Are Employers Who Ask Potential Employees To Turn Over Their Facebook Login and Passwords Breaking the Law?

Yesterday you may have read some employers are requesting potential employees to turn over their Facebook login and password information. Today the ABA Journal is reporting that two states are considering banning this practice for public employers.

Well, what if I told you this practice might already be illegal under the Computer Fraud and Abuse Act, 18 USC § 1030?

The Computer Fraud and Abuse Act states that anyone who:

(2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains–…(C) information from any protected computer if the conduct involved an interstate or foreign communication; …shall be punished as provided in subsection (c) of this section.

The term “exceeds authorized access” means: “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accessor is not entitled so to obtain or alter.” 18 U.S.C. § 1030(e)(6) (2008).

According to Facebook’s Terms of Service, anyone who uses Facebook must agree that:

You will not provide any false personal information on Facebook, or create an account for anyone other than yourself without permission.

You will not share your password, (or in the case of developers, your secret key), let anyone else access your account, or do anything else that might jeopardize the security of your account.

You will not collect users’ content or information, or otherwise access Facebook, using automated means (such as harvesting bots, robots, spiders, or scrapers) without our permission.

You will not solicit login information or access an account belonging to someone else.

You will not facilitate or encourage any violations of this Statement.

Does this mean that a potential employer who demands your Facebook login is actually breaking the law? I think a person could argue that they are exceeding their authorization by violating Facebook’s Terms of Services. If that’s the case, they might also be encouraging you to break the law.

Keep in mind that Lori Drew was charged and convicted under the Computer Fraud and Abuse Act for violating MySpace’s Terms of Service in connection with Megan Meier’s suicide. (though the conviction was overturned).

4 Responses to Are Employers Who Ask Potential Employees To Turn Over Their Facebook Login and Passwords Breaking the Law?

  1. did you really end a legal post with a tupac video? this is my new favorite legal blog.

  2. notmyrealname says:

    I’ve got another question about this kind of behavior on the part of employers. One’s religion and sexual preference are often part of their facebook profile. So isn’t the employer asking the employee to disclose their facebook profile asking after that person’s religion, which I understand is pretty clearly verboten?

    • I think an employer who engages in this practice runs the risk of getting sued if they turn down an applicant after getting their Facebook credentials. The argument would be that “the employer learned my age, religion, sexual orientation, etc. and that’s why they didn’t hire me.”

      For that reason, in addition to the fact it might be illegal, that’s why this is a very stupid practice for any employer…

  3. I am a nurse and I was hired, as a nurse, at an inpatient substance abuse rehabilitation center in New York State. Before you start work you must have a physical and a drug test and I was told to tell the nurse’s aid, who took my urine for a drug screening test, every medication that I was on. I have been on the Methadone Maintenance Treatment Program for 7 years, on a low and effective blocking dose. I also take one anti-depressant and have medication, PRN, for anxiety. These medications are prescribed legally by my physician. I did disclose this information to both the nurse and the physician assistant, who performed the physical. The following week I called for my schedule and I was told that the job offer was rescinded. When I asked why I was told that another candidate came in that was more qualified. I later found out that they were still in search of nurses. The director of nursing would not speak to me. I had already filled out all of the payroll paperwork, my references were checked and I had been offered the position. This was clearly an act of discrimination. If you disclose information, on your application, that you think might lower the chances of you being hired I can tell you this; the company WILL disqualify you. The less you tell, the better off you are. I was told this; in NY State you can’t drug test an employee for Methadone. I can tell you that many employers do not follow the law and they discriminate. This particular rehab. is not a place that I would EVER refer anyone to. The name of the company is Cornerstone of Rhinebeck, N.Y. If they feel this way about someone in recovery how do they really feel about the patients that walk in the door every day?

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