.facebook.com/about/privacy/yourinfo, (last visited Aug. 4, 2012).
Reports and News, supra note 16.
SEC Filing, supra note 41.
Peter Cohan, GM to Facebook: Ill Waste My $10 Million Elsewhere, Forbes (May 16, 2012), http://www.
forbes.com/sites/petercohan/2012/05/16/gm-tofacebook-ill-waste-my-10-million-elsewhere.
Grimmelmann, supra note 118, at 1142; See, Junichi P. Semitsu, From Facebook to Mug Shot: How
the Dearth of Social Networking Privacy Rights Revolutionized Online Government Surveillance, 31 Pace
L. Rev. 291, 303-304 (showing the unlikelihood
of a user going through the process of opting
into various privacy changes and settings, thus
accepting Facebooks privacy default settings).
Vinson, supra note 48 at 363-366.
Some other things you need to know, supra note 47.
Id.
Id.
David Cohen, Facebook Adopts Proposed Revisions
To Statement Of Rights And Responsibilities, Data
Use Policy, AllFacebook (Jun. 12, 2012), http://
allfacebook.com/ssr-data-use-policy-revisionsadopted_b91416
Josh Constine, Facebooks Settlement With
FTC Confirmed: Privacy Changes Must Be Opt
In UPDATED, Tech Crunch (Nov. 29, 2011)
http://techcrunch.com/2011/11/29/zuckerbergftc-settlement.
Id.
Grimmelmann, supra note 118, at 1142.
Emil Protalinski, 13 million US Facebook users dont
change privacy settings, ZDNet (May 3, 2012),
http : //w w w.zdnet .com /blog /facebook /13million-us-facebook-users-dont-change-privacysettings/12398.
Data Use Policy, Facebook, https://www.facebook.com/full_data_use_policy (last visited Aug.
4, 2012).
How Sharing Works Now, Facebook, https://
www.facebook.com/about/sharing (last visited
Aug. 4, 2012).
Id.; See, Data Use Policy, supra note 152.
Chris Cox, Making It Easier To Share With
Who You Want, The Facebook Blog (Aug.
23, 2011), https: //blog.facebook.com /blog.
php?post=10150251867797131.
Facebook Settles FTC Charges That It Deceived
Consumer, supra note 78.
CareerBuilder Survey, supra note 104.
Rector, supra note 115 at 2.
Bill Analysis, supra note 125.
Jennifer Moire, UPDATED: Facebook Lobbying
Continues Record-Breaking Pace Following IPO,
AllFacebook (Jul. 23, 2012), http://allfacebook.
com/lobbying-2q-2012_b95180.
Although sharing information with a third party
168
169
170
171
172
173
174
175
176
177
178
179
180
181
182
183
184
185
186
187
188
189
190
191
192
193
194
such as a friend could theoretically open your

information to the public as courts have ruled
sharing information with even a small group of
people who have a close relationship cannot
have an expectation of privacy. See, e.g. Cordts
v. Chicago Tribune Co., 860 N.E.2d 444, 450-51
(Ill. App. Ct. 2006).
David Cohen, FBI Wants To Access Facebook
Through Back Door, AllFacebook (May 30, 2012),
http://allfacebook.com/fbi-going-dark_b90273.
CareerBuilder Survey, supra note 104.
Facebook features, supra note 43 (referencing to
companies that have a website on Facebook to
connect with their customers and fans).
Moire, supra note 164.
Statement of Rights and Responsibilities, supra
note 19.
See, generally Title VII of the Civil Rights Act of
1964, 42 U.S.C. 2000e to 2000e-17 (2012);
Americans with Disabilities Act, 42 U.S.C.
12111-12117 (2012) (An employer accessing
Facebook could discover information about an
applicant that could be cause for an employer to
not hire an applicant, a violation of Title VII).
Kashmir Hill, Hey Teacher (and Employer), Leave
Those Facebook Passwords Alone, Forbes (Mar.
7, 2012), http://www.forbes.com/sites/kashmirhill/2012/03/07/hey-teacher-and-employerleave-those-facebook-passwords-alone.
S.B. 433 (Md. 2012) (enacted).
Id.
Illinois Bill Would Outlaw Employers From Asking
For Applicants' Social Media Passwords, Huffington Post (Feb. 5, 2012), http://www.huffi ngtonpost.com /2012/ 02/ 05/illinois-bill-wouldoutla_n_1255881.html.
Molly DiBianca, More States Consider FacebookPrivacy Legislation, Delaware Employment Blog
(Apr. 23, 2012), http://www.delawareemploymentlawblog.com /2012/ 04 /states-considerfacebook-privacy-legislation.html (Michigans
legislation includes employers and educational
institutions).
Leslie Katz, Progress for Calif. bill to stop employers social-media snooping, CNET (May 23, 2012),
http://news.cnet.com/8301-1023_3-5743229893/progress-for-calif-bill-to-stop-employerssocial-media-snooping.
Landmark Social Media Privacy Bill Clears California
State Assembly on 73-0 Vote, California State
Assembly Democratic Caucus (May 10, 2012),
http://asmdc.org/members/a23/component /
k2/item /2654-landmark-social-media-privacy-bill-clears-california-state-assembly-on73-0-vote.
DiBianca, supra note 183.
See, A.B. 1349 (Cal. 2012).
A.B. 1844 (Cal. 2012).
Id.
Id.
DiBianca, supra note 183.
See, H.B. 3785 (Ill. 2012), H.B. 5523 (Mich. 2012),
H.F. 2963 (Minn. 2012), H.B. 2060 (Mo. 2012),
S.B. 6938 (N.Y. 2012), H.B. 5105 (S.C. 2012), and
S.B. 6637 (Wash. 2012)
See, H.B. 3785 (Ill. 2012), H.F. 2963 (Minn. 2012),
and S.B. 6637 (Wash. 2012)
See, H.B. 5523 (Mich. 2012), H.B. 2060 (Mo. 2012),
S.B. 6938 (N.Y. 2012), and H.B. 5105 (S.C. 2012).
101

