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Site Unseen: Schools, Bosses Barred from Eyeing Students’, Workers’ Social Media

Nov 1, 2012, 08:10 am CDT

Comments

Requiring that a search warrant be obtained prior to each search shouldn’t filter out critical searches.

By CA Lawyer on 2012 10 31, 11:47 am CDT

America is far behind the rest of the world in terms of privacy. 

The Canadian Supreme Court ruled recently that employers have no right to look at an employees internet history as it reveals too much about an individual.

America needs to get off it’s isolationist philosophy: legal, political, cultural and join the rest of the civilized world in the 21st century.

http://www.theglobeandmail.com/news/national/supreme-court-rules-employees-have-right-to-privacy-on-work-computers/article4625660/

By Jared Hautamaki on 2012 10 31, 12:28 pm CDT

I don’t get any of this. How can there possibly be an expectation of privacy on Facebook and/or Twitter when some people have hundreds of followers and, oh, how about the fact that the instant you post information, Facebook, Twitter, etc. OWNS the content? Some communication is private, some isn’t. You can’t make something private by just saying so. There’s a reason it’s called “social” media, folks!

By NY Esq on 2012 10 31, 12:48 pm CDT

Glad to know this story was published on November 1st—its great that someone has declared October to be over.
Seriously, social media is a real source of harm to minors.  It’s one thing to protect the rights of privacy of adult employees, but teens are not yet mature enough to understand that their posts on social media really can seriously harm or kill others.

By Parent of Teens on 2012 10 31, 1:06 pm CDT

#3 But - your artfully expressed point ignores free speech rights as well as freedom of association/assembly rights.  Just because one assembles on private property doesn’t mean employers and everyone else has a right to intrude, etc.

By Floridattorney on 2012 10 31, 1:10 pm CDT

The legislation as outlined in the article does not deal with whether or not it is private or public communication when it is placed into the social media realm.  It merely does two things, one it allows the individual to essentially retain his/her rights not to be forced to take steps that may violate their constitutional rights under the 4th and 6th Amendments to the US Constitution, i.e. not do anything that may incriminate themselves, and interestingly enough, protect the institutions from becoming potentially civilly liable for not doing a ‘good job’ in being the communication police.  I am certain that other students, and law enforcement will do their part in researching, reading and presenting as evidence, if necessary postings that may later incriminate that same individual for numerous potential crimes.  However, a good defense attorney may be successful at keeping some of the information out of evidence at trial for foundational and other reasons.  It at least seems to promote good communication and open communication and sharing of ideas especially in the academic world, which of course is the foundation of the rights enumerated in the First Amendment.

By CA Lawyer 2 on 2012 10 31, 1:23 pm CDT

When legislators provide safe harbors against the ridiculous flood of plaintiffs cases that will be brought for bullying, negilgent hiring, harrassment and other claims to be created, then maybe society will be well served. Right now we permit in the name of privacy all sorts of illegal and dangerous behavior on social media that is precluded from detection, while allowing suits by those damaged by such actions. What we have created is a generation that does not care much about privacy, except when it will disclose their inappropriate conduct. Is it any surprise that Md and Ill, two staes that are bankrupt from profligate spending and financial tricks that make the banks look honest, are the two states to rush to pass bills to protect what, public activities. Last I knew for private employers neither the 4th or 6th amendments applied. If commentator #2 thinks that is the world standard the US should adopt,  then I feel sorry for him.

By Richard on 2012 10 31, 1:50 pm CDT

Meh, this is another womb-to-the-tomb gov’t intrusion. Agreed, state actors should be prohibited from accessing any such things.

But private actors? No. That’s Ludacris. “Oh, OK, run all the private actor and state actor databases you wish, do a full background check, indeed, hire a private investigator, but I swear to jeebus, THOU SHALT NOT, UNDER PENALTY OF LAW check what Cindy and her 926 friends have given Facebook ownership of!”

A) There’s no reason for gov’t to regulate such voluntary private interactions even though it is quite fond of doing so. B) There are no freedom of speech or freedom of assembly issues. You are free to speak as you wish, and other private actors are free to disassociate themselves from you solely because of that speech.

Rest assured, if the Southern Law Poverty Center unwittingly hired the Grand Dragon or Ralph Reed, they would be up in arms about it. Not that GD or RR shouldn’t be allowed to post whatever they wish, just that once they do, other private actors shouldn’t be barred from seeing it.

By Voice of Reason Prime on 2012 10 31, 2:01 pm CDT

I think there’s a lot of confusion as to what’s being prohibited.  No one is suggesting that an employer cannot access the publicly available information put on the web on a facebook site.  What employers and schools have been doing is compelling employees and students to give their private passwords and keylog their own use (which, incidentally, is a violation of the terms of service of most social networks). 

There’s nothing “nanny state” about preventing private actors to coerce individuals to violate the facebook terms of service and open the books on their private communications.  Do you really think your employer should have an inalienable right to get your private email password?  That’s a pretty firm analogy to what’s taking place here.

By Billly on 2012 10 31, 2:07 pm CDT

What about on work-issued computers? Or on a work network on a personal device (e.g. iPad)?

By Craig Jackson on 2012 10 31, 2:39 pm CDT

At Billy, #9.

You seem to be a bit confused. There is no coercion when a private actor voluntarily agrees to contract with another private actor as is the case here. You cannot coerce the willing, and if x doesn’t want to supply y information to z, x won’t do it, whether that is a friend, a prospective employer, or a private school.

In fact, one could make the argument that access to social media would be one of the ~best~ ways to determine the character of the person you want to hire.

Furthermore, I did not say that the employer (in this case) should have an “unalienable right” to anything. I said that private actors are free contract amongst themselves. If I don’t want to offer up such things, I won’t. In fact, most people won’t. The market would very quickly skew towards employers would did not ask for such things.

That does not mean that the gov’t needs to forbid such things.

By Voice of Reason Prime on 2012 10 31, 2:40 pm CDT

#11 so your saying that minors can voluntarily contract and are not subject to school administration coercion?  (I didn’t think so)

The issue makes fun fodder for constitutional debate, but the article make pretty clear that the major thrust of legal initiatives is legislative - rather than organic common law notions.  The right of the legislature to regulate in this area…  Well, I guess we’d want to ask Judge Scalia… but I suppose it is reasonably well grounded constitutionally.

