Pass The Password, Please?

By Patrick Weadon

In the winter of 1637, John Lilburn, a publisher of pamphlets, was arrested by the English authorities for publishing “unlicensed books.” This was a technicality. The real reason for his arrest was that Lilburn was a promoter of “freeborn rights,” the idea that every human being by the nature of their very existence is entitled to certain legal rights which are immutable.

At his trial, Lilburn stubbornly refused to provide any testimony on the premise that it was his right not to incriminate himself. Lilburn’s then revolutionary assertion rested on the now sacrosanct idea that any information used by the authorities to condemn someone should, by law, be obtained by them and not from the person on trial.

Later, this concept would be used by Supreme Court Justice William Douglas in the 1965 case of Griswold vs. Connecticut, to support his assertion that the Constitution contained a “right to privacy.” Douglas, in issuing the Court’s decision noted that while there is no specific mention of privacy in the document, the First, Third, Fourth, Fifth, and Ninth Amendments cast penumbras, or shadows, that encompass the concept. Furthermore, he held that within those shadows are found “zones of privacy” that grant to us an implicit right to be protected from unwarranted intrusion into our personal lives.

This brings us to the topic of the recent effort by the Maryland Legislature to prevent employers from demanding Facebook passwords from applicants for purposes of determining their suitability. If we embrace Douglass’s logic, it would seem that the legislature is simply affirming a right that the citizens of Maryland already possess.

However, while we have a right to privacy, it is also the case that sometimes, reality demands that we allow exceptions in those cases where it appears warranted. With that in mind, many Marylanders believe that while the law is well intentioned, it ignores the fact that certain employers have compelling reasons to review social media content.

A prime example is the case of Christopher Boyce, the convicted spy who sold U.S. satellite secrets to the USSR in the 1970s. In 1985, Boyce testified before the Senate Select Committee on Intelligence on the topic of “How to Prevent Future Acts of Espionage.” He noted that when investigators sought information on his suitability, they talked mainly to adults who had known him as a young man and not to his peers. “Had they interviewed my friends, they would have found out I was smoking pot at age 16 and that I had experimented with other drugs … Had they asked my friends what I thought of the U.S. government and particularly the CIA, I never would have gotten a clearance.”

I would submit to you, my friends, that intelligence, law enforcement, social services and a host of other organizations have a legitimate interest in ensuring their employees meet a certain standard. For these kinds of organizations there is no margin for error. Ergo, it just might be appropriate for them to examine how applicants have conducted themselves when they tweet on Twitter or post on Facebook.

So do job applicants in the state of Maryland have a right to privacy? The answer is yes. Conversely, do certain organizations in our state have a compelling state interest to use social media to determine an applicant’s suitability for a position? The answer again is yes. With this in mind, it is my view that the law needs to be tweaked. As is so often the case, we as a society must once again seek to find that delicate balance point between liberty and security.