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Recruiting Law: Privacy and Sourcing
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I was at the Recruiting Roadshow a few months ago and saw a really interesting panel on sourcing with great ideas and tips by Chris Murdock, Dan Harris, and Mark Tortorici. I'm not a recruiting sourcer, but I use many of the same tools to find witnesses and research the participants in a lawsuit including the judges. (Lawyers are alway on the blunt edge of technology, but they are catching on.)
Some of the tools and tips they offered were methods to go through the back door of various websites like Linkedin and Facebook to find information that would not be available directly because of a user's privacy settings. It got me thinking about privacy rights and what privacy settings really mean.
Is it okay to go view someone's photographs on Facebook when you weren't invited to? My Midwestern sensibilities were disturbed when I realized that anyone could peek into my life and see what my kids look like. People I don't know could see comments on my status because they happen to be friends with my friends.
The obvious response is that if I put the information up there, I should expect people to look at it. If I don't like that, then I shouldn't post it on Facebook or any other social networking sites. (I am now a happy member of Facebook who mostly doesn't care who sees my stuff. I get to see my friend's kids and my kid's friends. I get to know how people I care about are doing. I like that.)
But the legal issues about privacy are more complex. What is a privacy right and does it apply to my information on the internet?
The US Supreme Court first recognized privacy rights in 1891 in Union Pacific Railway Co v. Botsford. The Court decided that a search of your body is an invasion of privacy. No kidding. But if there's not a law against it, then you can do it. Right?
It got trickier when the police decided to enforce laws against interracial relationships and using contraception by barging into people's bedrooms to see who they were having sex with and whether they were using birth control. So in Griswold v. Connecticut, the Supreme Court decided that maybe the Bill of Rights had a "penumbra" right to privacy, at least as to sexual conduct. That was 1965. Of course it's still illegal to have gay sex in many states. And if you become pregnant from all that sex, the issue of abortion continues to create social, political and religious debate about privacy.
At least ten states (mostly in the West) have made a right to privacy part of their state Constitution. There are also numerous privacy laws that relate to specific information such as medical records, tax returns, bank statements and personnel and employment information. And there are starting to be laws protecting privacy on the internet, especially as it relates to children. Here are some of them.
But for now, there aren’t any laws that really apply to searching for, finding and using information that exists on the internet, especially in fairly public forums like social network sites.
Instead, the primary legal vehicle governing the use of information on social networking sites is the user agreement. Even though no one ever reads them, violation of these user agreements can come with both financial and criminal penalties. For example the recent MySpace case involved a mother who posed as a teenage girl to harass a rival of her daughter and ended with the girl's suicide. That case was prosecuted under criminal law for hacking and violating the user agreement.
The reality is that technology offers more and faster ways to communicate that involve all kinds of digital media and thing are far less private than ever before.
Where once we were worried about our reputation, now we promote our personal brand. Revealing personal information is now valued as transparency and authenticity. Networks like Twitter allow a minute by minute report on everything that happens. Naval gazing has sunk to all new lows as we count our pubic hairs in public.
Depsite concerns of journalists and lawyers, the legal questions about privacy are not going to be about whether the information should be available or findable—it already is. The legal questions will relate to who can control that information, use that information and who has the obligation to protect it.
From a legal perspective, I don't see a lot of issues for sourcers who use search engines to find data about people on the internet, including social networking sites where those people post the data. It would be smart to know what the user agreements actually say. And it's always a good idea not to creep-out candidates by knowing too much about them before they've ever met you. But I don't see liability for finding, knowing or using the information to see if someone wants a job.
Just don't use the information to have sex. You might ruin your personal brand.
Heather Bussing is a California attorney who has practices employment and business law for 21 years.
Some of the tools and tips they offered were methods to go through the back door of various websites like Linkedin and Facebook to find information that would not be available directly because of a user's privacy settings. It got me thinking about privacy rights and what privacy settings really mean.
Is it okay to go view someone's photographs on Facebook when you weren't invited to? My Midwestern sensibilities were disturbed when I realized that anyone could peek into my life and see what my kids look like. People I don't know could see comments on my status because they happen to be friends with my friends.
