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Social Media Passwords—Fair Game for Potential Employers?

Posted on Mon, Apr 02, 2012 @ 03:43 PM

Joseph BurnsBy Joseph S. Burns

The Virginia State Police (the “VSP”), according to the Virginia ACLU, could be running foul of federal law and the U.S. Constitution by requiring trooper applicants to provide access to their social media accounts during the hiring process. Indeed, the ACLU of Virginia’s Legal Director asked that state police discontinue the practice, described as "shoulder surfing." "Absent a concrete reason to believe that a potential employee is engaged in wrongdoing of which his Facebook account is likely to contain evidence, these communications are simply none of the VSP's business," the Legal Director Stated. "Looking at this information is akin to opening an applicant's mail or listening in on his telephone calls. Such eavesdropping intrudes on the privacy of not only the job applicant, but his online friends and  correspondents."

A spokesperson for the VSP confirmed that it had been contacted by the Virginia ACLU, noting that “we will continue our existing hiring practices,” and that “… our investigative background process is necessary and appropriate for the job our applicants are expected to do and the authority granted to such individuals upon being hired on to the Virginia State Police."

In addition to possibly violating the Fourth Amendment’s protection from unreasonable searches and seizures, along with the First Amendment’s right to freedom of speech, the ACLU cautioned that the VSP might be violating the Stored Communications Act, a federal statute that prohibits one from intentionally accessing stored electronic communications.  This dispute raises important questions about the breadth of pre-employment background checks, and just how far a local government may go in screening new hires.

There is far more to come on this issue.  Check back soon as we follow and provide further developments and updates.

Tags: ACLU, Fourth Amendment, Stored Communications Act, Social Media, First Amendment

The City of Clevelend, "Flash Mobs," and Social Media

Posted on Tue, Mar 13, 2012 @ 09:15 AM

Joseph S. Burnsby Joseph S. Burns

Cleveland’s City Council recently passed an ordinance that would have banned the use of social media websites to organize what are known as “flash mobs.” When that legislation was vetoed by Mayor Frank Jackson, amid criticisms that it was unconstitutional and difficult to enforce, Cleveland’s City Council went back to work, this time crafting a new ordinance that would ban the use of computers and cell phones, rather than specific social media web-sites, to incite riots.

The new legislation, which carries penalties of up to six months in jail and fines of $1,000, is pending approval by Mayor Jackson, who said he will confer with the city’s law department before deciding whether to sign it into effect.

James Hardiman, the Legal Director for the American Civil Liberties Union of Ohio, believes that the new ordinance is flawed and will be challenged by the ACLU. Specifically, Hardiman said that the law, as proposed, may end up punishing those who arrange innocent gatherings that ultimately turn disorderly, and that it may result in the illegal search and seizure of computers and cell phones. The dispute over the new legislation is yet another example of the various ways in which social media continues to affect local governments.

Tags: Flash Mobs, City of Clevelend, Local Government, ACLU, Social Media