By Floridattorney on 2012 10 31, 2:51 pm CDT

I would not hire many because of they posted on Facebook.  From my perspectiv as an employer, I call it the “stupidity rule” of conduct—“if you are stupid enough to post THAT on Facebook, you are to stupid to work here” or “post at your peril.”  Call me whatever name you want to; I don’t care, but you won’t work for me period.  The same is true if I ask for yor password and you don’t give it to me.  When I don’t employ you and you emauin without a job, I might ask you how did that privacy/password thing work out for you?

Would the ACLU employ an employee who posted racist or anti-gay statements?  Of course not.  All this abstract commentation about “private actors” is not realiatic regarding private employment in the overwhelming majority of most states;  don’t forget the US Constitution does not apply to private employment.  My employees’ so-called “right to privacy” ends where my paycheck signing authority begins (when they begin employment on my terms and conditions).

By realist on 2012 10 31, 3:06 pm CDT

At Floridaattorney, #12:

Minors are always an exceptional case, but it does seem that they are happily contracting with the social media sites as minors. Be that as it may, state actors (public schools, public universities, police departments, towns, counties, et cetera) should absolutely be forbidden from doing such things, exactly because they are state actors and can, by definition, coerce others.

As far as applying to private schools? No, you (the parents) are not subject to coercion because you can simply choose not to attend x school because you don’t like such policies.

Meh, you are right though, the state has taken, by force, the power to legislate in this area. Nothing has done more damage to this country than such BS as the so-called commerce clause.

By Voice of Reason Prime on 2012 10 31, 3:08 pm CDT

If a government-funded school or employer demands the password, that is STATE ACTION. The State, through its agencies, should not make the revealing of passwords a condition of employment or school/college attendence. This mandate serves as a chilling effect on Free Speech, as does the requirement of Political Correctness. Before Political Correctness was required, persons spoke what they felt, and whomever heard that speech was forewarned if they were in danger of Death or Serious Bodily Harm from the speaker, so they could move to a position of safety or at least be prepared to defend themselves. This is no longer the case with the advent of Political Correctness. The difference is that no password is required to access someone’s Public Speech on the Internet.

By CA Lawyer on 2012 10 31, 3:16 pm CDT

To Realist:  When I got to “to [sic] stupid to work here…” in your post, I threw your resume in the trash can.

By CA Attorney 2...again on 2012 10 31, 3:38 pm CDT

@13 realist:

Left out what in the first sentence.  Misspelled perspective.  To should be too.  Misspelled your.  Misspelled remain.  Misspelled realistic.  In short, you managed to screw up almost every sentence in your comment.  Congratulations.  Pretty work.

By Pace on 2012 10 31, 3:48 pm CDT

Just curious why realist needs such tight controls . . . . “”(when they begin employment on my terms and conditions).”“

Former PaySource owner must repay $26.7M

http://www.toledoblade.com/State/2012/10/30/Man-pleads-guilty-to-defrauding-IRS.html

But, maybe I am just cynical . . . Realist: You probably have NO real employees . . .

By Laurie on 2012 10 31, 4:08 pm CDT

I have mixed feelings on the issue- this is one of the most interesting areas of law to debate right now. Employers and schools do have a legitimate reason to see what the employee is publicly doing online. However, employees have a right to expect privacy- if the employee’s FB page is limited to only friends, it’s clear that the employee doesn’t want people snooping- I’m not sure why the employer would be entitled to a password in that case.

As far as schools go, the “duty to supervise” issue that comes along with monitoring would seem to be sufficient to scare schools away from this policy. I can’t think of a legitimate reason as to why a university would need a student’s FB password. In high school, with allegations of cyber bullying, then maybe it’s justifiable (but that is not very different from a high school investigating a case of bullying at the mall).

As to the issue of government intrusion raised by Voice of Reason, there is no reason to argue with him. Any time an argument comes up about regulation, anyone arguing that there should be no regulation of any private entity/individual has no credibility. Not to mention this concept that private entities are free to contract- a contract for employment, for a normal person, is an adhesion contract. There is no bargaining power in an employment situation for most people (LeBron James has bargaining power, Joe Smith doesn’t- if Joe doesn’t want it, John and Jim will line up to take it).

By DCW on 2012 10 31, 4:55 pm CDT

To realist @ 13:

“[D[on’t forget the US Constitution doesn’t apply to private employment.”

(1) Incorrect. Although some portions of the Bill of Rights do not extend to private actors, private employers are still governed by the Constitution.  A more informed commentator might have said something like “The First Amendment does not apply to private employers, who are without constitutional limitation on their abilities to restrict the speech and assembly acitivites of their employees” and that would be accurrate.

(2) It is comments like that, and the sentiment underlying it, which give me my greatest despair in our society and tempt me to find another country to live in—one where corporations are not allowed to behave evilly under the rationalization of “free market” principles.

By Voice of Reason on 2012 10 31, 5:02 pm CDT

As far as I read the legislation, there is nothing prohibiting a prospective employer, or any other individual or entity for that matter, from reviewing the public information social media users choose to share with the world.  So…set up a company Facebook profile, log on in, and see what’s going on.  The same goes for Twitter, Instagram, LinkedIn, and any other social media site.  The “publicly shared” information is fair game for reviewing prospective job candidates or students, just as a public speech from the square or behavior on a public street is fair game.  As has always been the case, any private actor can choose to share something publicly and reap the consequences, both positive and negative.

By GB on 2012 10 31, 6:01 pm CDT

At VoR, #20:

What gives you such despair? That free thinking people want to decide who to hire, freely, and without gov’t intervention? The private corporations want to contract freely with free people for their mutual benefit?

You are, of course, welcome to move to such places, and almost universally you will find higher unemployment, higher prices, and significant costs to living there. But don’t kid yourself, those evil corporations are just groups of like minded-individuals who seek contract with others.

That those people aren’t willing to see the world according to your terms, and, in fact, simply couldn’t care less what you think about how they act, isn’t sufficient justification to restrict them by force of law. Even if the gov’t has claimed that power for itself.

