ACLU Asks State Police to Stop "Shoulder Surfing" Practice

March 27, 2012

May Violate Federal Law, Constitutional Rights of Free Speech and Privacy

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

Richmond, VA - The American Civil Liberties Union of Virginia today warned the Virginia State Police that it may be violating federal law as well as the U.S. Constitution by requiring applicants to sign on to their Facebook and Twitter accounts so that job interviewers can read their private communications.

Known as "shoulder surfing," the practice of forcing job applicants to reveal their private communications to employers is facing intense public criticism and legal scrutiny. In Maryland, the Department of Corrections revised its shoulder surfing policies after the ACLU complained.

In a letter faxed earlier today to Virginia State Police Superintendent W. Steven Flaherty, ACLU of Virginia Legal Director Rebecca K. Glenberg asks that the practice be discontinued. Glenberg writes:

Absent a concrete reason to believe that a potential employee is engaged in wrongdoing of which his Facebook account is likely to contain evidence, these communications are simply none of the VSP's business. Looking at this information is akin to opening an applicant's mail or listening in on his telephone calls. Such eavesdropping intrudes on the privacy of not only the job applicant, but his online friends and correspondents.

"Each of us has a zone of privacy in which we engage in our most intimate and confidential communications," said ACLU of Virginia Executive Director Kent Willis, "and no one else -- not the government, not your employer -- should be able to force its way into that personal space."

"Free speech is not just about the right to be free of censorship, it is also about the right to engage in private communications without others listening in," added Willis. "Can you imagine anything more chilling than knowing that your employer, whether private or public, has the right to read the private thoughts you intended to share only with family members or close friends?"

According to the ACLU of Virginia, any employer who engages in shoulder surfing may be violating the Stored Communications Act, a federal law that makes it illegal to intentionally access stored electronic communications without valid authorization. According to at least one court ruling, coercing job applicants to provide access to their social media accounts violates this law.

Government employers that shoulder surf may also be violating the Fourth Amendment right to be free from unreasonable searches and seizures and First Amendment right to freedom of speech.

A copy of Glenberg's letter can be found online at: https://acluva.org/wp-content/uploads/2012/03/20120327VAStatePoliceLette....
 

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