Employer Use of Facebook and Online Social Networks to Discriminate against Applicants for Employment and Employees: An Analysis Balancing the Risks of Having a Facebook Account and the Need for Protective Legislation
Delaney, James, Labor Law Journal
As technology advances, our use of computers, tablets, mobile phones, and smart phones continues to grow at an astounding rate. These advances also helped Facebook and other online social networks grow at a tremendous pace over the past decade. The growth of online social networks such as Facebook has brought about unforeseen changes in multiple facets of society affecting the legal rights of its users. Countless plaintiffs are filing lawsuits where Facebook acted as the medium in which the disputed problem or event arose. The twist to these lawsuits is nothing more than the fact the information is posted online. One recurring issue in these lawsuits is the privacy boundary which third parties, such as employers, may cross to obtain any personal information a user chooses to entrust to a social network like Facebook.
If a user chooses to post the information publicly on Facebook that is his or her choice. Yet, there have been many situations where employers have requested or even required applicants for employment or employees to provide their username and password to the online social networks to which they belonged. Some situations also involve employers asking an applicant or employee to log in to their Facebook account to allow the employer to search through that account. Even worse, some employers have refused to hire an applicant or disciplined or discharged employees, based on a refusal to supply the information.
First, this paper will focus on Facebook's creation, growth, and how prevalent it is in our society today. Then, this paper will discuss the privacy (or lack of) which Facebook offers users. Next, the discussion will center on how employers have used Facebook: (1) to screen applicants before they are interviewed,1 (2) as part of the interview process by asking applicants to disclose their personal Facebook login information,2 and (3) how employers have used Facebook as grounds to terminate employees for speech posted on Facebook about their job3 or supervisors.4 Then, this paper will focus on current and proposed legislation that is intended to protect the privacy rights of the applicant or employee by prohibiting employers from asking for any personal online social network account information. Finally, it will discuss the extent to which each user is responsible for preventing unwanted people, especially employers, from viewing their private information.
I. Facebook's Prevalence in Our Society and UnderstandingYour Facebook Privacy
Could you imagine having an employer ask to view your entire Facebook account? All your personal photo albums, conversations, and interests would be accessible to someone who might be the last person you would want with that information. For some people, this is equivalent to allowing a stranger to conduct an interview in your house, while you confide your secrets and show them your family pictures of the good times, and the bad. Since Facebook allowed public searches in 2006, some employers have used Facebook to screen applicants for jobs. Sometimes this has even cost the user an interview.5 Employers not only screen applicants but have also used Facebook to monitor employees' speech and activities.6 An employee's speech on Facebook has led to termination after the employee spoke negatively about customers at her job.7 Another frustrated employee was terminated for communication on Facebook to another employee speaking harshly about a supervisor.8 Numerous lawsuits arose where an employee claims they were wrongfully terminated from an activity arising from an employee's Facebook account that an employer may have disliked.9 Facebook and its prevalence in our society has created a need for protective legislation in today's employment arena to protect online social media10 users in the future from employers."
A. Facebook and Online Social Networks
Facebook and online social networks have experienced exponential growth this past decade. From 2005 to 2009, traffic to Facebook's website doubled each year.12 Facebook has become so popular that it is the second most visited website on the Internet each month.13 Facebook's presence is so pervasive in our society today that of the estimated Americans who went online in May 2012, roughly 152 million or 72% visited the website.14 Even more telling is that each person spent an average of just under seven hours per month on Facebook.15 As of October 2012, 70.15 percent of Internet users in the United States had a Facebook account.16 In July 2012, a study showed that 22 percent of the websites in the world reference Facebook.17 These growing percentages are despite the fact Facebook prohibits anyone below the age of 13 to have an account.18 Therefore, if you are reading this and have not heard of Facebook, it can be argued you are in a tiny minority.