By Voice of Reason Prime on 2012 10 31, 6:37 pm CDT

At VoR’ @ 22:

The despair arises from the existence of people who believe they are somehow better off in a society in which private actors are free from any ethical, moral, or equitable limits on their ability to exercise power over others through economic extortion.

The despair arises from things like your characterization of coerced intrusion into the private life of employees as “contracting freely with free people for their mutual benefit.”  If the employment contract said pre-hire “you will allow us access to all of your internet accounts upon request”, that might be accurate (if still unreasonable in my view); but the proposition at issue is “should private employers be allowed to say, post hire and without contractual agreement, ‘if you want to keep this job, give us full access to your accounts so we can snoop around and see if we can find a reason to fire you’.”  Hardly a scenario of “mutual benefit.”

The despair arises not from the fact that they “couldn’t care less about what think about how they act”, but how they don’t care about how they act, or how it affects other people.  That they may have friends, or grandchildren, who must work for private employers and be subject to this kind of abusive behavior.

One of the myths of the “free market” is that consumer behavior can prevent undesirable and unethical conduct by goods/service providers.  When a business practice is thought to be in the best short-term interests of the industry, it will quickly become a universal standard in absence of legislative prohibition.  For evidence of this, trying finding a cell phone service contract that does not contain an arbitration provision. Consumers don’t have a meaningful choice—you can’t get it without a contract, and all the contracts require arbitration. While the predictable retort is “you can choose not to have a cell phone,” that is precisely what used to be referred to as a “contract of adhesion” or “disparate bargaining positions” leading to findings of unconscionability.  And therein lies the problem—once these practices, like shrink-wrap contracts, become prevalent in an industry, it becomes very difficult to argue that the “terms are so oppressive that no reasonable person would make them and no fair and honest person would accept them”, because a critical mass of sheeple has acquiesced to the bullying.

Finally, as to complaint fo the “gov’t claiming power”: it didn’t do it on its own. It does it through elected officials.  Take your illgotten corporate spoils and buy some legislators to change the law if you don’t like what they are doing.

By Voice of Reason on 2012 10 31, 7:19 pm CDT

23. Voice of Reason
Oct 31, 2012 2:19 PM CDT

Well said!  I remember getting my new cable contract long ago.  Essencially it said: “we may change the terms of this contract at any time for any reason.”  That is the “standard” of the biginning of the end.

It’s is why protecting the weakest (poorest) is the best “standard”.  That is where it starts (the legal precident) then that snowball effect commences.

By Laurie on 2012 10 31, 7:32 pm CDT

The content of those social media posts is not the issue.  The issue is the requirement that an actor must given private information, either through a password or through tracking software, as a condition of admission or employment.

Plenty of people use social media incorrectly, and they should be dealt with on a case by case basis.  Forgive my slightly crude analogy, but how does this differ from racial profiling?  Let’s monitor all social media users to ensure that we catch the ones using it improperly.  It’s not a far stretch from, “We should subject everyone who is brown to extra security screenings at the airport.”

By BSN on 2012 10 31, 7:40 pm CDT

@ Realist

If I were your employer, I’d fire you because your post reveals that you can’t spell to save your life and have no command of the English language whatsoever.  Have fun on the slippery slope you seem to love so much.

By James on 2012 10 31, 8:47 pm CDT

@23 (Voice of Reason)
If there was premium price cellphone service that didn’t have an arbitration clause, would you subscribe to it? I think not.

By CA Lawyer on 2012 10 31, 9:39 pm CDT

At VoR #23:

There are always going to people that think as you mention, but that does not mean that private actors are free from ethical or moral considerations, nor does it mean that the law must enforce your particular brand of ethics or morals upon anyone else. As far as “economic extortion,” no one ever, EVER can be forced to deal with anyone else economically. Of course, that seems to bother you, but you’re perfectly happy to use actual gov’t force at threat of punishment by law to actually force others to do things.

It’s not a “characterization” of contracting freely, it’s actually contracting freely. No one can force you to work for them (well, except for the gov’t, but you’re OK with that force). You contract to work for them in return for pay, they contract to provide pay to you in return for your work. That is the mutual benefit. You are free to terminate that contract at any time, as is the other party. Given that nearly all states are “at will” states, no one needs a reason to fire you. They can fire you on a whim, just as you can leave on a whim. So, again, if you feel that such a request is unreasonable, you can refuse. You may get fired, sure, but they can do that ~regardless~ of whether you agree or not.

As far as they act, who cares? Do you want such people to seek control over how you act? If not, then you can understand why they don’t want you controlling how you act. They are free thinking people making decisions based on what is best for them or the company, and that isn’t wrong. It also isn’t “abusive” because you say so, you just find it distasteful, so, by extension you want to employ gov’t force to stop those eeeevil people from running a company in an economically sound manner—its only reason for existing.

As far as the free market, you seem to think companies owe you something. They do not. You are not entitled to a mobile phone contract, period. While you might find it undesirable and unethical that such companies provide an arbitration clause, that is a reasonable and fair position given that they aren’t willing to risk billions of dollars of infrastructure on the whims of a judge or jury. Very little is a “contract of adhesion” (well, except for auto insurance sometimes, since you are actually forced to buy it) and you have no right to any privately offered good or service. No one is forced to contract with you and vice versa. If that clause isn’t appealing, don’t sign sign the contract. If you actually care that much, get everyone that thinks like you do and offer your own mobile service. You can lease tower service from any provider you wish and offer any contract you wish. Yet you don’t. No one like you ever does, because you a) aren’t interested in devoting your life to such things, and b) don’t really care enough to actually do anything, so, once again, you want to force others to do as you wish them to do.

Part of the reason such companies don’t listen to you and don’t care what you think is because you don’t have any “skin in the game.” You don’t work for them, you don’t own them, and the risk to you is nearly nil. The simplest thing to do is, once again, get a swarm of people that think like you do and buy a substantial chunk of ownership. You can then have AT&T do whatever you wish. But, you won’t do that either because that actually takes a lot of time, effort, and money, and it is soooo much easier to just show others how much you care by posting on the internet and convincing yourself that you’ve “raised awareness” or some other half-assed thing that is barely distinguishable from doing nothing at all.

