Senators Richard Blumenthal (D-CT) and Charles E. Schumer (D-NY) have sent requests to the Department of Justice (DOJ) and Equal Employment Opportunity Commission (EEOC) asking them to determine whether the emerging employer practice of requesting job applicants for their social medial login credentials for background check purposes violates federal law. According to Sens. Blumenthal and Schumer, requesting an applicant’s username and password for social media sites such as Facebook is a “disturbing trend” that potentially violates a number of privacy and employment laws.
In the letter to the DOJ the senators write: “[g]iven 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.” Specifically, the senators ask the DOJ investigate whether requesting this information:
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.
The letter also notes that two federal courts have determined that supervisors may be subject to civil liability under the SCA by accessing otherwise private employee information with requested login credentials.
The senators sent a separate letter to the EEOC asking the agency to investigate whether requesting applicant login information violates employment discrimination statutes. According to the senators, job applicants and employees often post online personal information such as 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.”
The lawmakers say they intend to introduce legislation to curb this practice.