The latest controversy over whether employers can request the passwords to employees' (or potential employees') Facebook accounts is yet another example of how our legal system has not kept up with advances in technology. This practice is just plain wrong -- on many levels.
George Washington University law professor and former prosecutor Orin Kerr says the question is "akin to requiring someone's house keys" and "an egregious privacy violation."
As our culture developed, a tradition of boundaries between work life and social life evolved, and gradually laws were put in place to protect those boundaries. Facebook, Twitter, My-Space and other such websites have been tagged "social" media and as such should be kept separate from our professional lives. Employers cannot legally question us about marital status, age, sexual preferences or religion. These laws protect the employee's privacy, and protect employers from accusations of discrimination.
Allowing employers into our Facebook pages gives them access to all of this personal information and more. It gives access to the private photos and thoughts of our friends and family members. By opening that door, we are betraying the confidences and trust of those who are closest to us.
Employers risk exposing themselves to allowing personal biases to influence hiring decisions, and are putting their organizations in jeopardy of being sued for discrimination. Making access to a personal social media account a condition of employment amounts to coercion. Additionally, the employer could be in violation of computer fraud laws regarding accessing electronic information without authorization.
The Department of Justice regards it a federal crime to enter a social networking site in violation of the site's terms of service, and Facebook states giving out Facebook log-in information is just that -- a violation of its terms of service. However, the Department of Justice has also said it will not prosecute such violations.
Sens. Charles Schumer, D-N.Y., and Richard Blumenthal, D-Conn., and the American Civil Liberties Union are on the same page regarding the issue, calling it an "unreasonable," "frightening and illegal" invasion of privacy. Schumer and Blumenthal have called for a federal investigation into the practice and are drafting legislation to outlaw it.
It's time our legal system began to anticipate the issues new technologies bring to test societal norms. Our personal boundaries are being challenged in many ways: robo-dialing invades our space with unwanted phone calls; we submit ourselves to body scans at airports; and potential employers can simply Google our names.
Years ago, there was a respect for privacy that protected personal boundaries. But with the easy access to personal space allowed by technology, civility and respect are not enough -- we need the protection of the law.
Jeffrey Freedman is senior partner at Jeffrey Freedman Attorneys at Law.