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Facebook threatens, but likely bluffing

Facebook, it is reported, has threatened to sue employers that demand access to the usernames and passwords of employees or potential employees.

Facebook would certainly have the financial wherewithal to intimidate smaller employees, but I would love to know, absent legislation, the nature of the legal theory on which they propose to rely. One suspects, from the language used in their announcement, that they realize their case would be weak:

“Facebook takes your privacy seriously. We’ll take action to protect the privacy and security of our users, whether by engaging policymakers or, where appropriate, by initiating legal action, including by shutting down applications that abuse their privileges.”

When lawyers threaten to take “appropriate” action, they are often hedging, as ofttimes the only appropriate thing to do is nothing. There may be some legal theory they can hang their hat on, but I question whether Facebook itself would even have standing to sue, and if it can’t come up with a claim to assert on its own behalf, it will need to fund a suit by an aggrieved worker, and good luck with that.

The sad fact is that at common law workers have virtually no rights. What rights they have are creatures of statutes. This particular privacy issue is unique to our times, so there are no statutes that specifically address it, and my guess is, few that can be tortured to do so. (I am putting the ever smaller unionized work force to the side, of course.) Blumenthal’s attempt to address it in Congress will probably go nowhere, given the anti-worker attitude of the Republicans, who effectively control both houses. Progress in most states seems unlikely, since workers are having trouble holding onto what were once considered fairly basic statutory rights. So don’t look for much progress on this on the legal front, as employers are operating in a buyer’s market, and if an applicant is not willing to debase him or herself for a job, the employer can go to the next person in line, who likely will.

It’s something we could do here in Connecticut, however. Were I in the Connecticut legislature I’d be quick to jump on it. The CBIA might not like it, but in reality it’s not the kind of thing likely to drive business elsewhere, but it would be popular, especially with young voters.

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