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Not knowing others can see your Facebook comments doesn’t mean you can sue for invasion of privacy. —  Sumien v. Careflite, 2012 WL 2579525 (Tex. Ct. App. July 5, 2012)

This case goes into the category of “what you don’t know can hurt you.”  Two emergency medical technicians (Sumien and Roberts) had an exchange on the Facebook wall of another co-worker in which they made derogatory comments about a patient they had transported via ambulance.  Haynes, the sister of a compliance officer of employer of the two technicians (CareFlite), saw Roberts’ comments and was offended.  Haynes notified her sister (Calvert), who had access to the comments because she was Facebook friends with Roberts.  After Haynes complained to the management of CareFlite, Sumien and Roberts were terminated.  They sued CareFlite for unlawful termination and invasion of privacy.  The trial court granted summary judgment to CareFlite on all claims, and one of the technicians (Sumien) appealed.  The only issue in the appeal was whether the trial court should have granted summary judgment on the intrusion upon seclusion claim.

One of the requirements of an “intrusion into seclusion” claim is, unsurprisingly, an intentional intrusion into the seclusion or private affairs of another.  Sumien argued that CareFlite intruded upon his seclusion because one of its employees read his comments.  Sumien claimed to be unaware that Roberts’ Facebook friends (including Calvert) could see the comments he posted on Roberts’ wall.  Too bad, said the court.  The comments were visible to the Roberts’ friends, and so there was no intrusion into a private matter.

LegalTXTS Lesson: Know your privacy settings, and think through who could see what you share in the social media space.  This seems rather obvious, but then again, there are those who don’t do this and then claim their privacy is invaded.  The other point is that a intrusion into seclusion claim based on material posted on a social media network probably is difficult to win.  Some courts, like the one who ordered Twitter to comply with a subpoena last week, simply don’t regard posts on social media private at all.

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Can employers ask job applicants for their Facebook password in a job interview?  Employers and recruiters argue they should be allowed to vet potential employees, and let’s face it–an applicant’s social media profile is likely to be much more revealing than a 30-minute interview.  But what about the privacy rights of applicants?  Some commentators have compared password demands to requests to read a job applicant’s private mail.

Although no law directly prohibits employers from demanding access to the social media accounts of prospective employees, the practice is fraught with legal risks.  Facebook has issued a statement frowning upon password demands and warned that it will “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.”  Federal and State legislators are also considering making the practice illegal.  Sen. Robert Blumenthal (D-Conn.) has told Politico he is drafting a bill that will be ready “in the very near future.”  Password demands could also run afoul of federal law.  The New York Times reports that Sen. Blumenthal and Sen. Charles Schumer (D-NY) have asked the Justice Department and Equal Employment Opportunity Commission to investigate whether the practice violates the Stored Communications Act and Computer Fraud and Abuse Act.

The bottom line?  If you’re an employer and you demand to look at the social media accounts of your potential employees, you do so at your peril.