What follows are three incorrect statements in an attempt to deconstruct this issue:
- “If such precedents continue to be set, everything that is digitally accessible may become evidence if an aggressive litigator decides that it might be useful.” In reality, the precedents are wildly inconsistent. Courts across the country are weighing the privacy rights of a litigant versus the relevance of the requested social media information. In this case, the judge favored the latter. A different judge could have reached a different result. One case, however, cannot be read as an indictment of the erosion of personal privacy rights.
- “Employers all over the world have begun to demand Facebook access to private accounts—some at the job interview stage.” This statement is not one of fact, but instead one of hyperbolic opinion. In reality, my research reveals that very few employers engage in this practice. Don’t just take my word for it. Also take the word of an Australian law firm that conducted a similar survey, with similar results.
- “Six U.S. states have now deemed it illegal for employers to do this.” In gross over-reaction to this issue, it’s sadly 11 states that have banned employers from requiring access to an employee’s social media account. Regardless, these laws do not prohibit a judge from providing access as part of the discovery process.