As far as legislators changing the law, that is so remote as to be barely distinguishable from impossible. With my solutions, you can raise money and change things very very quickly. If you’re George Soros, you can just get a couple of buddies together and make those changes next week. Waiting for an election, getting on the ballot, running for office, getting elected, getting a law passed, and all the rest of the BS that goes with it simply isn’t a viable option.

Buying a company or part of a company certainly is—it happens every single day.

By Voice of Reason Prime on 2012 10 31, 9:52 pm CDT

At Laurie, #24:

And yet, you signed that contract. Why? Because you are free to contract as you wish and your desire for cable completely outweighed your worry about a changing contract (which, if you wished after changes, you could certainly cancel).

You have no right to cable. You have no right to have any offer made on your terms. No private company can force you to sign any contract.

That you chose to accept that contract is your choice, nothing more.

By Voice of Reason Prime on 2012 10 31, 9:56 pm CDT

@28 (Voice of Reason Prime),
You forgot to mention that soon many persons will be forced to do business with private corporations or be heavily fined under federal law known colloquelly as ‘Obamacare’ with a private mandate that becomes a ‘slippery slope’ for other, even more Draconium mandates still to come. This even exceeds the cost of automoble insurance, which is NOT mandatory if you deposit a certain amount as a Bond in most State’s automotive registration agency. This is not an option with the medical mandate. Do the math: The interest that you would lose by posting a cash bond, at today’s interest rates paid by banks, is LESS than you’d pay for the minimun required car insurance.

By CA Lawyer on 2012 10 31, 10:40 pm CDT

I do not think I would give a hoot or a hollar if you read my facebook or twitter, but what if you read something that you did not personnally like?  What if you read that I am a bible toting right wing supporter of the rifle association and I loved blacks and hispanics, and muslims.  What if that was not your cup of tea and in fact it really pissed you off.  CAN I COUNT ON YOU NOT TO HOLD IT AGAINST ME AT PROMOTION TIME?  I don’t think so.

By comptonlawyer on 2012 10 31, 10:41 pm CDT

@3. Users can keep most of their Facebook content private from the general public, or even anyone else, and allow selective access to particular items. For example, users can limit access to photographs of family to direct family and friends.

By Facebook user on 2012 10 31, 11:11 pm CDT

@2: “America needs to get off it’s isolationist philosophy: legal, political, cultural and join the rest of the civilized world in the 21st century.”

LOL….man wtf are you talking about?.....isolationist philosophy?  join the civilized world?  The USA certainly has its problems but one of those problems is NOT that we live in a sh** country that everyone is leaving for a “civilized” country…..lots of people are immigrating here and/or trying to stay here.  The USA needs to copy everyone else? who? Europe? Canada? South America?

As for isolationism we certainly don’t have a problem, in fact, I wish we did so we could stop meddling all over the world trying to"fix” places that don’t want/need “fixing”.

@2 your logic train is off the tracks.

By WINGCMDR on 2012 10 31, 11:56 pm CDT

Employers defending their supposed right to snoop either don’t understand the role of social media or believe its existence should allow them to know more about their employees than they otherwise would. Social media have privacy settings that allow people to selectively choose what they share and with whom, just like we choose in whom to confide outside the digital realm. A user’s password overrides all privacy settings and allows a total intrusion to the employee’s account that could be even more revealing than searching their home. The idea that if something’s on Facebook it’s not entitled to privacy is absurd. Facebook can be used to store completely private information viewable by the user only. It can be used by far-flung family members as primary communication that’s only visible to those selected people and is nobody else’s business. It can be used for private messaging between users, which is stored. Demanding a password would be invading all of that indiscriminately. As an employer, you pay people to do a job for you for part of the day, not to conform the entirety of lives to your whims.

By Magic_Al on 2012 11 01, 12:11 am CDT

CA Lawyer @ 23: Don’t make that assumption, because you’re dead wrong. I pay more than I have to for electricity from renewable sources, I would pay a premium to preserve my rights to sue over bad service or fraud instead of being forced into arbitration in France. That’s part of why I became an attorney—so that when Big Business screws me over, I can do something about it without paying someone else thousands of dollars.

At VoR’ @ 28:

Although living persons may have morals and ethics, corporations do not. They are inherently and forever soulless and conscience-less legal constructs. You contradict yourself to imply they behave ethically in any way when you explicitly state “an economically sound manner—its only reason for existing”—the sole purpose is to make money. In fact, if the board of directors found it was in the best financial interests of a majority of shareholders to screw over a minority of shareholders, I believe they would have a fiduciary duty to do so.  Which is part of my despair.

I do not wish the law to “enforce [my] particular brand of morals or ethics upon anyone else.” I wish our legislative process to enforce SOME brand of morals or ethics on EVERYONE (including myself). I do hold out hope that it would be similar to my own.

If I threaten you with physical harm if you don’t sign a contract, that’s called “coercion.” If an employer threatens me and my family with economic ruin via immediate termination if I don’t sign a contract, that’s called “coercion.”  It’s not contracting freely if one party has no realistic alternative. Now if the employer says “you will be fired in six months if you don’t sign this agreement”, that’s arguably not coercion—because I have a realistic alternative of seeking and securing alternative employment instead of signing.

You are correct that under “at will” employment, there need not be any reason for termination. But no employer may terminate someone for a forbidden reason—whistleblower retaliation, FMLA retaliation, race/gender discrimination, ADA discrimination, etc. The statutes at issue are just tacking on to that list: you can’t hold someone’s livelihood hostage over their refusal to provide you with their FB password. Whether those statutes are subject to contractual waiver is a separate question! The people the law is initially protecting didn’t willfuly enter this deal of “go to school here, and give up your right to private conversations on the internet.”

Companies don’t “owe me something”; they owe “everyone, everything”, including their very existence. Because you didn’t build that. Just as I owe my parents for my birth and nurturing, any company owes its existence to our society and government. No company signed the US Constitution, fought in a war or died in combat, or voted for the legislators who created the system of laws and adopted the UCC.

