Updated 3:25 p.m.
Two U.S. senators are asking the Department of Justice to investigate whether companies are breaking the law if they ask potential employees to provide their user names and passwords to social networking and email sites like Facebook.
Sen. Charles Schumer (D-N.Y.) and Sen. Richard Blumenthal (D-Conn.) announced Monday that they wrote letters about the issue to Attorney General Eric Holder Jr., as well as the Equal Employment Opportunity Commission, in response to recent media stories.
In the letter to Holder, the senators say that two courts have found that supervisors may be subject to civil liability under the Stored Communication Act when they request employee login credentials and access otherwise private information with those credentials.
“Although these cases involved current employees, the courts’ reasoning does not clearly distinguish between employees and applicants,” the letter states. “Given Facebook terms of service and the civil case law, we strongly urge the Department to investigate and issue a legal opinion as to whether requesting and using prospective employees’ social network password violates current federal law.”
In the letter to the EEOC, the senators touched on possible unlawful discriminatory hiring practices if the social sites are used to see personal communications, religious views, national origin, family history, gender, marital status, and age.
“If employers asked for some of this information directly, it would violate federal anti-discrimination law,” the letter states. “We are concerned that collecting this sensitive information under the guise of a background check may simply be a pretext for discrimination.”
The DOJ and the EEOC both said the agencies would review the letter once the agency received it, but had no further comment.
The issue became a hot topic after an Associated Press article last month described the experience of one Seattle man who refused to turn over his password and withdrew his application for a job. The article also indicated that “other job candidates are confronting the same question from prospective employers, and some of them cannot afford to say no.”