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66 — The Elon Journal of Undergraduate Research in Communications • Vol. 1, No. 2 • Fall 2010

The Payne case highlights a frequent trend that has become quite common in today’s job markets. Employers have become especially adept at using Facebook and MySpace to screen job applicants and current employees. A 2006 survey conducted by researchers at the University of Dayton concluded, “Out of a pool of 5,000 employers nationwide, 40% would consider using the Facebook profile of a potential employee in making the hiring decision. Several employers even reported rescinding offers after checking out profiles on Facebook.”40 In many cases, these employers violate Facebook and MySpace’s terms of service in retriev- ing information from a current or prospective employee’s profile. For instance, “a method employers have been known to use involves the use of their current employees’ Facebook accounts to search applicant’s profiles in which they are in the same network, such as the same college. The employee may have reserva- tions about probing the profiles of their younger college mates, but do so anyway for fear of repercussions from their employer due to noncompliance.”41

To a limited extent, a recent court case, Pietrylo v. Hillstone Restaurant42 challenged this common, unethical practice in a court of law. Two employees at Hillstone Restaurant decided to create a MySpace page where other fellow employees could join and express their grievances with the management. The page was protected by the password and none of the managers were invited to join. However, one manager eventually learned of the MySpace page and, after repeated attempts, convinced an employee to reveal the page’s password. Shortly thereafter, the creators of the MySpace page were fired for “damaging employee morale and violating the restaurant’s ‘core values. ’”43 The two employees, Pietrylo and Marino filed a lawsuit against the restaurant alleging that its actions violated the Federal Stored Communications Act. In addition, both plaintiffs argued that the restaurant’s actions also violated their right to privacy. The jury found that the restaurant did violate the federal Stored Communications Act, due to the fact that the restaurant compelled the employee to allow them unauthorized access to stored electronic communications. However, they also found that the plaintiffs had no reasonable expectation of privacy within the MySpace group. The jury reached this conclusion by following the third party doctrine, which states, “Knowingly revealing information to a third party relinquishes Fourth Amendment protection in that information.”44 This case illustrates how the unethical practice of coercing an employee to reveal communication on a social networking working website is punish- able in a court of law. Yet, this can only occur if the website is protected by a password and stored communi- cation is being sought. Unfortunately, Facebook and MySpace profiles do not fall under the category of stored communication. Thus, limiting the employer’s responsibility in coercing a fellow employee to allow him or her to view a current or potential employee’s profile and bypass privacy settings.

In addition, “a [second] means of accessing Facebook profiles and by far the most invasive is to hack into the Facebook database. This may not be such a hard task for many tech-savvy IT employees at most companies. By this means the company would have access to any profile they wish.”45 The ease with which IT employees can hack into information stored on Facebook is further highlighted by the actions of the two M.I.T. students previously described in this comment. If two undergraduate students were able to access over 70,000 profiles using a program they designed, it is not unreasonable to suggest that it is not difficult for a company’s IT professionals to easily find ways to bypass Facebook and MySpace’s privacy controls.

VIII. Application of tort law

In his comment, A Social Networks Theory of Privacy46, law professor Jacob Strahilevit contends

40 C. Wiley, “Facing the Consequences of Facebook.” University of Dayton. 22 Nov. 2006. 4 Mar. 2007, http:// www.udnews.org/2006/11/facing_the_cons.html.

41 Engler, Peter, and Peter Tanoury. Employers Use of Facebook in Recruiting. Publication. Ethica Publish- ing. Web.

42 Pietrylo v. Hillstone Restaurant. LexisNexis. United States District Court District of New Jersey. 24 July 2008. Web.

43 Pietrylo v. Hillstone Restaurant, United States District Court District of New Jersey. 44 Pietrylo v. Hillstone Restaurant, United States District Court District of New Jersey. 45 Engler and Tanoury, Employers Use of Facebook in Recruiting.

46 Strahilevitz, Lior J. “A Social Networks Theory of Privacy.” The University of Chicago Law Review 72.3: 919-88. JSTOR. Web. Summer 2005.

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