Due to its pervasiveness, Facebook has infiltrated many areas of our lives that were not anticipated.19 On the one hand, Facebook has helped save lives,20 and on the other, has also been used as a medium for "online bullying" that has driven some users to suicide.21 Face- book has become a place where users read news articles,22 go to find advice for purchases,23 and even research medical symptoms they are experiencing.24 Facebook use has cost some people their jobs25 and prevented others from gaining employment.26 Did Mark Zuckerberg envision this when he created Facebook as a student at Harvard? There has been a surge of unforeseen and unexplored issues surrounding the growth of this rapidly expanding technology and the privacy protection afforded to its users. As Facebook continues to permeate our society, it has become obvious that existing legislation is not equipped to handle the legal issues that have arisen.27
Ã. Facebook's Inception, Basic Uses, and Continued Growth
Mark Zuckerberg created Facebook in February of 2004 while he was a student at Harvard Uni- versity.28 Originally named "Thefacebook.com," "The" was dropped once Facebook gained popu- larity. The word "Facebook" has become a verb in some conversations today.29 Even a movie was created surrounding the creation of Facebook and Zuckerberg's role as a founder.30 When Facebook was first created, it was only open to students at Harvard.31 Within the first month, more than half the student body had joined the website.32 Facebook soon after opened up user eligibility to college students, and in 2005, to high school students.33 On September 26, 2006, Facebook opened access to anyone with an email address who was over the age of 13.34 Opening the website to more people allowed Facebook to maintain an exponential growth rate, growing from Harvard's campus in 200435 to one billion monthly active users (MAUs) as of October 2012.36 This is not enough for Zuckerberg, who wants to connect the entire world to Facebook.37 Facebook is the second most visited website on the Internet in the United States, second only to the search engine Google.38 By September of 2012, there were 600 million MAUs who used Facebook mobile products.39 It is estimated as ofjanuary 2012, Facebook's mobile application on the iPhone accounted for 10 percent of all data used by iPhones.40 When reading these numbers, keep in mind that Facebook is blocked in China.41
The actual Facebook website design has evolved since its original creation.42 However, the main feature which has not changed is that each user gets a unique identifying webpage, or a "profile."43 This profile allows the user to choose various pieces of personal information which they want to include on their Facebook profile web- page.44 Some basic information usually includes a user's sex, name, email address, and personal photograph.45 It can also include information such as the user's age, sexual orientation, religious or political views, or the user's favorite type of music, books, sports, and activities that particular user likes.46 Each user may choose if this information is shared with the public, a group of friends, or no one at all.47 However, as will be described later, Facebook has been an evolving landscape and has caused many privacy issues to arise.48 Once a person is a registered user on Facebook, he or she can request, and receive requests from other Facebook users to be "friends."49 Addition- ally, a Facebook user can "post" information to their profile by entering text, a link to a website, a picture, and other announcements from their Facebook activity whenever they choose.50
Facebook is virtually limitless as to the amount of data it allows its users to upload, such as pictures and videos.51 A user can organize all their pictures and share them with the public or their "friends" if they choose.52 As of March 31, 2012, over 300 million pictures are uploaded to Facebook on average every day.53 In April 2012, Facebook bought the software company Instagram whose software application allows its users to upload pictures to the Internet.54 On average a new user joins Instagram every second, where users post an average of 5 million photographs a day.55 This truly demonstrates how Facebook users enjoy sharing their personal memories and storing their digital media on their Facebook profiles.
As more people have begun to use Facebook, many issues have arisen from this new type of social interaction. "Online bullying" has become more prevalent as mediums such as Facebook provide a faster way to communicate with your peers and acquaintances.56 People have even had their lives saved by posting an emergency "Status Update" on their Facebook profile.57 Almost 75 percent of users now consult Facebook to gain opinions on products they are interested in pur- chasing and almost half have tried a new brand based on these recommendations.58 Facebook us- ers can post links, photos, and videos which they find interesting, thus spurning their "friends" on Facebook to gain interest by clicking the articles which have been posted.59 There are over one billion comments made on Facebook per day.60 More people are starting to access news through Facebook.61 Additionally, people who have a troubling symptom or illness have been using Facebook more often to seek medical advice and gain medical knowledge.62 As Facebook grows, an outside observer begins to see that Facebook users trust or rely on their Facebook "friends" for advice, information, and general knowledge.
