Turk asked me the other day how outraged I was over potential employers asking job applicants for the Facebook password. I think I surprised him when I responded that I agreed with the Deputy Sheriff, Rusty Thomas, who explained:
And since 2006, the McLean County, Ill., sheriff’s office has been one of several Illinois sheriff’s departments that ask applicants to sign into social media sites to be screened.
Chief Deputy Rusty Thomas defended the practice, saying applicants have a right to refuse. But no one has ever done so. Thomas said that “speaks well of the people we have apply.”
Perhaps it speaks to the litmus test to make sure no one is hired who has either the balls or brains to say no, but the point remains. Just say no.
This has more to do with my view that a job is not a right than it does about the intrusiveness of the request. Whether a prospective employer asked me for my password or an impromptu colonoscopy, my response would be uncivil. They can ask. I can decline, and I would.
The reaction elsewhere is that, “but I need a job.” Ah, the rationalization that explains the downward spiral. We make choices about whether to get on our knees or not. They happen in all aspects of life, and we are presented with the option of doing things we would prefer not to do or suffering the consequences of our refusal. This is nothing new.
You made me love you. I didn’t want to do it. I didn’t want to do it.
— Al Jolson
Yet, it scares me when I find my view to be to the right of Orin Kerr’s.
“It’s akin to requiring someone’s house keys,” said Orin Kerr, a George Washington University law professor and former federal prosecutor who calls it “an egregious privacy violation.”
What makes this an “egregious privacy violation” is left unsaid. It’s totally inappropriate, but to call it a violation means it violates something. What does it violate? The best answer so far is the Facebook terms of service, but then nobody reads the TOS so this is a disingenuous argument. When it serves out interest, we argue that nobody has a clue what the TOS say since we all just click-through the crap. We can’t suddenly claim our refusal is due to our slavish devotion to the terms of service.
There’s also a suggestion that it violates the Computer Fraud and Abuse Act, but that’s too far a stretch for anyone to take seriously. When you hand over your password, you implicitly authorize its use.
This isn’t to suggest that I think this is a good trend, or an acceptable practice. It’s completely inappropriate, just as an employer asking an applicant to drop his trousers (or for the feminist readers, open her blouse and unhook her brassiere). It’s disgustingly intrusive.
So draw a line and say there are things you won’t do for a job.
Cries to regulate the employment interview process to prohibit, whether for public employers or all, a demand for website passwords are being heard across the interwebz. Libertarians have suddenly come to appreciate the joys of regulation. But this is a mere substitute for personal accountability. People may need jobs, but at what price? Nobody can coerce you to give up your password unless you let him. If an employer wants your password before giving you a job, what else will be demanded of you once you get it?
In lieu of regulation, there’s always the top ten excuses why you’re not allowed to give up your password. Of course, this is remarkably unpersuasive, since the potential employer isn’t obliged to care how good your excuse is when you refuse his demand. So what’s an applicant to do?
Here’s a thought: refuse to give up your personal autonomy. Refuse to agree to something you find disagreeable. Show some guts and tell the person that you will neither hand over your password nor bend over for the colonoscopy.
Or you can just whine about how you need a job and it’s all so unfair. But if you do, stop complaining about why others keep demanding more from you that you really would prefer not to give. That’s how downward spirals work, and they work because people like you lack the fortitude to say no.
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I agree. I’m going to post a link to this on my Facebook page, Twitter feed, and my blog. Too many times, people give in to intrusive demands by employers (and others) because they think it will gain them favor. They need to read your blog post and grow a spine.
On your Facebook page? Cool! Can I get your password?
If you need one, Scott, I’ll give you mine. I don’t use it much.
Much obliged, but I don’t really have any plans to start with Facebook. Or Myspace. Not enough juice on my 9600 baud dial up modem to make it worth the effort.
How about deleting your facebook page? Just don’t post your personal life on the internet. If you’re looking for a job, there’s other things you shouldn’t do too, as in drugs (might be tested), comitting felonies (a disqualifier), etc. You can have all the private opinions you want between you and your friends and family, but if you post disagreeable material online for the world (and your employer) to see, well, you’re asking for trouble. Also not advisable to take out a full-page ad in the NYT with photos of yourself in comprimising positions and obscene rants, so how is Facebook any different? Just takes a little more digging to find it.
A full-page ad in the NYT costs a fortune. Talk about adding insult to injury.
So maybe you shouldn’t use e-mail, either, because if they can ask to see your private posts in your Facebook account, why not your e-mail, too?
If you make a phone call on a city street, you may have little expectation of privacy from those who can overhear your end of the conversation. But should your potential boss demand you let him into a phonebooth with you to hear what you’re telling your friends? I don’t think so.