I find it remarkable that your post transforms from defending private actors as having morals and ethics at the start to (paraphrasing) “you don’t own enough of the company for it to care what you think.”  It appears that you concede that any individual’s ability to dictate the terms of a contract with a sufficiently large business is zero, particularly when your proposed solution to corporate abuses is “buy a substantial chunk of ownership”, laced with accusations that I am merely too lazy to do so. Setting aside the fact that it takes more than a “substantial chunk”, but actually a “controlling interest” of stock to make any corporation do “whatever I wish”, you miss the point again: I don’t want to make them do any particular thing; I want them forbidden from doing abusive things. All of them. Every corporation, sole proprietorship, GP, LP, LLC, PLLC—- all of them. It would be horribly silly and inefficient to attempt to buy controlling interest in every US business in order to prohibit discrimination against the disabled, for example—so the ADA was passed. That’s what Congress is for—making rules that reach everyone.

So instead of running around trying to buy every corporation in the US—which would likely get me committed to an institution rather quickly—I instead advocate change to the law here and elsewhere. Because the victims of these abuses outnumber the perpetrators and/or their owners profiting from the abuses.  Justice is not only for those wealthy enough to own their own companies—in which case they don’t give a damn about some other employer’s intrusive FB policies—but for all the people.

So stop whining about the poor and not really “free” market being victimized by the legislative process. Stop being lazy and convince the voters and legislators that you are right and that all markets should be free of all those oppressive regulations. Stop pretending that affecting legislation isn’t a viable option—it happens every single day. See, e.g., every targeted tax break and industry subsidy ever created.

By Voice of Reason on 2012 11 01, 12:13 am CDT

Just because I consent for you to be my friend on facebook etc doesn’t mean I consented to my boss, school or any other noisy person the right to see what is there.

Does your girlfriend consenting to have sex with you give me the right to sleep with her too?

By tim17 on 2012 11 01, 2:28 am CDT

To the libertarians:  if it’s OK for corporations to come up with pretty much any policy, because apparently, nothing a corporation ever does is coercive, why can’t you say the same thing about governments?  After all, what’s stopping you from moving to another country where those rules don’t apply?  You’ve willingly made the choice to live under the terms of your current government in a mutually beneficial arrangement, so how is that different from dealing with a corporation in the same way?

By CourtroomWolf on 2012 11 01, 5:38 am CDT

Unless one is being accused of a crime, why should the government or corporation have the right to snoop into an citizen’s personal life when they’re “off the clock”? Of course, the elite members of these different organizations won’t be subjected to the same “monitoring.” Can I hire a private detective to spy on a CEO, just to see if he/she is engaging in activity that could be deemed inappropriate? I think not. What if one is gay, and their supervisor is an evangelical Christian? If the boss had the employees’ password, they would obviously see postings they disagreed with. Blackmail…personal vendettas…anything goes. I applaud this court’s ruling. There has to be some privacy lines one cannot cross.

By Dan on 2012 11 01, 5:47 am CDT

WOW!  People need to realize that Facebook, email, other social networking stuff - is all ethereal.  I work with security (government) and I will never give a password of my personal accounts out to anyone PERIOD.  These accounts may or may not exist - but if they in fact do exist, IT IS MINE.  That is MY business and NO ONE ELSES!  Any employer that can’t respect that can go suck a lemon.  I wouldn’t work for them anyway.  I wouldn’t be secure.

By Scott on 2012 11 01, 7:50 am CDT

At Comptionlawyer #31:

How about this?

“I do not think I would give a hoot or a hollar if you read my facebook or twitter, but what if you read something that you really did like?  What if you read that I am a bible toting right wing supporter of the rifle association and I loved blacks and hispanics, and muslims.  What if that was amazing to you, and in fact it you were really impressed? CAN I COUNT ON YOU TO USE THAT AS A HUGE PLUS AT PROMOTION TIME? I think so.”

You won’t ever ~know~ all the myriad of little things that go into hiring, firing, promotion decisions, and you can be fired at will. It doesn’t matter. Hell, x person could decide that y person is a self-righteous, narcissistic, wang at the coffee machine. That could count against you as well.

These are all just part of the human decision-making process.

By Voice of Reason Prime on 2012 11 01, 2:52 pm CDT

At Magic_Al #34:

“The idea that if something’s on Facebook it’s not entitled to privacy is absurd. Facebook can be used to store completely private information viewable by the user only. It can be used by far-flung family members as primary communication that’s only visible to those selected people and is nobody else’s business. It can be used for private messaging between users, which is stored. Demanding a password would be invading all of that indiscriminately. As an employer, you pay people to do a job for you for part of the day, not to conform the entirety of lives to your whims.”

You are simply wrong. No one is making the point that any employer is “entitled” to anything. What actually happens is that as an employer you offer a position to people to do a job for you for part of the day under your terms. Conversely, people offer you their labor for part of the day under their terms. Somewhere in the middle, you agree to to the contract or you don’t.

That’s it. If you don’t want to show the employer your social media as part of the contract, you don’t enter into that contract. If the other party doesn’t like that you won’t show them their social media, they won’t enter into the contract.

By Voice of Reason Prime on 2012 11 01, 2:58 pm CDT

VoRP @ 40: The idea that any employer wants access to the “interior” of any employee’s social media accounts to root around for an excuse to give them a raise is laughably absurd.  The possibility that while hunting for something negative—their only realistic motive—they will accidentally trip over something favorable to them on a personal level, and that it would be impactful enough to affect their employment, is extremely small.  No thank you, I would rather them judge my value at work based on work, not on my personal views, my friends, etc.

And VoRP @41: Why do you keep bringing contracts into this? The issue is that employers and educational institutions are springing this ultimatum on people in the midst of the preexisting relationship.  Most employer’s don’t have written employment contracts for their workers because that clutters up the “at will” relationship that lets them fire someone for no reason—or for not giving them access to their social media accounts. 

Your characterization of how employment works is silly and incorrect as to 80+% of the population, particularly in this economy. The employer offers a job on their terms. The employee either takes it or leaves it.  While there may be some room to negotiate starting salary—in that the employer will try lowballing the employee, but may have room to move upwards to keep a preferred candidate—virtually none of the other terms are negotiable. Work hours, schedule, holidays, insurance providers, office location, job duties,  brand of coffee in the break room, etc. are all set by the employer. The employee is trying to stay off the street, keep the kids fed, etc.—and can’t risk losing that chance by actually standing up for his privacy rights.

