Backlash Over Employer “Shoulder Surfing”

Senator Moves to Ban “Shoulder Surfing” Job Applicants

After reports over trends that employers were requiring job applicants to provide their Facebook login or use Facebook while they watched (aka “Shoulder Surfing”), Senator Richard Blumenthal (D-CT) has indicated that he will soon offer legislation banning the practice.  Civil liberties advocates have denounced the practice an invasion of privacy, while Facebook’s Chief Privacy Officer has expressed Facebook’s displeasure with the practice which “undermines the privacy expectations and the security of both the user and the user’s friends”.

Blumenthal and Senator Chuck Schumer (D-NY) have also asked Attorney General Holder to investigate the practice.

We urge the DOJ to investigate whether this practice violates the Stored Communication Act or the Computer Fraud and Abuse Act. The SCA prohibits intentional access to electronic information without authorization or intentionally exceeding that authorization, 18 U.S.C. § 2701, and the CFAA prohibits intentional access to a computer without authorization to obtain information, 18 U.S.C. § 1030(a)(2)(C).  Requiring applicants to provide login credentials to secure social media websites and then using those credentials to access private information stored on those sites may be unduly coercive and therefore constitute unauthorized access under both SCA and the CFAA.

The Senators also asked for the Equal Employment Opportunity Commission to investigate whether the practice

allows employers to access private information, including personal communications, religious views, national origin, family history, gender, marital status, and age. If employers asked for some of this information directly, it would violate federal anti-discrimination law. We are concerned that collecting this sensitive information under the guise of a background check may simply be a pretext for discrimination.

Privacy pragmatist Kashmir Hill noted, “Good luck, job seekers. And along with polishing your resume, dry-cleaning your interview suit, and researching the companies you’re interviewing with, do pay a visit to your Facebook privacy settings page.”

More InfoSenator: Ban bosses from asking for Facebook passwords, Politico; What Employers Are Thinking When They Look at your Facebook Page, The Not So Private Parts;  Trend Watch: Employers Asking Candidates For Facebook Passwords, PC Magazine; Facebook speaks out against employers asking for passwords, CNN; ACLU Page on Issue.