On March 23, Facebook Chief Privacy Officer Erin Egan warned its users in a blog post “to keep their password to themselves, and [Facebook] will do [its] best to protect that right.”  The blog post was prompted by Facebook receiving “a distressing increase in reports of employers or others seeking to gain inappropriate access to people’s Facebook profiles or private information” and “incidents of employers asking prospective or actual employees to reveal their passwords.”  Egan warns employers that it takes its user’s profiles seriously and will “take action to protect” it. 

This action will most likely be in the form of supporting legislation to make it illegal for employers to request this information from employees.  On March 25, Sens. Richard Blumenthal (D-Connecticut) and Chuck Schumer (D-New York) called on the the U.S. Department of Justice and the U.S. Equal Employment Opportunity Commission to analyze whether employer requests for personal information like passwords and usernames is a violation of federal law like the National Labor Relations Act.  Notably, Blumenthal reported to Politico that he is working on a new bill that would ban this practice because it is an “unreasonable invasion of privacy.”

Employers should take note that the Federal Stored Communications Act (FSCA) generally makes it unlawful for employers to intentionally access stored communications such as e-mails and, likely, text messages without an employee’s authorization or in excess of authorization.  Further, requesting passwords could open the door to other potential legal liability.  As Egan noted in her blog post, requesting the information exposes employers to potential discrimination claims if they see on Facebook that someone is a member of a certain protected class and then choose not to hire that person.  For now, employers should refrain from specifically requesting username and password information and should carefully consider any hiring or disciplinary decisions if information gained from an employee’s social media site is being used to form the decision.