You think there is “freedom to contract”? Go apply for some jobs which pay hourly wages, and see how much room there is in the terms (presuming you could actually land one). See if you can get the employer to commit to any of your suggestions, and put it in writing so it could be enforceable beyond one year.

There’s only so much that can be done about the disparate bargaining positions of employer and employee; and I do agree that employers should generally be allowed to customize and dictate the terms of the relationship—the committment of capital is worthy of control authority. However, the idea that this is a product of fair dealing is a complete fiction. Employers should have limits that don’t extend to forcing employees (who don’t agree in advance) to give unfettered access to private social media accounts.

By Voice of Reason on 2012 11 01, 3:31 pm CDT

At VoR, #35:

“In fact, if the board of directors found it was in the best financial interests of a majority of shareholders to screw over a minority of shareholders, I believe they would have a fiduciary duty to do so.  Which is part of my despair.”

So. What? It doesn’t affect you. It doesn’t affect anyone except those that invested. They are free thinking persons and very sophisticated investors. They can choose to participate in such investments or not. As long as the fiduciary duty is maintained and fraud and coercion aren’t used, who the hell cares? People will either invest, or they will not. Should some company make that a habit (more than once), well, attracting further investors will be nearly impossible. C’est la vie.

“I do not wish the law to “enforce [my] particular brand of morals or ethics upon anyone else.” I wish our legislative process to enforce SOME brand of morals or ethics on EVERYONE (including myself). I do hold out hope that it would be similar to my own.”

Except that it does not. Whatever BS gets enforced onto everyone is whatever so-called crisis that x group can convince the gov’t to force onto others. Usually that just means who can raise a lot of money.

What the gov’t should be doing is defining a set of principles and then legislating according to that, not just legislating any ol’ thang. Frankly, that should not be similar to your own, because it forces other people to do things they otherwise would not have done and meddles in private lives where there is no rational reason to do so.

“If I threaten you with physical harm if you don’t sign a contract, that’s called “coercion.” If an employer threatens me and my family with economic ruin via immediate termination if I don’t sign a contract, that’s called “coercion.”  It’s not contracting freely if one party has no realistic alternative. Now if the employer says “you will be fired in six months if you don’t sign this agreement”, that’s arguably not coercion—because I have a realistic alternative of seeking and securing alternative employment instead of signing.”

Wrong. It is called contracting regardless of your ideas about what constitutes “realistic alternatives,” because you have no right to anyone else providing anything to you. If your particular circumstances suck, and Nike offers you a job that may suck (by Western standards) your choice remains the same—take the job, or don’t. However, if you think the job (even suckily) can make your situation better, then it is likely in your best interest to take it. The same holds true here, you have no right to that job, and the employer has no right to your labor. You can leave for any reason at any time, and the employer can stop employing you for any reason at any time. There’s nothing wrong with that.

However, if you disagree, you are welcome to offer employment to anyone you wish, at any terms you wish. What actually happens? Even people who think exactly like you who own companies make virtually the same decisions as those eeeevil corporations because they make economic sense.

“You are correct that under “at will” employment, there need not be any reason for termination. But no employer may terminate someone for a forbidden reason—whistleblower retaliation, FMLA retaliation, race/gender discrimination, ADA discrimination, etc. The statutes at issue are just tacking on to that list: you can’t hold someone’s livelihood hostage over their refusal to provide you with their FB password. Whether those statutes are subject to contractual waiver is a separate question! The people the law is initially protecting didn’t willfully enter this deal of “go to school here, and give up your right to private conversations on the internet.”

Once again, you are taking the position that x (private school, employer, whatever) is under some obligation to provide you with something, or that you are entitled to them continuing to provide you with something. You simply have a choice: accept their offer, or refuse their offer. They do the same, accept your offer, or refuse your offer. They don’t owe you anything. Much like CableGurl above, she valued cable over the clause in the contract she didn’t like.

“Companies don’t “owe me something”; they owe “everyone, everything”, including their very existence. Because you didn’t build that. Just as I owe my parents for my birth and nurturing, any company owes its existence to our society and government. No company signed the US Constitution, fought in a war or died in combat, or voted for the legislators who created the system of laws and adopted the UCC.”

Wrong again. Companies are simply groups of people that associate freely to offer an economic benefit and therefore a product or service to its clients, customers, and employees (who are also part of the group of people). No company owes its existence to anyone or anything—it doesn’t exist because of some gov’t, or some framework for said gov’t. In fact, it exists IN SPITE OF such roadblocks. Whether it is 3 people, or 300K people, it exists because those people see economic benefit in working together for mutual benefit.

“I find it remarkable that your post transforms from defending private actors as having morals and ethics at the start to (paraphrasing) “you don’t own enough of the company for it to care what you think.”  It appears that you concede that any individual’s ability to dictate the terms of a contract with a sufficiently large business is zero, particularly when your proposed solution to corporate abuses is “buy a substantial chunk of ownership”, laced with accusations that I am merely too lazy to do so.”

Wrong again. Neither the company nor the customer can “dictate terms of a contract,” to the other, period, because these are voluntary, private, willing, associations. A company does not “dictate” what you will do, it makes an offer that you are free to accept or reject. You offer them your money, and it as well is free to accept or reject.

The point is that with a controlling interest, you can make those changes NEXT WEEK. Or, you can lease tower time and offer your contracts as you wish, NEXT WEEK. The situation remains the same, you are going to offer contracts on your terms, people are free to accept or reject.

“Setting aside the fact that it takes more than a “substantial chunk”, but actually a “controlling interest” of stock to make any corporation do “whatever I wish”, you miss the point again: I don’t want to make them do any particular thing; I want them forbidden from doing abusive things. All of them. Every corporation, sole proprietorship, GP, LP, LLC, PLLC—- all of them. It would be horribly silly and inefficient to attempt to buy controlling interest in every US business in order to prohibit discrimination against the disabled, for example—so the ADA was passed. That’s what Congress is for—making rules that reach everyone.”