195
196
197
198
199
Social Network Online Protection Act, H.R.

5050, 112th Cong. (2012); See, http://www.
govtrack.us/congress/bills/112/hr5050.
H.R. 5050.
Id.
Smartphones Account for Half of all Mobile Phones,
Dominate New Phone Purchases in the US, Nielsen
(Mar. 29, 2012), http://blog.nielsen.com/nielsen-
102
200
201
202
203
wire /online_mobile /smartphones-accountfor-half-of-all-mobile-phones-dominate-newphone-purchases-in-the-us.

Pring, supra note 40.
See, J. H. Hatfield, Fortunate Son: George W. Bush
and the Making of an American President, 306-11.
(3d edition, 2002) (a biography which discusses
204
former President George W. Bushs alcohol and

drug use, including possibly use of cocaine).
Andrew Taylor, Congress Breaks for 5 Weeks, but
Much Work Undone, ABC NEWS (Aug. 4, 2012),
http://abcnews.go.com/Politics/wireStory/congress-breaks-weeks-work-undone-16928566#.
UCCBeE1mQpA (mentioning the inefficiency of
the current Congress in comparison to others
of the past).
Reproduced with permission of the copyright owner. Further reproduction prohibited without
permission.

Out (10) Asf

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Out (10) Asf

Uploaded by

Copyright:

Available Formats

EMPLOYER USE OF FACEBOOK

AND ONLINE SOCIAL NETWORKS

The author currently works for a civil

As technology advances, our use of computers, tablets,

LABOR LAW JOURNAL

I. Facebooks Prevalence in Our

them your family pictures of the good times, and

A. Facebook and Online Social Networks

EMPLOYER USE OF FACEBOOK AND ONLINE SOCIAL NETWORKS TO DISCRIMINATE

been used as a medium for online bullying

B. Facebooks Inception, Basic Uses,

on the iPhone accounted for 10 percent of all

LABOR LAW JOURNAL

provide a faster way to communicate with your

C. Facebooks Privacy Issues:

information. This massive population of users

EMPLOYER USE OF FACEBOOK AND ONLINE SOCIAL NETWORKS TO DISCRIMINATE

their Newsfeeds about each of their friends.83 In

your friends privacy settings allowed for their

LABOR LAW JOURNAL

II. Occupational Hazard: Employers

A. Is Facebook Turning Job Hunting

right? It must have helped that you were extra

EMPLOYER USE OF FACEBOOK AND ONLINE SOCIAL NETWORKS TO DISCRIMINATE

transcript of their personal conversations and

entered the judicial system with unanswered

B. Multiple Third Parties With Conflicting

LABOR LAW JOURNAL

with an interest in this situation, the advertisers.

user information. Facebook has neglected to

EMPLOYER USE OF FACEBOOK AND ONLINE SOCIAL NETWORKS TO DISCRIMINATE

Employers have used this medium to prescreen

C. Who Will Win the War Over Your

LABOR LAW JOURNAL

agent of the company, the employee have one

cally use to discriminate against an applicant or

III.The Legislative Landscape to

A. Current and Proposed Legislation

EMPLOYER USE OF FACEBOOK AND ONLINE SOCIAL NETWORKS TO DISCRIMINATE

from applicants and employees. We will have to

sions which protect applicants for employment

IV. Analysis:The Global Embrace of

LABOR LAW JOURNAL

A.The [Almost] President of the

President, like almost all kids the same age,

EMPLOYER USE OF FACEBOOK AND ONLINE SOCIAL NETWORKS TO DISCRIMINATE

same attractive classmate at a party in college.

password, or even asking the user to log in to their

B. Protect Your [Online] Reputation

Simply put, the less information an individual

Employers have used Facebook to discriminate

LABOR LAW JOURNAL

online. However, this requires an understanding

online reputation, while Facebook continues

was wrongfully terminated. The case later

Make Shopping Decisions, Empathica http://www.

EMPLOYER USE OF FACEBOOK AND ONLINE SOCIAL NETWORKS TO DISCRIMINATE

To Mind Labor Law, Report Finds, Huffington

LABOR LAW JOURNAL

Information we receive about you, Facebook,

such as a friend could theoretically open your

EMPLOYER USE OF FACEBOOK AND ONLINE SOCIAL NETWORKS TO DISCRIMINATE

Social Network Online Protection Act, H.R.