By Elizabeth Wong, Associate Director

With the rise of social media and the increased sharing of our lives on the internet, prospective employees are being warned to be careful about what information they make public when posting photos and comments on the web.  As a result, many people are adjusting their privacy settings, closing some online accounts, and de-tagging themselves from certain potentially incriminating photos and comments.
But such simple measures to keep one’s digital life private may not be enough these days, as employers have begun to employ “shoulder surfing” to learn about applicants’ personal lives.
Broadly speaking, shoulder surfing is when someone through direct observation, such as looking over someone else’s shoulder, obtains information from a computer screen.   This could be anything from personal information contained in private communications to account passwords.
In the case of the Maryland Department of Corrections, interviewers sit current and prospective employees down at a computer, ask them to log into their social media and/or email accounts, and then direct them to show their private messages, photos, and contacts.  The practice has been criticized by our ACLU colleagues in Maryland, who are currently pushing for state legislation prohibiting employers from engaging in this activity.
It’s no surprise that employers are running social media background checks.  In fact, there are businesses built on offering such a service.  However, following a digital trail of breadcrumbs left in publicly accessible places on the internet is different from demanding that applicants log into their active accounts to access information they have purposely kept hidden from the public.  When computer users limit access to photos or other personal information to their family and close friends on a site like Facebook, or send private messages to colleagues on Twitter, they didn’t invite the public in on the conversation.  And they certainly didn’t invite their employers to snoop.
In the digital world, there is a constant struggle between being socially active and maintaining one’s privacy.  But certainly a balance can be struck so that our digital privacy is as protected from the prying eyes of employers the same as our material privacy.  Employers do not search prospective employees’ diaries or home safes, so why should they feel they have the right to search our digital accounts?
Some may argue that job applicants voluntarily subject themselves to such searches, which could be avoided by applying elsewhere for jobs.  However, employers have the upper hand in these situations.  When jobs are scarce, there may not be many options for job seekers.
To protect the privacy of Virginia’s workforce, the Virginia General Assembly in 2013 should pass a law prohibiting employers from demanding access to applicants’ password-protected social media accounts as condition of employment.

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