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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

Governmental Social Media Policies and the First Amendment

Posted on Mon, Mar 05, 2012 @ 12:23 PM

Joseph S. Burnsby Joseph S. Burns

The Dover, Delaware City Council recently rejected a proposed policy that would have regulated city employees’ activities on social media networks by prohibiting employees from posting:

      (i)  Negative comments based on a person’s race, gender, or other legally protected
           category, and

      (ii) Disparaging comments about co-workers

Both such prohibitions will apply regardless of whether such comments were posted from work or from one’s own home.

Council members concluded that the policy, drafted by the City Manager to protect the city from liability arising from on-line harassment, would have infringed employees’ rights under the First Amendment, an opinion shared by the ACLU, which had contacted City Council,  cautioning that the proposed policy constituted a “clear violation” of First Amendment rights. While various governments across the country have adopted social media policies, courts have consistently found that overly restrictive policies infringe the First Amendment, protecting the rights of governmental employees.

The key, in short, is for a local government to adopt a policy that strikes an appropriate balance between that local government’s legitimate interests and the rights of its employees under the First Amendment.

Tags: Social Media, First Amendment, Governmental Policy