This post generously provided by Dee Rubanoff, an attorney at  Williams, Zografos & Peck in Lake Oswego, OR which represents employers.

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Employers are reportedly engaging in “shoulder surfing” during job interviews, meaning that they require an applicant to access his or her Facebook account for viewing during a job interview.  The issue of whether this is lawful has been percolating for a while in the media, and it is a hot button issue for the American Civil Liberties Union (ACLU), but there does not appear to be any established case law yet.

Obviously, the uncertainty only relates to non-public information that is intended for a person’s select group of “friends.”  Nothing prevents a prospective employer from accessing publicly available Facebook information about an applicant, even though it may be unwise from a human resources standpoint.

The ACLU maintains that requiring access to a Facebook account is an invasion of privacy, but it is unlikely that this would support a legal claim in court, because people who post information on their Facebook pages have no control over whether their friends will share the information with third parties.  Accordingly, they do not have the “reasonable expectation of privacy” that is required for an invasion of privacy claim.

There is also an argument that it violates the Facebook Terms of Use, but that may depend on what the prospective employer actually requests.  For example, a Facebook user promises not to allow third parties to access the account, or provide account information such as passwords.  However, the Terms of Use don’t appear to prevent a prospective employer from asking the applicant to “friend” the interviewer.    If that happened during an interview, there would be no opportunity for the applicant to delete sensitive material before it is viewed.

In my opinion, the most interesting aspect of this issue involves the Stored Communications Act, a federal law that prevents “unauthorized” access to electronically stored information.  In a case out of New Jersey, an employer was found liable for violating this law after an employee was asked to provide access to a private chat room that she shared with other employees.  She did so, and two other employees were fired for negative comments that they made about the company.  At trial, the company managers claimed that the employee voluntarily consented to provide access to the chat room, but the employee testified that she felt pressured to do so.  The jury found that the consent was not voluntary.

Some legal experts have taken the position that this rationale would not apply to job applicants, because they are free to refuse and only risk losing the job prospect.  I’m not convinced that a court would make that distinction between job applicants and current employees, particularly in light of the current job market and how desperate applicants may be to obtain a job.

So, what should you say if a prospective employer asks you for access to your Facebook account?  As discussed above, you could decline on the basis that it would require you to violate the agreement you made with Facebook, and hopefully the interviewer will not attempt to get around this by asking to be “friended.”  You can also decline on the basis that your friends expect you to keep their information confidential.

As a last resort, you can politely ask whether all applicants are being requested to provide this information, and whether there is something about the job position that puts your personal life in issue.  You should follow this up by reassuring the interviewer that you have nothing to hide and you would be happy to answer any questions about your lifestyle or background that are “job-related.”  If the prospective employer persists, then it’s time to consider how much you want the job, and whether you will be comfortable working for an employer that makes this a condition of being hired.