City of Bozeman, MT Stops Requiring Applicants’ to Hand Over Social Media Names and Passwords
The City of Bozeman, Montana, took some well-deserved heat mid-June for asking that applicants to some city positions disclose usernames and passwords of their social media accounts.
At noon on Friday, June 19, the City of Bozeman stopped asking for usernames and passwords [pdf] while the city manager and commission look into that policy and “other interesting things” in the city’s hiring manual.
While I didn’t find the text of the supposed requirement in any of Bozeman’s extensive job application materials, City Attorney Greg Sullivan has admitted to the practice and assured everyone the city isn’t looking at information that might be protected by the Constitution. Commentary on the issue includes the expected, “If you don’t want to tell all, don’t work for them!” but also raises more serious concerns of privacy in the digital age. As Kevin Bankston, an attorney for the Electronic Frontier Foundation, told a Montana CBS affiliate:
“Essentially they’re conditioning your application for employment on your waiving your First Amendment rights … and risking the security of your information by requiring you to share your password with them… Where does it stop? How about a photocopy of your diary?”
The obvious diary analogy aside, Facebook itself has stepped in to point out how this practice violates its terms of use. Others suggest such unchecked account sharing would violate the Computer Fraud and Abuse Act. (Thanks to Hypercrit for compiling so much about this issue in a single post.)
Whether or not this questionable practice has direct constitutional or criminal implications, it’s interesting to note that Bozeman goes so far as to ask applicants to a ditch-digging position to explain their public service philosophy [pdf]. The coup de grâce is perhaps the requirement that you put your name directly on a “confidential” survey asking your age, sex, race, and disability status [pdf], which is of course part of the same document as the employment application. Care to review that assertion of not looking at constitutionally protected stuff, Mr. Sullivan?
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Not sure what Constitutionally protected stuff you’re talking about. Most of the Bill of Rights (which is probably the bit you’re referring to) is restricting what Congress can or can’t do, not so much city governments. There are laws protecting our privacy, but not in the Constitution.
However, the requirement was definitely breaking Facebook’s Terms of Service (specifically 4.6, which states: “You will not share your password, let anyone else access your account, or do anything else that might jeopardize the security of your account.”)
In fact, according to Newsy.com’s video about the issue, Facebook has stated they would be contacting the city about the breach of policy. What a day when Facebook tells the government what it can’t do.
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Joshua Auriemma Reply:
June 24th, 2009 at 2:13 pm
@Daniel, I won’t represent that I’m exceptional at Con Law, but assuming that there is a zone of privacy granted through penumbras or whatever privacy theory you want to adopt, isn’t implied preemption applicable?
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Laura Bergus Reply:
June 24th, 2009 at 2:39 pm
@Daniel, I’ve only had Con Law I, so I’m sure Josh is more on point.
But for what it’s worth: the Bozeman City Atty. said:
in this article. I think you’re right, the state entity would be more concerned with the *state* constitution. Article II, Sections 4-7 of Montana’s constitution prohibit discrimination on the basis of “race, color, sex, culture, social origin or condition, or political or religious ideas,” all things that are often readily apparent in someone’s Facebook profile, for instance. Collecting identifiable information on these factors can certainly be a liability for a state entity if a spurned applicant believes such employment discrimination occurred.
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