Right to Review Applicants’ Facebook Pages?

The Baltimore Sun reports that when he reapplied for his former job 29-year old correctional officer Robert Collins was forced to divulge his Facebook password and “watch as his personal page and its postings were perused by an investigator.”  Collins considered this to invade his privacy and complained to the ACLU, which led to the Maryland Division of Corrections “backing off, saying it will suspend such demands for 45 days during a review of the matter.”

What will they learn in 45 days they don’t know now?  Maybe the DOC thinks that’s long enough for this issue to fall off the radar.

Should employers have the right to look at the Facebook posts, pages, and pictures of prospective employees?

Gap Between Outrage and Law

Widespread outrage followed the September suicide of Tyler Clementi, the Rutgers student who killed himself after his roommate and another surreptitiously, via webcam, viewed Clementi kissing another man.  Cries to punish followed outrage, and New Jersey prosecutors charged Dharun Ravi, the roommate, and Ravi’s friend Molly Wei with invasion of privacy and transmitting a sexual encounter on the Internet.  Clementi’s suicide was one of a spate of suicides by gay teenagers in recent months, and many called for Ravi and Wei also to be prosecuted for anti-gay hate crimes.  Peeping via web cam and computer on two men making out and sharing and laughing about it with others must be a crime.  Right?

Not necessarily, as discussed in Rutgers suicide case poses test for NJ privacy law.  Does Ravi’s Twitter message–Roommate asked for the room till midnight. I went into molly’s room and turned on my webcam. I saw him making out with a dude. Yay–show the anti-gay bias necessary to prove beyond a reasonable doubt that a crime was committed because of the victim’s protected-class status?  The message contains no pejorative terms, there’s no independent evidence of Ravi’s or Wei’s animus towards gays or lesbians, and their family and friends will testify that both had gay friends.  Making out with a dude was, as far as we know, a statement of fact.  Titillation over a roommate’s romantic same-sex encounter is a long way from a hate crime.

And for their to be a hate crime, there first must be a crime.  Here are the relevant provisions of New Jersey’s criminal invasion of privacy statute (emphasis added):

1. a. An actor commits a crime of the fourth degree if, knowing that he is not licensed or privileged to do so, and under circumstances in which a reasonable person would know that another may expose intimate parts or may engage in sexual penetration or sexual contact, he observes another person without that person’s consent and under circumstances in which a reasonable person would not expect to be observed.

1.b. An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person’s consent and under circumstances in which a reasonable person would not expect to be observed.

The incident’s reported facts do not support a charge of third degree invasion of privacy.  Assuming the webcam video was saved and not just streamed, Ravi and Wei observed Clementi doing no more than kissing another man.    Fourth degree invasion of privacy may fit the facts, if it was reasonable to believe the encounter would result in exposed “intimate parts” or actual sexual penetration or sexual contact.  Proving that on the reported facts beyond a reasonable doubt–no nudity, not even partial nudity, just kissing–will be a challenge.

Put simply, New Jersey has a weak criminal case against Ravi and Wei–and that assumes their culpability is equal.  Ravi used Wei’s computer, but appears to have been only a bystander, not an actor.  Remember the failed prosecution of Lori Drew for her role in Megan Meier’s suicide–outrage without a crime is not an unusual outcome in controversial Internet-related activities.