Editior: In what ways has social media altered the definition of privacy (and the reasonable expectation thereof), and how do you imagine it evolving going forward?
Clark: The prevalence of social media has blurred the line between what information is public and private as well as the line between what is business and personal. Further complicating that already blurry distinction is that employers are now asking for access to applicants’ accounts to review their suitability for positions, in addition to conducting traditional background checks. For example, the Maryland State Department of Corrections recently asked applicants to log in to their social media accounts during interviews so that the interviewer could inspect their Facebook timelines.
This trend is likely waning. Facebook recently asserted that “if you are a Facebook user, you should never have to share your password, let anyone access your account or do anything that might jeopardize the security of your account or violate the privacy of your friends.” In addition, Maryland has become the first state to develop legislation designed to protect employees and applicants from having to disclose their usernames and passwords for electronic accounts, including social media. Furthermore, U.S. Senators Chuck Schumer (NY) and Richard Blumenthal (CT) have asked the U.S. Equal Employment Opportunity Commission and Department of Justice to investigate this trend and determine whether this practice violates the Stored Communication Act or the Computer Fraud and Abuse Act. But until this legislation is enacted, companies are likely to continue to search for ways to get at prospective and current employees’ social media accounts – they contain too rich a repository of information on prospective hires for them to ignore.
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