The problem here is that what you and I consider “abusive things” are nearly diametrically opposed. For example, the ADA has resulted in substantially LESS disabled people being hired because it has become nearly impossible to fire them. You think that some dumb law is some gain (even though everyone you mention can completely disregard the ADA on a whim, because it is nearly impossible to enforce when x company doesn’t hire someone in the first place) but at the margin, it means that fewer ADA peeps get hired. You feel good about some law that reinforces your ideas about “fairness” and it generally remains, business as usual, e.g., I’m going to hire Stephen Hawking if I need a physicist, I’m going to laugh him out of the office if I need a bricklayer, and the ADA remains (and is) worthless.

Any rational company is going to hire the best qualified person, regardless of a disability. That just makes sense. However, if there is ANY doubt, that disabled person won’t get hired because the company cannot fire them without great difficulty.

Now, if there were a principled standard that the gov’t adhered to unfailingly, maybe I could get behind some of this legislation, but the FEDERAL GOV"T mandating that private cable companies MUST UNDER PENALTY OF LAW keep the volume of their commercials at the same level of the TV show is silly. It’s stupid, and it is not a proper role for the federal gov’t.

“So instead of running around trying to buy every corporation in the US—which would likely get me committed to an institution rather quickly—I instead advocate change to the law here and elsewhere. Because the victims of these abuses outnumber the perpetrators and/or their owners profiting from the abuses.  Justice is not only for those wealthy enough to own their own companies—in which case they don’t give a damn about some other employer’s intrusive FB policies—but for all the people.”

Right, the point remains: you want your morals and ethics enforced on everyone else. Because no rational person could ever reach the conclusion that these “abuses” aren’t abuses, whether the company is 2 people or 200K. I don’t want your morals and ethics enforced onto me. I promise, you do not want mine enforced onto you.

“So stop whining about the poor and not really “free” market being victimized by the legislative process. Stop being lazy and convince the voters and legislators that you are right and that all markets should be free of all those oppressive regulations. Stop pretending that affecting legislation isn’t a viable option—it happens every single day. See, e.g., every targeted tax break and industry subsidy ever created.”

Of course it is a viable option per se, it is really just the slowest and most ineffective option to attempt, given the vagaries of the system. You don’t have to buy all of the companies, but if you want to make change, guaranteed, next week, yes, you can do it. There is no doubt about it.

By Voice of Reason Prime on 2012 11 01, 4:16 pm CDT

At VoR #42:

“The idea that any employer wants access to the “interior” of any employee’s social media accounts to root around for an excuse to give them a raise is laughably absurd.”

Of course it is, that was the point, to illustrate that all information about you can or will be used to change the nature of your interpersonal relationships. Yes, the SLPC has a valid interest in not hiring a Klan member. Yes, DirtFirst! or Sierra Schlub has a valid interest in not hiring a libertarian.

“Why do you keep bringing contracts into this? The issue is that employers and educational institutions are springing this ultimatum on people in the midst of the preexisting relationship.  Most employer’s don’t have written employment contracts for their workers because that clutters up the “at will” relationship that lets them fire someone for no reason—or for not giving them access to their social media accounts.”

A little context please. I’m not talking about traditional written employment contracts (though those are included), I’m talking about the contract of mutual benefit. You will stay at your job as long as the marginal utility of that job is worth more to you than any of the other alternatives. Your employer will keep you at that job as long as the until the marginal utility of your contribution is worth more to the employer than any of the other alternatives. That is a contract.

“Your characterization of how employment works is silly and incorrect as to 80+% of the population, particularly in this economy. The employer offers a job on their terms. The employee either takes it or leaves it.  While there may be some room to negotiate starting salary—in that the employer will try lowballing the employee, but may have room to move upwards to keep a preferred candidate—virtually none of the other terms are negotiable. Work hours, schedule, holidays, insurance providers, office location, job duties,  brand of coffee in the break room, etc. are all set by the employer. The employee is trying to stay off the street, keep the kids fed, etc.—and can’t risk losing that chance by actually standing up for his privacy rights.”

Jeebus, so what? If you personally offer employment to someone, you are going to offer it on YOUR TERMS, even if your terms are better than those you mention above. X company has decided to offer employment on ITS TERMS, and some of those terms are non-negotiable because it has decided that such offer is what the job is worth to the company. It doesn’t matter that you think you should get another week of vacation, it isn’t making that term negotiable. The contract remains the same, it makes its offer, you make yours. Either the value of that job at whatever terms is higher than the marginal utility of not taking that job (at which point you take it) or it is not (at which point you don’t). You either agree to contract or you don’t.

As far as your idea of keeping kids off the street, et cetera, frankly then the best alternative would be for a company to basically fire everyone and rehire them again for pennies on the dollar. Except that doesn’t happen because the free market won’t allow that—everyone will just go to another company that won’t pay them pennies.

“You think there is “freedom to contract”? Go apply for some jobs which pay hourly wages, and see how much room there is in the terms (presuming you could actually land one). See if you can get the employer to commit to any of your suggestions, and put it in writing so it could be enforceable beyond one year.”

You are better than this. The contract is formed when you agree to work and they agree to hire you. It simply doesn’t matter what terms are offered, or what terms you wish were negotiable. If you don’t agree to work and they don’t agree to hire you because your terms are unacceptable to them, then there is no contract.

“There’s only so much that can be done about the disparate bargaining positions of employer and employee; and I do agree that employers should generally be allowed to customize and dictate the terms of the relationship—the committment of capital is worthy of control authority. However, the idea that this is a product of fair dealing is a complete fiction. Employers should have limits that don’t extend to forcing employees (who don’t agree in advance) to give unfettered access to private social media accounts.”

No, it isn’t a complete fiction because both parties have complete control over entering into the contract or not. THAT IS fair dealing because no one has a right to any offer on their (or any particular) terms. Making an offer of employment contingent on access to social media is just another term that one can accept or not. Arguably, such a term is far less intrusive than a background check, private database checks, or the use of a private investigator.

The last word is yours if you wish.

By Voice of Reason Prime on 2012 11 01, 4:45 pm CDT

VoRP (or VoR’ as I have sometimes indicated):

I’ll take the bait for “the last word” (not that I can or would hold to you to that), but I’ll keep my responses brief.

As to the ADA—try doing legal work for disabled persons and then tell me the law is bad for them. Or try using a wheelchair where there aren’t any ramps, because your bottom-line profits are king mentality didn’t think there were enough wheelchair using customers to trouble themselves to install them. And I challenge your assertion that there are fewer disabled persons in the workforce now than pre-ADA.