Facebook's future is interesting because it is becoming more and more engrained in our so- ciety. There has been speculation that Facebook may be used next as a banking platform.63 Fur- ther, shortly after Facebook had its initial public offering on the NASDAQ, it was rumored it may create a mobile smart phone.64 Even more tell- ing, for the 2012 presidential elections, the state of Washington allowed its citizens to register to vote through Facebook.65 CNN also said they will incorporate Facebook into the election so users may post their political views through an application called "I'm Voting."66 It may even be possible to serve a lawsuit over Facebook in the future.67 Some countries in the world have already accepted it as a viable means to serve a lawsuit for those who are 'only online.'68 One thing can be said for certain: Facebook has altered the landscape of social behavior and continues to do so at astounding rates.
C. Facebook's Privacy Issues: Past, Present, and Future
Facebook has over one billion MAUs.69 This is despite the fact Facebook is blocked in China.70 Simply put, Facebook controls and stores a lot of people's personal demographic information. This massive population of users attracts advertisers,71 Facebook's main revenue stream.72 Facebook had several different issues in the past with protecting the privacy rights of their users.73 It can be speculated, and will later be discussed, that a conflict of interest exists between Facebook's desires to generate 'substantially all' revenue through advertising and to protect their users' privacy. In the past, when Facebook introduced new features like the Newsfeed, Facebook altered users' privacy settings without warning,74 causing Zuckerberg to publicly apologize to users.75 Some of these changes were undertaken prematurely and without adequate consideration of their users' privacy.76 Then, Facebook only changed the settings back after user reaction.77 In November 2011, Facebook settled with the FTC because it deceived users of their actual privacy by changing its website so certain information users designated as private was made public, stating certain applications were secure when they were not, and by offering advertisers more informa- tion than necessary.78 Even after this settlement, Facebook had to settle again after it was "alleged the site's "Sponsored Stories" feature publicized users' "likes" without compensation or the abil- ity to opt out."79
One of these changes to Facebook was the introduction of the "Newsfeed" which created controversial user privacy violations,80 and argu- ably still does.81 The "Newsfeed" displays any information you or your friends choose to share based on your personal privacy settings (Face- book has many privacy settings which control what personal information, posts, photographs, tags or how you interact with other Facebook applications are displayed to others).82 The "Newsfeed" is basically a live stream of informa- tion displayed when you first log into Facebook containing all your friends' recent activity. Ad- ditionally if a user "tags" another user in a pho- tograph or other post, this would be displayed on the Newsfeed. Tagging is an action on Facebook where a user may include or link a friend to a specific photograph or post. When it was first im- plemented, users were uneasy with the amount of information that was publicly displayed on their Newsfeeds about each of their friends.83 In January 2012, when Facebook introduced the new "Timeline"84 as the personal profile page of each user, more privacy issues arose,85 some of which were said to violate the FTC settlement in 2011.86 However, altering your privacy settings may still not guarantee that your privacy would be ensured. Before continuing, please consider the following hypothetical situation.
The Haunting Photograph. You are out for the night with your friend having a great time and want to remember it with a photograph. Your friend has a stranger take a picture of both of you. Over the next few days, like a lot of people you know, your friend uploads pictures from that night onto Facebook and "tags" you in several pictures. After seeing a particular picture on Facebook you realize embarrassingly that you forgot to zip your pants (or it wasn't your best looking picture, or had too much to drink, or any moment which you would not want to share openly with others besides those present when the picture was taken). You take the appropriate steps to "untag" yourself from the picture and check your privacy settings. You wonder who saw that picture before you were able to untag yourself. At least you have performed some damage control quickly, limited who could have seen it, and no one else will be able to see that picture in your Facebook photographs.
