Comments on: City of Bozeman, MT Stops Requiring Applicants’ to Hand Over Social Media Names and Passwords

By: Laura Bergus

Laura Bergus — Wed, 24 Jun 2009 21:39:51 +0000

@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:

One thing that's important for folks to understand about what we look for is none of the things that the federal constitution lists as protected things, we don't use those.

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.

By: Joshua Auriemma

Joshua Auriemma — Wed, 24 Jun 2009 21:13:19 +0000

@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?

By: Daniel

Daniel — Wed, 24 Jun 2009 18:13:37 +0000

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.