Federal Government Faces Lawsuit Over Social Media Monitoring

Social media has become the cornerstone of the internet today, with some even designating such digital spaces as the new "town square" for public discussion. Yet many still maintain more private social media profiles, and the humble origins of many platforms mean most users still feel that social media is a part of their private, personal life. Even so, what people post on these platforms is not without consequence, and employers may take an interest in conducting a social media background search. 

A new lawsuit filed against the federal government offers an opportunity to pause and reflect on the potential risk of creeping overreach in such screening procedures. The Brennan Center for Justice, based at NYU, filed a lawsuit against the government over several agencies stonewalling legal and legitimate Freedom of Information Act requests.

In 2021, the Center filed FOIA requests seeking to better understand how the Department of Homeland Security and Immigration and Customs Enforcement screen social media during their background check process. They sought information about three vendors the departments used, including what information was collected and whether those services were used besides the context of a hiring background check. With many departments screening social media, there are concerns surrounding government overreach into private postings that could be used against individuals in the future. 

Social Media Checks Remain on Shaky Ground

For private employers, the possibility of the government expanding social media monitoring beyond the context of hiring should highlight the risks of these procedures. When examining a candidate's social media profile, there is always a risk that you will encounter potentially prejudicial information—information that a candidate could later claim caused you to discriminate against them as a member of a protected class. That's not to mention that some states and locales have gone so far as to make it illegal for employers to ask for a candidate's social media information as part of the screening process. It's worth considering whether the information you can uncover this way outweighs the risks.

Monitor Your Industry's Best Practices

Despite those risks, not every industry shies away from screening candidates or even conducting ongoing monitoring of posts for content that could damage a brand's reputation. Many people have lost their jobs for social media posts, from those engaged in racist behavior to those sharing evidence of their own wrongdoing, drug use or violence. 

There are many legitimate reasons for companies to have concerns about such behaviors. As such, businesses should monitor industry trends, watch how others respond to these concerns, and follow best practices whenever they become well-defined.

Consider What Job Applicants Think About Social Background Checks

Most job candidates expect to conclude a background check to secure a job—but most won’t be happy to reveal their private online life. As the government faces this lawsuit, it's worth considering the optics of social media background checks: government or business, the public still often views these procedures as invasive and unnecessary. A company enforcing such checks might struggle to attract as many applicants as hoped.

For now, companies should reinforce their usual screening efforts through criminal background checks and monitor for any changes or legislation in this area. The future of social media screening still needs to be settled.