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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New Law Review Comments Cover Social Networking, Wind Farms, Deceptive Trade Practices Act, Open Records Law, and Purchase Money Security Interests

Now available online, the recently published student comments in the Marquette Law Review cover a wide range of topics.  They include Nathan Petrashek’s comment on the impact of online social networking on Fourth Amendment privacy.  Since social networking sites like Facebook and MySpace attract both criminals (e.g., sexual predators, identity thieves) and the police who investigate them, the question whether users have a reasonable expectation of privacy in their voluntary disclosures under the well-established Katz test is poised to become a significant issue in the near future.  Petrashek relies on Fourth Amendment doctrine, as well as the First Amendment right of association and good public policy, to argue that user content should be shielded from police scrutiny in the absence of a warrant.

Meanwhile, Marvin Bynum’s Golden Quill-winning comment addresses the feasibility of establishing offshore wind farms in Lakes Michigan and Superior. 

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NASA v. Nelson and Public Employee Informational Privacy

4United States Supreme Court 112904 Yesterday, the United States Supreme Court heard oral argument in the public employee informational privacy case of NASA v. Nelson (oral tanscript here). Rather than reinvent the wheel on this one, I want to direct reader’s to Prof. Lior Strahilevitz’s (Chicago Law) excellent analysis of the oral argument on PrawfsBlawg.

Here are some highlights: 

Having read the transcript, it seems likely that the Court will reverse the Ninth Circuit and hold that the government may ask open-ended questions as part of a security clearance process for government employees. Beyond that, though, very little is clear . . . .

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