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Editorial: Get Out of My Facebook; Proposal to Protect Job Applicants

The ability of the law to anticipate problems created by technological change is pretty limited, in part because human ingenuity invariably figures out how to employ technology in ways that were not intended.

The Vermont Legislature is now trying to figure out how — or even whether — to deal with one such unforeseen consequence of technological advance. Sen. Richard Sears, D-Bennington, chairman of the Senate Judiciary Committee, has proposed legislation that would bar employers from requiring employees or job applicants to provide access to their social networking service accounts when access is not available to the general public, and forbid retaliation if they refuse to do so.

We are of two minds on this, as on so many other things in life. On one hand, we’re inclined to think that people foolish enough to post anything problematic on a social networking site are probably getting what they deserve if their lack of discretion disqualifies them from a job.

On further reflection, though, we can see the point. First of all, the demand by employers for access to social media accounts has “exploded” over the past five years, according to Sen. Philip Baruth, D-Chittenden. And as Sears told the Senate Economic Development Committee: “It seemed to me this was like saying when you come in for your interview, please bring your diary with you, and we’re going to read your diary.”

The analogy is inexact, but conveys an element of truth. Diaries are normally kept primarily for the author’s use, not to be shared widely with family and friends in real time, and they often contain an intimate record of one’s innermost thoughts. Facebook postings and the like are intended for dissemination to some defined group, and unlike diaries, they cannot be burned or otherwise effaced. Thus they seem to occupy a no-man’s-land between the public and the private realms, one that lays claim to a certain amount of legal protection. And since social media have become ubiquitous, they have altered the very idea of privacy itself. Thus employers feel entitled to demand access when they would not think of asking to read a diary kept by an employee or a job applicant.

Another consideration is that employer access to social media accounts may impinge on the privacy interests of third parties who are associated with an employee or an applicant, but who have no recourse.

If the bill is enacted, we suspect that it will contain some employer exemptions. For instance, it might make good sense to exempt the public safety department when it is hiring state troopers. According to VTDigger.org, Public Safety Commissioner Keith Flynn told lawmakers recently that applicants for the state police are now required to allow access to their social media accounts. The rationale makes sense: Troopers are armed agents of the state and exercise a lot of power in their interactions with the public; the department wants to be able to identify applicants who display radically bad judgment; or racial or other bias personally or in their affiliations; or who may be suffering from personal problems that would put the public at risk if they were hired.

Yes, this exemption might be subject to abuse, but on balance it appears warranted. Other categories of employers will probably come forward seeking a similar exemption, but a good argument can be made that police fulfill a unique role and may be required to yield some privacy in society’s best interests.

Anyway, Sears deserves credit for bringing up the subject, even if the only effect is ultimately a cautionary one: Be careful out there in cyberspace.