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Can Employers Legally Request Facebook Passwords?

Senator Charles Schumer (D-NY) and Senator Richard Blumenthal (D-CT) haverequestedthat the Equal Employment Opportunity Commission (EEOC) and the Department of Justice investigate recent reports of employers requiring that applicants turn over passwords to private e-mail accounts and to social media sites such as Facebook. In a letter to Attorney General Eric Holder, the Senators ask the government to investigate whether the practice is legal under federal law.

The Senators asked Holder to consider the issue in light of recent court cases, such asPietrylo v. Hillstone Restaurant Group (U.S. District Court for the District of New Jersey, 2009). In that case, the court ruled that a supervisor could be liable for privacy violations for pressuring employees to give up passwords to social media sites. Because this case involved current employees, the Senators requested that Holder determine whether it would apply to applicants as well.

Holder was also asked to consider the practice in light of the Stored Communications Act or the Computer Fraud and Abuse Act. These laws prohibit access to electronic information and computer networks without authorization.

In their request to the EEOC, the Senators asked the agency to determine whether access to the information contained in social media accounts could violate discrimination laws. Such access could unwittingly give an employer information about an applicant’s religion, national origin, disability, or marital status, for example.

In a statement released along with his request, Sen. Schumer noted: “Employers have no right to ask job applicants for their house keys or to read their diaries—why should they be able to ask them for their Facebook passwords and gain unwarranted access to a trove of private information about what we like, what messages we send to people, or who we are friends with?”

The request was in response to recent incidents, including those compiled in a recent Associated Pressarticle, of public agencies and private companies requiring applicants to relinquish Facebook passwords during job interviews. In other reports, HR officials have required that applicants “friend” investigators conducting background screening.

These incidents have led to apostby Facebook’s chief privacy officer, warning users that they should never give out their passwords and advising employers to refrain from the practice. State lawmakers have also taken action, with bills introduced inMarylandandIllinoisthat would make it illegal for public agencies to request social media passwords.