The newest way to screen job applicants: a social networker's nightmare.

• Author: Brandenburg, Carly

1. SOCIAL NETWORKING: THINK TWICE A. Social Networks and Their Dangers 1. The Messages Social Networkers Communicate 2. Employers Are Discovering Their Options B. Protecting Social Networkers' Privacy: An Impossible Task? 1. Facebook's Privacy Settings and Their Shortcomings 2. Should a Right to Privacy on Social Networking Sites Be Recognized? 3. The Reasonable Expectation of Privacy Requirement: Being Seen by Some Does Not Mean One Should be Seen by All 4. The Reasonable Expectation of Privacy Requirement: Once Information is Provided to Some, it is Open to All? 5. Interpreting Precedent: The Future, Privacy Concerns, and the Stored Communications Act 6. The Internet: An Amazing and Unruly Medium C. Are Employers Violating Facebook's Terms of Service? II. CONCLUSION: THINKING PRACTICALLY III. APPENDIX A: FACEBOOK'S PRIVACY POLICY IV. APPENDIX B: FACEBOOK'S TERMS OF SERVICE V. APPENDIX C: THE STORED COMMUNICATIONS ACT I. SOCIAL NETWORKING: THINK TWICE

   Web sites designed to promote shared information--like blogs, Facebook, Friendster, Xanga, and MySpace--may provide more than the opportunity to share stories and details of a college student's or graduate's life. To many students and graduates who are "nurtured in open, collegial situations, blogging and personal Internet postings on social networking Internet sites such as MySpace, Facebook, and Friendster ... blur the line between personal and public." (1) Students and graduates today are getting more than they bargain for as they attempt to enter the workforce and realize their blogging and social networking ways can come back to bite them.

   This Note discusses the potential ramifications of using shared information sites, focusing on the Facebook social network and its users. Employers who hire graduating students are steadily discovering that social networking sites allow them to learn more than they ever could from reading an applicant's resume and cover letter. This Note explores some of the legal issues raised when employers conduct social network background checks. Its primary focus is to determine what kinds of privacy expectations, if any, social networkers can anticipate.

   1. Social Networks and Their Dangers

      Social networks on the Internet have become increasingly popular among the general population, but these networking sites are still used most frequently by college students and recent graduates. (2) Most social networks merely require a user to register by providing basic information and a valid email address. Social network users can then post anything they wish on that particular Internet social Web site. Users can post their comments, upload photographs, join and form groups with other networkers, and share their personal information. They can also freely search other users' profiles in order to find and interact with other social networkers throughout the world.

      1. The Messages Social Networkers Communicate

         On Facebook, as is the case with many social networks, users create profiles to share basic information that will allow others to search for, find, and connect with them. However, some users provide information about themselves that "go[es] to the very edges of decency and legality." (3) For instance, a Facebook user can find more than 500 groups and more than 500 events that contain the search term "sex" using a basic Facebook search. (4) Some of the groups that can be located using this search term on Facebook are fairly tame, like the group referring to the popular television series with the title, "Alright ... I admit it ... I'm a Sex in the City addict." On the other hand, the vast majority of Facebook groups containing the word "sex" are far less innocuous with titles like "Casual Sex at IU," "Chances are I'm currently having Sex," "Girls who Love Sex," "I Actually HAVE had Sex on Campus," and other similar groups. (5) By simply clicking on a group title and following its link to the group's members, Facebook users can find friends with similar interests, and employers can find potential hires with frighteningly questionable interests (and the propensity to share their feelings and interests with others). Similar results are yielded when searching for terms like "drugs," "porn," and "alcohol."

         Beyond the groups social networkers can join and create, Facebook users can post anything they wish about themselves on their personal profiles. These profiles often contain pictures and also document Facebook users' interests and activities, political views, sexual orientations and proclivities, relationship status, religious beliefs, and any number of other bits of personal information that employers may find interesting or useful to their decision-making process. (6)

      2. Employers Are Discovering Their Options

         According to a National Association of Colleges and Employers ("NACE") study, approximately one in ten employers report they plan to review potential hires' profiles and information posted on social networks. (7) In addition, employers who admit to reviewing social networkers' profiles as they screen job applicants say the information available on these profiles has at least some influence on their hiring decisions. The NACE study does point out, on the other hand, that many employers say they do not review social networkers' online postings in order to evaluate potential hires; around forty percent of surveyed employers are still undecided regarding whether to use this sort of information as they seek the best candidates for jobs. (8)

         Another study conducted by CareerBuilder.com yielded similar findings. (9) The study included 1,150 hiring managers nationwide, and about twelve percent of those managers surveyed said they have screened job candidates by searching for the potential hires' profiles on social networking sites. Of the employers electing to research candidates on social networking sites, sixty-three percent did not hire a prospective employee based on the information uncovered about the candidate online. (10) Beyond those managers surveyed who admitted to searching for social networkers' information, an additional twenty-six percent of the managers reported they have used Internet search engines like Google to research prospective hires. (11)

         Some sources recommend that employers search social networks and play it safe--why not check a potential candidate out using every resource available before making that critical hire?

         Online social networks provide you with a screening tool for job applicants. It's unlikely that a job applicant would ever attach provocative photos, detailed descriptions of sexual escapades, or a list of hobbies that includes funneling beer and recreational drug use on her resume. But with just a few clicks of the mouse, you can find out all sorts of revealing information about potential candidates. (12) Employers are increasingly realizing that they have a choice when it comes to their hiring decisions. They may be more limited with disciplinary actions once employees are actually hired, and this makes an employer's decision to hire the right people particularly important. (13)

         With the power and responsibilities many new employees can have in the workplace, many employers believe it is important that their hires possess a sense of propriety and an ability to separate their work life and behavior from their personal life. "[N]ew employees have access to a wide range of sensitive materials and information via the rise of the information economy and flattened workplace structures. Given the powerful communication tools in employees' hands, judgment or discretion are increasingly important characteristics for [employees to have]." (14)

   2. Protecting Social Networkers' Privacy: An Impossible Task?

      As employers discover the availability of social networkers' online information, can social network users protect themselves and their posted information? Users of Facebook may harbor the incorrect belief that other students and intended viewers are the only people able to view their profiles. Facebook's privacy settings state you can "control exactly who can see what by including or excluding certain friends or friend lists," as well as "[c]ontrol who can search for you, and how you can be contacted." (15)

      According to Mark Zuckerberg, the man who created Facebook in 2004 while a sophomore student at Harvard University, "[T]he problem Facebook is solving is this one paradox. People want access to all the information around them, but they also want complete control over their own information. Those two things are at odds with each other." (16) Zuckerberg believes that Facebook is able to adequately address this problem because it lets its users activate privacy settings. Users can attempt to prevent strangers from viewing the profiles, pictures, and personal information they post on Facebook by enabling blocking techniques designed to limit outsiders' access to the information. College students, for example, can choose to block all persons not affiliated with their college or university. Those who use Facebook could also enable privacy settings that limit those who can view their profiles to people they accept as their friends or those connected to them through friends (friends of their friends). (17)

      1. Facebook's Privacy Settings and Their Shortcomings

         Despite the available technology that can potentially limit or block unwanted social network users from viewing students' and graduates' Facebook profiles, many Facebook users simply do not activate their privacy settings. Other social networkers enable their privacy settings, but fail to realize that employers nonetheless may be able to gain access to profiles seemingly protected by privacy settings.

         Hiring companies can access potential hires' social networking profiles in a variety of ways. Not long ago, some of the employees now involved in making hiring decisions for their companies were students with their own Facebook profiles. Graduates can...