Schizophrenic Facebook Nation

Who would want current or potential non-sensitive employers gaining access to Facebook, Twitter and other accounts? For the express purpose of judgment?

Infant remedial legislation aside, Facebook finds itself ironically a centurion for privacy. The site offers to sue those employers demanding access to users’ accounts. Kafka’s page must be getting lots of likes.

The genesis of today’s issue lies with Americans’ Faustian bargain made long ago: the notion that privacy can and should be traded. After 2001, for protection from fear and terror. By 2012 Americans happily surrender it daily for services, coupons, games, searching Google, etc. As the saying goes, if you can’t figure out how they’re making money, it’s off of your usage and ‘privacy’.

So what is too far? After all, Facebook and others track users across the Interwebs off site, unless one specifically blocks it. Google and others were exposed as deliberately evading Apple’s iOS privacy settings to obtaining user private information. A retraction and press release later, the issue forgotten. Facebook reset its privacy settings several times, potentially making public what users thought was private. All for the social graph.

And all rather arcane, too. Someone demanding your password? Relatable. Nothing really is too far as long as it’s not perceived as explicitly violative.

And that’s the American schizophrenia. Our privacy is a currency except when we say it’s not.

Law enforcement and employers, of course, have long used Google and Facebook to check up on people. The Rubicon is employers requiring the password to see if there’s more. Mortifying enough for them to see those I Can Haz Cheezburger memes.

How this plays out in the current legal environment remains to be seen. Not all employers making the request are the same. Significant analytical distinctions exist among local, state and federal government intrusions and acts by a private entity. Complicating matters might be claims that third party interests are involved – i.e., anyone who sent a message privately to an accessed account. Do they have a reasonable expectation of privacy from accessing employers? What will happen to information? How long will it be kept? To whom will it be passed? Facebook tried to raise the bogeyman of age discrimination potential liability as well – rather silly if they physically met a candidate and had their resume but only learned their age from Facebook? It might be fling everything at a wall and see what sticks time.

It’s early in the controversy. We think Facebook’s initial offer to sue requesting employers is on shaky ground. One has to ask does Facebook have standing to sue at all? Facebook says employer requests violate its user terms and conditions. That could be a slim reed. If the employer doesn’t use the site, they’re not bound by them anyway. The only violating user would be the job applicant.

As you know, Dear Reader, we are long time proponents of privacy and guarding against its infringement. None of the above should be construed as in anyway accepting employer intrusion into an applicant’s account. At the same time, Americans overall have to start taking privacy seriously. There’s something vampiric about the tech industry now standing up for user privacy, especially Facebook.