I believe I can see the future
Cause I repeat the same routine
I think I used to have a purpose
But then again
That might have been a dream
From Every Day Is Exactly The Same by Nine Inch Nails
In case you were feeling safer, more secure and comfortable these days with social networking allow me [with apologies to Stephen Colbert] to Keep the Fear Alive. Just about the time you start feeling more complacent because crack programmers are slowly but surely plugging the holes in the privacy sieve that is Facebook, stories like these rear their ugly heads.
Exhibit A comes to us from Mike Elgan on the IT Management blog. In this entry entitled ‘Pre-crime’ Comes to the HR Dept. he writes about a new service for Human Resources [Memo to HR: While I'm mostly human if you refer to me as a resource, I will slap you so hard that your unborn resources will be well behaved] that pushes the privacy violation envelope.
A Santa Barbara, Calif., startup called Social Intelligence data-mines the social networks to help companies decide if they really want to hire you.
While background checks, which mainly look for a criminal record, and even credit checks have become more common, Social Intelligence is the first company that I’m aware of that systematically trolls social networks for evidence of bad character.
Using automation software that slogs through Facebook, Twitter, Flickr, YouTube, LinkedIn, blogs, and “thousands of other sources,” the company develops a report on the “real you” — not the carefully crafted you in your resume. The service is called Social Intelligence Hiring. The company promises a 48-hour turn-around.
Because it’s illegal to consider race, religion, age, sexual orientation and other factors, the company doesn’t include that information in its reports. Humans review the reports to eliminate false positives. And the company uses only publically shared data — it doesn’t “friend” targets to get private posts, for example.
The reports feature a visual snapshot of what kind of person you are, evaluating you in categories like “Poor Judgment,” “Gangs,” “Drugs and Drug Lingo” and “Demonstrating Potentially Violent Behavior.” The company mines for rich nuggets of raw sewage in the form of racy photos, unguarded commentary about drugs and alcohol and much more.
That’s right sports fans, just like Carnac the Magnificent Social Intelligence claims predictive abilities. Although unlike Johnny Carson’s well known character who could psychically divine unseen answers to unknown questions, these clever entrepreneurs glean their predictions by a systematic dredging of the social networking cesspool. About now you might be going all Church Lady on me and thinking “Well, isn’t that special? Isn’t it a good thing that companies avoid hiring drunken, crackheaded, violent gang bangers exhibiting bad judgement? And besides, I’m comfortably employed so why should I care?” Well, quite simply, there’s an app for that too.
The company also offers a separate Social Intelligence Monitoring service to watch the personal activity of existing employees on an ongoing basis. The service is advertised as a way to enforce company social media policies, but given that criteria are company-defined, it’s not clear whether it’s possible to monitor personal activity.
The service provides real-time notification alerts, so presumably the moment your old college buddy tags an old photo of you naked, drunk and armed on Facebook, the boss gets a text message with a link.
Two aspects of this are worth noting. First, company spokespeople emphasize liability. What happens if one of your employees freaks out, comes to work and starts threatening coworkers with a samurai sword? You’ll be held responsible because all of the signs of such behavior were clear for all to see on public Facebook pages. That’s why you should scan every prospective hire and run continued scans on every existing employee.
In other words, they make the case that now that people use social networks, companies will be expected (by shareholders, etc.) to monitor those services and protect the company from lawsuits, damage to reputation, and other harm. And they’re probably right.
That’s right, even if you are gainfully employed and your sinful, poor judgement days are long past you are not immune. Not if you ever had unsavory friends. Or have friends now on Facebook. To paraphrase Queen guitarist Brian May, when asked about bandmate Freddie Mercury‘s infamously decadent parties, you’ve been there, so you’re definitely going to hell.
But how is this legal? I mean this is the United States of America after all, state of martial law imposed after 9-11 notwithstanding. Surely the judicial branch of our government will put an end to this. Actually, no. As Exhibit B, this entry in the Electronic Discovery Law blog illustrates.
Defendant sought to discover plaintiff’s “current and historical Facebook and MySpace pages and accounts”, including deleted information, on the belief that information posted there was inconsistent with her injury claims. The court granted the motion, despite plaintiff’s privacy concerns, upon finding the information was material and relevant and that plaintiff had no reasonable expectation of privacy, and because the defendant’s need for access outweighed plaintiff’s privacy concerns.
Regarding plaintiff’s privacy concerns, the court found that production of plaintiff’s MySpace and Facebook entries would not violate her right to privacy, and “that any such concerns were outweighed by Defendant’s need for the information.” Specifically, the court found that “as neither Facebook nor MySpace guarantee complete privacy, Plaintiff has no legitimate reasonable expectation of privacy.” The court supported this finding by noting that both MySpace and Facebook warned users against an expectation of privacy. My Space, for example, warned users “not to forget that their profiles and MySpace forums are public spaces.” The court concluded:
Thus, when Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist. Since Plaintiff knew that her information may become publicly available, she cannot now claim that she had a reasonable expectation of privacy. As recently set forth by commentators regarding privacy and social networking sites, given the millions of users, “[i]n this environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.”
So see, not only does the court not recognize a reasonable expectation of privacy with respect to social networks, it actually gives that idea a name: theoretical protocol better known as wishful thinking. So next time you post anything on Facebook you need to get a bit stricter than don’t post anything you wouldn’t want your mother to see. Your mom knows about your failings and loves you anyway. Your boss and the courts, not so much.