Can we ask for applicants’ social media passwords as part of the recruiting process?

Under the Stored Communications Act, access to information that is not stored on a company server (which would include information on Facebook, Twitter, LinkedIn, MySpace, etc.) must be given by the owner freely. Neither regulations nor case law define what constitutes freely given access, but if an employer requires a password as a condition of employment or as a condition to be considered for employment, this isn’t likely to be considered freely given access.

In addition to this interpretation of federal law, many states have adopted legislation prohibiting employers from requesting or requiring social media passwords or account information.

Even where the practice isn’t clearly illegal, employers who have implemented a policy of asking for the social media passwords of employees or applicants have been met with negative publicity, and many withdrew the practice as a result. When investigating an individual’s background, it may be best to stick to information that is publicly available online.