Can a Prospective Employer Request Facebook Login Information?

I’ve been remiss in posting on the recent stories about potential employers requesting social networking login information in job interviews, but I see that noted cybercrime expert Orin Kerr, a law professor at George Washington University, was on C-SPAN’s Washington Journal this morning, and his comments in the first few minutes of this recording basically sum up what I had to say on this issue: it’s unclear, but such activity may be prohibited by federal law. I just have one additional point to add: although the specific policy result here may seem obvious, the larger question of when use of a dodgily-obtained password violates unauthorized access statutes is actually a much more difficult one.

The civil case Orin refers to in the recording is Pietrylo v. Hillstone Restaurant Group, No. 06-5754 (FSH), 2009 WL 3128420, 2009 U.S. Dist. LEXIS 88702 (D.N.J. Sept. 25, 2009). In Pietrylo, the District of New Jersey upheld a jury verdict against the defendant employer under the Stored Communications Act, 18 U.S.C. § 2701, which prohibits any person from “intentionally access[ing] without authorization a facility through which an electronic communication service is provided . . . and thereby obtain[ing], alter[ing], or prevent[ing] authorized access to a wire or electronic communication while it is in electronic storage in such system.” Pietrylo and other employees participated in a private chat group on MySpace in which they were critical of Hillstone management. One of the managers requested that one of the participants give him her password, which she did, on the reasonable supposition that she “felt that [she] probably would have gotten in trouble” if she refused.

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Humor and the Law, Part Two

In honor of April Fools’ Day, the editors of the blog asked the faculty of the Law School to share their favorite examples of legal humor. Every day we will share a different faculty member’s submission.  Today’s submission is from Professor Bruce Boyden.

 

A new lawyer is trying his first criminal case, representing a man accused of biting another man’s ear off in a bar fight.  Eager to show off his trial skills, he begins to cross-examine the prosecution’s first witness: the bartender on the night of the fight.

Q. You were tending bar that night, isn’t that correct?

A. Yes I was.

Q. And the bar was quite crowded that night, wasn’t it?

A. Yes.

Q. There were quite a lot of people standing in front of the bar, ordering drinks, isn’t that right?

A. Yes, that’s right.

Q. And the defendant was standing 10 to 20 feet away from the bar when the fight started, correct?

A. Yes he was.

Q. So there were several people between you and him?

A. Yes, there were.

Q. And you were quite busy serving drinks to those people, weren’t you?

A. Yes I was.

Q. So that you weren’t looking at the defendant when the fight started, were you?

A. No I wasn’t.

Q. And in fact, you couldn’t see the defendant when the fight started, could you?

A. No, I don’t think I could.

Q. Therefore, isn’t it true that you did not actually see the defendant bite the ear of the other man?

A. Yeah, that’s right. I didn’t see him bite the ear off.

Proud of his cross-examining prowess, the young lawyer smiled at the jury and asked one more question.

Q. So why did you testify that the defendant bit the man’s ear off?

A. Because I saw him spit it out a second later.

 

 

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The Conservative Turn in Copyright Politics

David Brooks had an interesting column earlier this week in which he asked, “Why aren’t there more liberals in America?” According to Gallup Poll numbers, about 41% of Americans self-identify as conservative, versus 36% moderate and 21% liberal. This strikes Brooks as a bit of a puzzle, since the financial crisis and the economic downturn would seem to support liberal beliefs in some ways. Brooks’s answer: “Americans may agree with liberal diagnoses, but they don’t trust the instrument the Democrats use to solve problems. They don’t trust the federal government. A few decades ago they did, but now they don’t. Roughly 10 percent of Americans trust government to do the right thing most of the time, according to an October New York Times, CBS News poll.”

Brooks goes on to speculate about the basis for that distrust: “Why don’t Americans trust their government? It’s not because they dislike individual programs like Medicare. It’s more likely because they think the whole system is rigged. Or to put it in the economists’ language, they believe the government has been captured by rent-seekers.”

This all sounds very familiar. It’s essentially the basis of the current critique of copyright law: that Congress has become beholden to a few stakeholders, and as a result modern copyright law has become unmoored from any legitimate purpose and now simply apportions rents to favored dinosaur industries.

But even that description of the situation is not dark enough.

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