No, that is not necessarily true. The nature of how social networks connect people has presented interesting social situations humans have not seen before. Remember, 70 percent of American Internet users access Facebook. The realization has grown that, as people "friend" each other and "like" different things on these social networks they gain mutual friends and exposure to other users. As more people become connected and have more mutual friends and share common interests, the likelihood of you being connected to a friend of a friend increases. Yes, you can prevent your friends from view- ing your photographs or other's photographs in which you are "tagged" in via your profile. However if your friend does not change his or her privacy settings, any friend of theirs may access the picture via your friend's profile. If your friend's privacy settings allowed for their posted photographs to publish on the Newsfeed, your picture would still appear even if you were untagged, and any mutual friends or friends of your friend would see this picture.
Zuckerberg openly admitted that Facebook has been clumsy about how they have brought changes to the platform.87 Is it fair for a company like Facebook with one billion MAUs, to be "clumsy" when it comes to their users' privacy? Facebook has not explored all the legal repercus- sions to their business decisions regarding users' privacy.88 In May 2012, Facebook settled another class action lawsuit (after being sued for $15 bil- lion in a class action the week before89) because it allowed third parties to use a Facebook user's name and image to generate advertisements, which violated the user's rights.90 This is only the tip of the iceberg when it comes to litigation, and the concerns their users' have for violation of their privacy rights.91 What if you were termi- nated from your job because of something you posted on Facebook that you thought would be private but was not?92
Despite all these privacy issues, Facebook con- tinues to grow and in June 2012 had an average of 552 million daily active users.97 These users produce over 3.2 billion "Likes" and "Com- ments" per day.98 A staggering number for Zuck- erberg's lofty goal of having Facebook become an indispensable medium of global communi- cation.99 However, this goal may be too lofty for it to face alone without legislation to protect its users in the many areas of society Facebook has affected. Imagine if you were refused a job or lost your job because of a photograph or for making one of the 1 billion comments made on Facebook per day.
II. Occupational Hazard: Employers Monitor Social Networks to Screen Applicants for Employment and Punish or Terminate Employees
Your activity on Facebook could cost you a job before you are even interviewed.100 One person whose Facebook persona included interests of "smokin' blunts," sexual, and other illicit activi- ties had their Facebook profile viewed by their potential employer.101 Although this may have been the college student's idea of a joke at the time, he was never interviewed for the job.102 The pictures of that fun night out with your friends might also cost you an interview.103 A CareerBuilder survey concluded in March 2012, showed 37 percent of employers use social me- dia to research potential job candidates and 11 percent plan to start.104 Another survey showed 91 percent of employers used social media to screen applicants.105 Even more startling, the same survey showed 69 percent have rejected the applicant because of what they saw on the person's social media account.106 Although the numbers presented vary, the fact is clear: em- ployers are looking for you on Facebook.
Judges have used Facebook to monitor law- yers who have lied and who may be breaking ethical standards by complaining about their clients on Facebook.107 One judge caught a lawyer lying about a death in the family to have a hearing continued by going on Facebook to find the lawyer went drinking and partying that weekend.108 The Florida Bar has considered and come close to requiring applicants to submit their Facebook username and information as part of its moral character application.109 Has a moment of panic swept over the Facebook user who realizes an embarrassing personal photo- graph might be sought by a future employer? Hopefully Facebook will not bring out a new update that alters the privacy settings of your photo albums during your next job search!
A. Is FacebookTurning Job Hunting Into a Job Haunting?
Imagine that you arrived safely to a job inter- view. At least you got the call for an interview, right? It must have helped that you were extra careful and set your Facebook privacy settings as high as possible. Three company representatives are conducting the employer's interview. The interview is going fantastic. You answer every question well. You even crack a couple jokes and most importantly, everyone laughs! You seem to have made a fantastic impression. Suddenly, you are asked the one unexpected question that you didn't prepare to answer. "Can you provide me with your Facebook user name and password?"
