The Newest Way to Screen Job Applicants: A Social Networker's Nightmare

I. 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. A. 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. …