The obvious response is that if I put the information up there, I should expect people to look at it. If I don't like that, then I shouldn't post it on Facebook or any other social networking sites. (I am now a happy member of Facebook who mostly doesn't care who sees my stuff. I get to see my friend's kids and my kid's friends. I get to know how people I care about are doing. I like that.)
But the legal issues about privacy are more complex. What is a privacy right and does it apply to my information on the internet?
The US Supreme Court first recognized privacy rights in 1891 in Union Pacific Railway Co v. Botsford. The Court decided that a search of your body is an invasion of privacy. No kidding. But if there's not a law against it, then you can do it. Right?
It got trickier when the police decided to enforce laws against interracial relationships and using contraception by barging into people's bedrooms to see who they were having sex with and whether they were using birth control. So in Griswold v. Connecticut, the Supreme Court decided that maybe the Bill of Rights had a "penumbra" right to privacy, at least as to sexual conduct. That was 1965. Of course it's still illegal to have gay sex in many states. And if you become pregnant from all that sex, the issue of abortion continues to create social, political and religious debate about privacy.
At least ten states (mostly in the West) have made a right to privacy part of their state Constitution. There are also numerous privacy laws that relate to specific information such as medical records, tax returns, bank statements and personnel and employment information. And there are starting to be laws protecting privacy on the internet, especially as it relates to children. Here are some of them.
But for now, there aren’t any laws that really apply to searching for, finding and using information that exists on the internet, especially in fairly public forums like social network sites.
Instead, the primary legal vehicle governing the use of information on social networking sites is the user agreement. Even though no one ever reads them, violation of these user agreements can come with both financial and criminal penalties. For example the recent MySpace case involved a mother who posed as a teenage girl to harass a rival of her daughter and ended with the girl's suicide. That case was prosecuted under criminal law for hacking and violating the user agreement.
The reality is that technology offers more and faster ways to communicate that involve all kinds of digital media and thing are far less private than ever before.
Where once we were worried about our reputation, now we promote our personal brand. Revealing personal information is now valued as transparency and authenticity. Networks like Twitter allow a minute by minute report on everything that happens. Naval gazing has sunk to all new lows as we count our pubic hairs in public.
Depsite concerns of journalists and lawyers, the legal questions about privacy are not going to be about whether the information should be available or findable—it already is. The legal questions will relate to who can control that information, use that information and who has the obligation to protect it.
From a legal perspective, I don't see a lot of issues for sourcers who use search engines to find data about people on the internet, including social networking sites where those people post the data. It would be smart to know what the user agreements actually say. And it's always a good idea not to creep-out candidates by knowing too much about them before they've ever met you. But I don't see liability for finding, knowing or using the information to see if someone wants a job.
Just don't use the information to have sex. You might ruin your personal brand.
Heather Bussing is a California attorney who has practices employment and business law for 21 years.
Tags: privacy, recruiting law, sourcing, tutorial tuesday
Replies to This Discussion
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Permalink Reply by Maureen Sharib on -
Heather, we're lucky to have you!
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Permalink Reply by Jim - medXcentral on -
In the end.. in my opinion.. "I" must take responsibility for each and every move "I" make... in "real" life and in "virtual" life. It is "my" personal obligation to learn about any system where "I" enter "my" information. Do I always follow that creed.. well.. admittedly, NO. Like Heather said... "nobody reads them." However, personal accountability should not be transcended by laziness. Therefore, if something happened on a system where "I" did not read the terms, then, "I" should not cry when authorized access (as described in the TOS) and/or use of the system results in something "I" don't agree with.
That said; I think smart systems will concentrate on educating new users before users join. Today, instant gratification rules. Believe me.. I'm a sucker for instant gratification too. I can admit that. However, my weakness for instant gratification does not give me any right to pass off personal accountability onto the system. That's like blaming the car maker... or the lock maker... for my car being stolen or broken in to because "I" did not learn to lock the doors...and actually lock them.
This does not mean that system designers are off the hook. They should meet us in the middle by making it easier for us users to understand what we are getting into....BEFORE we get into it. Ah.. but that might negatively affect the bottom line.. in the short run. There's that pesky instant gratification issue again.
ok... I'm done rambling for now. I'm off to read a few dozen TOS's and Privacy Statements.