You get the impression that you will get the job, only if you give the employer your infor- mation. Then you realize that if you give the employer your Facebook information, you may not get the job if he sees what you have said to some of your friends on Facebook about a recent political issue or current event. Or even worse, the employer might see an embarrassing college photo from seven years ago that your friend tagged you in and your friend forgot to remove from his photo albums. That dreaded picture. The picture of you at your friend's frat party. Remember? The one where you passed out on the couch because you had one too many drinks, with obscene writing and drawings all over your face and arms. Or maybe that was you in the picture, the senior in the frat who was hosting the party, drawing on the drunk passed out freshman with the permanent marker. What kind of a first impression would an employer get snooping through your Facebook persona?
I. Your Facebook Activity Could Cost You Thousands of Dollars,Your Career, and Your [Online] Reputation
Employers have asked for applicants to pro- vide their Facebook login information as part of the interview process."0 Other employers have asked applicants to login and allow the employer to search through their Facebook account."1 Some employers have even gone as far as reading through personal messages and looking at personal photographs."2 For many users, this would be the equivalent of allowing the employer to know what they like, their po- litical views and religion, who their friends are, what their friends are like, then handing over a transcript of their personal conversations and sharing all their personal photographs. When did this become an acceptable part of a job interview? Employers could argue that it will help a company "weed out the bad apples" and hire better employees.113 However, an employer learning an applicant's religion, sexual orienta- tion, or political affiliation without the applicant openly disclosing this information could open the employer to liability.114
Maryland is one state that has enacted legisla- tion to protect applicants (and employees) from employers asking this question."5 Facebook's Statement of Rights and Responsibilities has one clause to address this issue stating, "you will not share your password, let anyone else access your account, or do anything else that might jeopar- dize the security of your account.""6 However, the damage may have already been done if an applicant is forced to "friend" a human resource or other representative of the employer's com- pany, thus opening up their privacy settings.117 Confiding in a third person or a "friend" on Facebook could open a user up to a variety of privacy issues, and an employer obtaining knowledge of a user's Facebook activity is just one of these issues."8
Current employees are not necessarily safe from this growing problem either."9 There has been a "distressing increase" in the number of employ- ers asking for social media login information.120 In Maryland, an officer for the Department of Public Safety and Correctional Services returned from medical leave only to have his employer demand his Facebook login information during a reinstatement interview.121 The Department had performed this procedure on over two thousand applicants and insisted this was to ensure the employee was not affiliated with any gangs.122 Since this occurrence, Maryland became the first state to pass legislation to protect applicants for employment or employees from an employer demanding online social network username and password information.123 However, some believe there should be an exception for law enforcement agencies124 and financial institutions.125
Employees have also lost jobs for personal activity on Facebook.126 Numerous lawsuits have entered the judicial system with unanswered questions concerning the proper grounds an employer has for punishing or terminating an employee for their action on Facebook.127 These lawsuits vary on the basis of their wrong- ful termination claims.128 One case involves an employee who was terminated or punished after using Facebook to voice and discuss various frustrations about their supervisor with other co-workers.129 Another case involves an em- ployee who was terminated after voicing his frustration about a customer.130 Here is a scary concept. Being "friends" with a co-worker on Facebook could cost you your job for posting your frustrated comments related to work.131 Facebook's Privacy page even states, "we receive information about you from your friends and others, such as when they upload your contact information, post a photo of you, tag you in a photo or status update, or at a location, or add you to a group.'"32 What if you lost your job because of some photograph or comment a co- worker posted on Facebook that implicates you?