@42: “No company owes its existence to anyone or anything—it doesn’t exist because of some gov’t, or some framework for said gov’t. In fact, it exists IN SPITE OF such roadblocks.”

This gibberish is demonstrative proof that you are devoid of any reason at all, moniker notwithstanding, on any issue which challenges the premise of “wealth gets to make all the rules.” Try forming a corporation—a legal construct providing a shield to owners from business liability—without the gov’t framework. You can’t, because it is impossible for such things to exist outside of the gov’t system. Sure, you could wave around pieces of paper in a stock exchange and convince each other they are worth money—but you couldn’t file a separate corporate tax return without the legal framework, couldn’t sue in the corporate name, and couldn’t keep the shareholders out of court via respondeat superior when a delivery driver runs over a little kid or a product defect kills.

@ 43 :“I’m talking about the contract of mutual benefit. You will stay at your job as long as the marginal utility of that job is worth more to you than any of the other alternatives. Your employer will keep you at that job as long as the until the marginal utility of your contribution is worth more to the employer than any of the other alternatives. That is a contract.”

No, it isn’t because it has no enforceable terms. At-will employment. An employee can’t sue the employer and prove breach by demonstrating that the “marginal utility of [their] contribution is worht more ... than any of the other alternatives” after they are fired by someone like you for failure to “like” the FB page of the “Advocates of Total Dominion of Wealth” or a private message where they express what nutjob ideas you have about “freedom to contract.”

@ 44: “Making an offer of employment contingent on access to social media is just another term that one can accept or not.”

Yes, until the practice is outlawed. But you keep ignoring the point that for people who are already employed or enrolled in school, its abusive to give them these invasive ultimatums.

@ 43: “Of course it is a viable option per se, it is really just the slowest and most ineffective option to attempt, given the vagaries of the system.”

Huh. Seems the slowest and most ineffective option is going to kick the ass of your all-powerful, speedy, and efficient free market forces. Why don’t you drum up a bunch of money and convince the public to reject the legislation, since its so horrible?

Stop pretending that “the government” is an alien which conquers the citizens. It is comprised of the citizen’s elected and appointed representatives and agents. I am thankful that yours is a slim, if verbose, minority view.

By Voice of Reason on 2012 11 01, 5:16 pm CDT

29. Voice of Reason Prime
Oct 31, 2012 4:56 PM CDT

Actually, since that happened the cable is gone, and never to come back for that reason, and I tell them so when they want to resell me.

And when I see . . . “”“Your License to Us
1.By submitting (e.g., uploading) any message, information, data, text, software, images, or other materials (“Content”) to the Website, you automatically grant SnagAJob.com a royalty-free, perpetual, irrevocable, non-exclusive, fully paid up, transferable right and license to use, reproduce, modify, adapt, publish, distribute, translate, communicate to the public, create derivative works from, distribute, perform and display such Content (in whole or part) worldwide, or to incorporate it in other works in any form, media, or technology now known or later developed (for the full term of any rights that may exist in such Content), without restriction or compensation, and to grant and authorize sublicenses thereof.”“”
http://www.snagajob.com/terms/

I never go back to the site again. . . .
compare that to:  http://www.abajournal.com/terms

By Laurie on 2012 11 01, 6:02 pm CDT

realist @ 13: Thanks for the amusement. I will be re-posting your post on my FB page for the amusement of my friends, and their thousands of friends, etc. Your post will invariably be displayed across the country in a very short time—and there’s nothing you can do about it; because I don’t work for you, you posted it in a public place, and nothing dies on the internet. I call it the “stupidity rule” of social media: The employer with the most “stupid” goes viral for all the wrong reasons.

By BMF on 2012 11 01, 7:31 pm CDT

Voice of Reason . . . . . Good One lol
But to the other guy on any level with a different wind that makes their particular ship sail, it is wrong.  It is wrong to reasonable people.  But if America turns fully and completely corporate from the President on down, it likely will not be wrong for long.  Privacy from Government snooping and intrusion will be gone for ever.  The Government Corporation will wake you up in the morning, tell you what to eat, what to drive (company approved car only), who to marry and who not to look at, when to sleep and generally observe your every move even as you watch tv, the tv will be watching you.

By comptonlawyer on 2012 11 01, 8:38 pm CDT

At Laurie #46:

Well done.

By Voice of Reason Prime on 2012 11 02, 1:16 pm CDT

At VoR #45.

Thanks for the discussion. 8^]

By Voice of Reason Prime on 2012 11 02, 1:17 pm CDT

@44. Voice of Reason Prime

“Making an offer of employment contingent “on access to social media” is just another term that one can accept or not.”

What if you substitute “on access to social media” to “on you having sex with me”??  The employee is still free to “contract” and go separate ways, correct?

By Trebag on 2012 11 05, 9:00 pm CST

“What if you substitute “on access to social media” to “on you having sex with me”??  The employee is still free to “contract” and go separate ways, correct?”
That would be called prostitution and is illegal in nearly all states. Hence some terms are already unacceptable under the law because they violate important social considerations, and the right to privacy in one’s personal computer accounts would be another.

By @44 on 2012 11 05, 9:43 pm CST

Just because the information is online, it does not make it public (absent incidents of hacking). There are privacy settings on Facebook and other social media accounts. No one is stopping a university or employer from looking at pages that are public to all individuals.  Restricted content is restricted. Items posted online are intended for friends and not the general public.

If an administrator hears a rumor about something online that is improper, illegal or god knows what, they can go do their jobs and interview the individual and his or her friends. Remember, just because something is posted on a user’s account, does not mean the user wrote it. All to often individuals are permanently signed into Facebook on their phone so any of their friends can pick up the phone and type whatever profane status update they choose.

By Inquisitive Mind on 2012 11 09, 4:29 pm CST

I am not “gifting” tech or anything else this year—I am giving gifts (including some technology items). Please stop using the very ugly “gifting” in any context.

(This is directed at the survey that appeared on the page with this article—there was no other place to comment.)

By T. B. Patterson, Jr. on 2012 12 02, 11:52 pm CST

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