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Permalink Reply by Heather Bussing on -
Great points Jim. This is exactly where we are going to see the law develop.
In the meantime, I woke up and realized I should have called this article "Cybersleuths or Cybersluts."
(Thanks to Shally for the term cybersleuth.)
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Permalink Reply by Jennifer Scott on -
Excellent post! THANKS!
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Permalink Reply by Kumar Bodapati on -
Heather,
thanks for great stuff- Respect.
Kumar Bodapati.
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Permalink Reply by Bob Lee on -
You have to make a decision about how much personal information you want in the public domain. Once there it's like plastic, it lasts forever.
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Permalink Reply by Amitai Givertz on -
If we have Shally to thank for Cybersleuths who do we have to thank for Cybersluts? Just wonderin'.
Heather Bussing said:Great points Jim. This is exactly where we are going to see the law develop.
In the meantime, I woke up and realized I should have called this article "Cybersleuths or Cybersluts."
(Thanks to Shally for the term cybersleuth.)
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Permalink Reply by Heather Bussing on
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Maybe a cyberslut is someone who makes "friends" indiscriminently in social networks. Or maybe that's the entire point of social networking-- to become a cyberslut.
Many people intentionally build networks far and wide with people they don't know on the premise that it will beneficial to business somehow--like Linkedin or Dave Mendoza or here at rbc.
But I think its important to think about whether you want to segregate your business networks vs. your family and social networks so that different people get different information. For example Steve Rothberg regularly posts professional links on his Facebook page and ocassionaly uploads a picture from a camping trip to show us that he doesn't always look perfect. It's professional with a nice personal balance. John Sumser and Maren Hogan are experimenting with blending kids, colleagues and everything in between on the premise that "this is who I am and showing you that makes our relationship more genuine."
On my facebook page, I have friends, family and recruiting friends, some of my law students and one judge. But the truth is that I don't want opposing counsel or my ex's attorney knowing when I'm out of town, so I purposely avoid making "friends" with other lawyers in my community. That is how I maintain some level of privacy even though I know they could find a lot of that information if they knew how. So that also tempers what I post.
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Permalink Reply by Heather Bussing on
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Hey Ami, I just made up the work cyberslut this morning. Though I'm sure others have thought of it.
The word I made up last week was weaselibrium to describe the the current conditions of the courtroom in the case I'm litigating-- the weaselibrium is based on which and how many weasels are present.
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Permalink Reply by Tisha Reese on -
Very nice.
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Permalink Reply by Suzy Tonini on -
What about Glenn Gutmacher being a "Promiscuous Linker"? Isn't that the same as Cyberslut?
Heather Bussing said:Maybe a cyberslut is someone who makes "friends" indiscriminently in social networks. Or maybe that's the entire point of social networking-- to become a cyberslut.
Many people intentionally build networks far and wide with people they don't know on the premise that it will beneficial to business somehow--like Linkedin or Dave Mendoza or here at rbc.
But I think its important to think about whether you want to segregate your business networks vs. your family and social networks so that different people get different information. For example Steve Rothberg regularly posts professional links on his Facebook page and ocassionaly uploads a picture from a camping trip to show us that he doesn't always look perfect. It's professional with a nice personal balance. John Sumser and Maren Hogan are experimenting with blending kids, colleagues and everything in between on the premise that "this is who I am and showing you that makes our relationship more genuine."
On my facebook page, I have friends, family and recruiting friends, some of my law students and one judge. But the truth is that I don't want opposing counsel or my ex's attorney knowing when I'm out of town, so I purposely avoid making "friends" with other lawyers in my community. That is how I maintain some level of privacy even though I know they could find a lot of that information if they knew how. So that also tempers what I post.
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Permalink Reply by Jim Durbin on
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Here's a question. When you start throwing in software like BrightKite and Twinkle, and others on the iPhone that ask for permission to map your location and show it to others, have you given away any privacy rights?
And in the long term, is it a smart thing to allow people to know when you're home, at work, on vacation, when so much data is available on where you live and how much you paid for your home?
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