B. Multiple Third Parties With Conflicting Interests Surrounding Your [Online] Reputation, Your Ignorance May Bring Misfortune
There are several groups that have an interest in this employment issue created by Facebook. First and foremost the Facebook user, who must have his or her privacy expectations protected so that one's online reputation does not cripple his or her ability to generate income. This group accounts for 70 percent of American Internet users and almost one out of every seven people on the planet.133 This demonstrates that many people trust Facebook to honor their expecta- tion of privacy by protecting their information. Facebook also has multiple interests to juggle. Facebook has an interest in protecting their us- ers' privacy while providing a satisfactory prod- uct so the company may continue to grow and generate revenue. Facebook also has an interest in generating revenue for its shareholders. Face- book generates 'substantially all' of its revenue through advertisements.134 Enter another party with an interest in this situation, the advertisers. Facebook provides a means by which marketers and advertisers can gather valuable information about their customers. Facebook also has an interest in keeping these marketers and advertisers happy, or Facebook's revenue could suffer. Therefore, Facebook must maintain a balance in which its users' privacy is reasonably maintained and also keep its advertisers happy enough to continue advertising.135
To give some context, consider the following. Facebook has over one billion MAUs.136 Face-book captures substantially all their revenue by attracting advertisers.137 Advertisers gain exposure to Facebook users when users post about or "like" a brand, product, service, etc. Platforms (e.g. games, applications, other software) can be created by developers and run on Facebook.138 Platforms may gain access to a user's demographic information from their applications on Facebook.139 Often, a developer for a company interested in advertising on Facebook, can create an application for their company and gain consumers' data when they interact with their application. Likewise, advertisers may create an application for the user to interact with, and thus, gain valuable demographic information sought by the advertiser.
Part of the FTC settlement concerned Face-book's giving third-party advertisers much more demographic information than was required, and at some point even all that user's friends' demographic information. Facebook has an interest in generating revenue and profit for its shareholders, and a responsibility to protect their users' privacy. This can expose Facebook users to a privacy risk if Facebook continues to make alterations to their website which change default privacy settings without informing users. Facebook generates 'substantially all' their revenue through advertisements.140 As mentioned, the Newsfeed and other Facebook features have broadcasted Facebook users' purchasing decisions and other personal information to their friends on Facebook. This creates a conflict of interest because Facebook's revenue model relies on the access it provides third parties to its one billion users and their valuable personal user information. Facebook has neglected to protect users' personal information from third parties, like advertisers, who gain valuable information from gaining access to Facebook's users. Although third parties, such as employers, may claim to have an interest in viewing an applicant's or employee's Facebook or social media, few groups have demonstrated that this is a justifiable interest.
Applicants seeking employment must be mindful of the personal information they chose to publicly display and share on social networks. If an applicant has not changed his or her privacy settings on Facebook, the default privacy settings are likely set for everyone to view.141 Just because a user has changed their privacy settings, does not ensure that Facebook hasn't altered them with a new update.142 If Facebook chooses to make a change to everyone's privacy settings, the only policy in place requires Facebook to give their users notice by posting the changes on the Facebook Privacy page.143 After the notice is posted, users have seven days to vote on it.144 The policy states that Facebook will honor a request not to enact the changes if a vote is commenced by users, and the "vote will be binding on us if more than 30 percent of all active registered users as of the date of the notice vote.'"45 To put it in perspective, at Facebook's current number of active registered users, 30 percent of active users would be 300,000,000 users.146 The last revisions Facebook proposed to their Statement of Rights and Responsibilities and Data Use Policy garnered a staggering 0.038 percent or 342,632 of its 900 MAUs at the time.147 The recent settlement with the FTC has required Facebook to make changes and provide that some options for privacy changes must be on an "opt in" basis.148 However, this does not require Facebook do so for every update or change.149
Staying on top of the latest Facebook privacy settings is an almost overwhelming task. One study showed that nearly half of social network users keep the network's default privacy settings.150 Another study showed 13 Million U.S. Facebook users "do not use or are unaware of the sites privacy control.'"51 Since their settlement with the FTC, Facebook has tried to comply with the settlement by offering their users an explanation of their privacy settings.152 Their website offers a video explaining your privacy settings.153 This video is also two minutes long.154 Additionally, Facebook has an extensive website with several links and explanatory pages; however, it would take the average user a couple hours to navigate the page and absorb the information.155 Would this complex set of instructions guarding the privacy of over one billion users be needed if Facebook were a social network absent of advertisers? One can begin to imagine a see-saw on a playground, with the happiness of Facebook's users on one side, and the advertisers on the other. How much can Facebook pile on before users are weighed down with the burden of guarding their information so much they stop having fun?
