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Blumenthal Wants Ban on Employer Password Demands

FAIRFIELD COUNTY, Conn. – In light of a new trend by some employers demanding job applicants provide their user names and passwords for email and social networking websites, like Facebook, U.S. Sen. Richard Blumenthal is calling for a ban on the practice to protect personal privacy.

"I am alarmed and outraged by rapidly and widely spreading employer practices seeking access to Facebook passwords or confidential information on other social networks,” said Blumenthal, a Greenwich resident, in a release posted on his website Sunday. “With few exceptions, employers do not have the need or the right to demand access to applicants’ private, password-protected information.”

Blumenthal, along with U.S. Sen. Charles Schumer (D-NY), called on the U.S. Equal Employment Opportunity Commission and the U.S. Department of Justice to launch a federal investigation into the issue. According to recent reports, certain employers across the country are demanding the information from job applicants as part of the interview process, which includes photos and personal messages that would otherwise be private.

According to recent reports, employers are beginning to ask prospective employees for their Facebook passwords as part of the interview process before they are hired. In one case, the Associated Press reported a statistician was asked for his Facebook user name and password so the employer could review private components of his profile as part of the interview process.

Facebook came out against the practice Friday in a post on its website, arguing it was a violation of Facebook’s Statement of Rights and Responsibilities to share or solicit a Facebook password. The site noted the practice “undermines the privacy expectation and the security of both the user and the user’s friends” and could expose employers to lawsuits by exposing themselves to claims of discrimination if the employer discovers the individual is a member of a protected group and then does not hire that person.

Blumenthal and Schumer announced they are drafting legislation to fill any gaps in federal law to allow employers to require personal login information from prospective employees to be considered for a job. The senators noted they are seeking additional legal opinions, from both the Equal Opportunity Commission and Department of Justice to determine what protections currently exist and what additional protections are necessary.

Here is a copy of the letters sent to the U.S. Department of Justice and the U.S. Equal Employment Opportunity Commission (EEOC) by Blumenthal and Schumer:

Dear Attorney General Holder:

We write concerning reports in the media that some employers are requiring job applicants to provide their usernames and passwords to social networking sites like Facebook as part of the hiring process.

We urge the DOJ to investigate whether this practice violates the Stored Communication Act or the Computer Fraud and Abuse Act. The SCA prohibits intentional access to electronic information without authorization or intentionally exceeding that authorization, 18 U.S.C. § 2701, and the CFAA prohibits intentional access to a computer without authorization to obtain information, 18 U.S.C. § 1030(a)(2)(C).  Requiring applicants to provide login credentials to secure social media websites and then using those credentials to access private information stored on those sites may be unduly coercive and therefore constitute unauthorized access under both SCA and the CFAA.

Two courts have found that when supervisors request employee login credentials, and access otherwise private information with those credentials, that those supervisors may be subject to civil liability under the SCA. See Pietrylo v. Hillstone Restaurant Group , 2009 WL 3128420 (D.N.J. 2009); Konop v. Hawaiian Airlines, Inc. , 302 F.3d 868 (9th Cir. 2002).  Although these cases involved current employees, the courts’ reasoning does not clearly distinguish between employees and applicants. Given Facebook terms of service and the civil case law, we strongly urge the Department to investigate and issue a legal opinion as to whether requesting and using prospective employees’ social network passwords violates current federal law.

Dear EEOC Chair Berrien,

We write concerning reports in the media that some employers are requiring job applicants to provide their usernames and passwords to social networking sites like Facebook as part of the hiring process. By requiring applicants to provide login credentials to social networking and email sites, employers will have access to private, protected information that may be impermissible to consider when making hiring decisions. We are concerned that this information may be used to unlawfully discriminate against otherwise qualified applicants.

Facebook and other social networks allow users to control what information they expose to the public, but potential employers using login credentials can bypass these privacy protections. This allows employers to access private information, including personal communications, religious views, national origin, family history, gender, marital status, and age. If employers asked for some of this information directly, it would violate federal anti-discrimination law. We are concerned that collecting this sensitive information under the guise of a background check may simply be a pretext for discrimination.

We strongly urge the Commission to investigate and issue a legal opinion as to whether requesting and using prospective employees’ social network passwords violate current federal law.

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