Asking to look at a job applicant’s private posts and conduct is actually great litmus test – I wouldn’t want to work for any firm who was that intrusive.
Getting national security clearance for a defense project is one thing. But a regular job? They can go to hell.
And the litmus test could work both ways, anybody who agreed is too gutless or stupid to have working for you.
Sen. Blumenthal is writing a bill to ban such requests by employers. Could be an interesting privacy litmus test for Congress – will Congress respect privacy or cave in to businesses? Gee, I wonder…
Granted that there are some people out there who might just not care whether potential employers flip through their relatives’ cat pictures on Facebook, your commentary discusses a block of people who are presumably both eager applicants for the job, but who would also be appalled and intimidated by an interviewer’s request to surrender the password.
Why do you think that this block of applicants you’re imagining lack the fortitude to say ‘no’?
I’m asking because I just read your post on the unreasonable lawyer standard, and you’ve got a really nuanced discussion of why lawyers can’t be assumed to be rational actors, but this post doesn’t bring the same nuance to understanding the situation of prospective employees.
Because they didn’t say “no”? There are some lines we have to draw for ourselves. This is one of them. The whole point of drawing lines is that we don’t go below them.
Well, sure, clearly they lack the fortitude to say no if in fact they assented to handing over their password.
I agree with you that unless (as one of your other commenters mentions) you’re applying for a position that requires something akin to a security clearance that prospective applicants who are tagged with a request to hand over access to their Facebook, OKcupid, or other social networking sites should tell the interviewer to go climb a tree. That’s a line we should draw.
So my question is — and it’s a tautology to say that most people are normal — why would otherwise normal applicants hand over their password? What do you think is going through the head of a person who does that, who doesn’t draw that line? What stands behind a decision like that?
I’m pressing the question because there’s fifty years of strong research in psychology and allied social sciences that shows that ethical decisionmaking is highly situational, and since we both agree that requests to drop trou on your social media profiles is inappropriate, and we both agree that there’s a risk involved — namely that if enough people cave to those requests, it sets an expectation as to what interviewers can ask for, I think it’s worth recognizing that it would be a mistake to assume that all the actors in this hypothetical hiring situation are rational and detached decisionmakers.
What happens if we take some of the assumptions in, say, prospect theory and apply them to the situation of the job applicant.
They want a job. No mystery there.
I’m not suggesting they’re rational actors. I’m suggesting that they need to put on their big boy pants and start behaving like rational actors rather than whining about it afterward.
The post by Nathan Burney that you praise says the following about clients, that
” Maybe you’re a defense attorney, trying to help a client decide whether to take a plea or go to trial. You’re convinced that the odds of success at trial are great, and your client agrees, but he still wants to accept a fairly harsh plea. Or maybe it’s the other way around — your client wants to roll the dice with a jury, even though the case is a slam dunk and there’s a sweet offer on the table. Either way, your client isn’t being rational, and you can’t figure out why. If you don’t do something, he’s going to screw himself.”
And he goes on to discuss why this is using behavioral economics as his framework. Behavioral economists might tell you to look at the framing of the decision, the relative power of the participants, and the perceived stakes.
In short, when people are facing punishment, loss of social class or status, public humiliation — those are powerfully affecting risks that get in the way of having a detached outlook.
Burney suggests you look at why a client might act the way he or she does, that you try and understand the stakes as the client perceives them.
You say people need to put on their big-boy rational actor pants: well, in this case, there’s competing demands at work as to what is adult behavior. Certainly in the United States today having meaningful employment and being able to meet one’s financial obligations is one of those criteria. Yes, people who give prospective employers permission to look at their social media profiles want jobs. Badly. For a lot of applicants, the outlook appears pretty bad.
So how is it that applicants can find themselves faced by the apparent choice between two adult obligations? How is it that prospective applicants for entry level positions or retraining professionals have come to have a different view of the hiring situation and the economy than you have, such that they would be willing to release their passwords or submit to ridiculous infantilizing measures like Unicru testing?
I don’t want to bore you on your own blog, please let me know if this bores you.
As a PS: about two years ago, you wrote about Jason Vassell, a student at UMass who got dinged for assault. — that’s wrapped up now. He ended up with pretrial probation that has already run its course, the charges were dropped, he admitted no culpability. Thanks for posting about it way back when.
Brevity has its distinct virtue on a blog. The difference between what Nathan is talking about and this is that criminal defense lawyers deal with individual defendants. We can address them on a personal level. This deals with an unknown group with whom we have no direct contact.
As for the competing adult obligations, they can also become prostitutes, which will earn them money but at a price. Therein lies the line of demarcation for some. A job is fine. At what price is the issue that defines the limit of an adult obligation.
Your points are interesting, but they would be substantially more interesting and useful if they were shorter, since few will read them given their length and tangential relation to the post.