As mentioned, Facebook has publicly declared that it generates 'substantially all' of its revenue through advertisements.156 It is thus easy to see that it is in Facebook's interest to share user demographic information with these advertisers.157 Likewise, these privacy settlements that have cost the company millions for violating their users' privacy158 could in fact be seen as small investments toward satisfying their overall customer, not the user, but the advertisers. Generating revenue serves the interests of the shareholders. The irony is that this revenue may come from violating these shareholders' privacy by oversharing their Facebook demographic information with advertisers. This conflict of interest could cause users to question Facebook's true interest in protecting their information and privacy, and thus, it is important to set up legislation and regulations to protect users from conflicting interests. Without the proper protection, an outcry may occur after Facebook changes users' privacy settings yet again without notice to users,159 a public apology may follow, but the damage was done, advertisers (or employers) were able to gain access to personal information of a user's Facebook friends'60 because Facebook allowed it through their default settings.
Employers claim to have an interest in the visibility of an applicant's or employee's social media profile, such as their Facebook account. Employers have used this medium to prescreen applicants to discover if they fit company culture, have "badmouthed a prior employer," have lied about their qualifications, made discriminatory comments, to find information if the person drinks or does drugs, or as other reasons not to hire.161 Organizations such as law enforcement claim to have an interest in screening their applicants and employees on social media networks.162 Financial institutions such as large banks and securities firms have also shown interest in continuing to monitor applicant's and employee's personal social media accounts to assure transparency and discourage foul play.163 However, most employers provide little reason to justify asking for an applicant's or employee's social media information.
C. Who Will Win the War Over Your Priceless Privacy and Information?
A classic battle to pass legislation has and will most likely ensue with lobbying164 from different sides because there is an interest in users' personal Facebook information. 165 However, Facebook has 70 percent of Internet users in the United States as active monthly users.166 This presents a common sense argument that the most important party needing protection for activity on social networks is the user, not the advertiser, employer, or other institution seeking more information simply because it is contained on the Internet. Although the Internet may appear public, this does not allow social media users to lose privacy rights to unwelcome third parties because users confide their personal information on Facebook.167 Not surprisingly, the FBI also wants Facebook to add "back doors" which the agency can use to eavesdrop on users to monitor suspected criminals.168 Financial institutions insist they want their employees' Facebook and social network information to prevent their employees from providing others with trade secrets and opportunities for inside trading.169 However, a logical counter argument may be made where these financial institutions place internal policies in place that permit or prohibit various activities of their employees.170 Or, if their employee is required to have a social network account as an agent of the company, the employee have one account for business and a separate personal account where work related conversations and actions are prohibited.171
Employers claim they have an interest in this information while hiring because they use it to see if the applicant presents himself or herself professionally, is well rounded, and fits the company culture.172 However, some employers may require for certain jobs that an employee have an active position on social networks as an agent of the employer and maintain a social network page.173 Therefore, employers may have a valid ground to demand disclosure of employment related social network usernames and passwords. Advertisers love the information for obvious reasons such as exposure, views, recommendations, and demographics. However, Facebook has 19 percent of its users in the United States.174 To keep these users happy, it is in Facebook's interest to lobby for legislation to protect their <