This past week, Facebook asked each of its 350 million users whether they wanted to change their privacy settings to new settings offered by Facebook. The request ignited a firestorm among privacy advocates who believed that the changes meant less privacy for users. At the same time, the request forced users to consider their old settings and whether to change them to the new ones. The Financial Times reported that, according to Facebook, before this week’s rollout of the new settings, only 15% to 20% of users had changed their default privacy settings, but in response to the inquiry about changing their privacy settings, 50% of users — approximately 175 million users — had made changes.

Why is this massive review of Facebook privacy settings significant to employers? Facebook’s default privacy setting is, perhaps ironically, “Everyone.” In other words, job applicants and employees who do not change their default privacy settings on Facebook permit the general public, including recruiters, human resources professionals, in-house employment counsel, and employment litigators to view all information posted on their profile. Because the information is readily accessible to the general public, the law imposes no restriction on these viewers, even when their interests may be adverse to those of the applicant or employee.

Facebook’s privacy settings include an option that permits a user to restrict viewing to “Only Friends,” i.e., only those people whom the user has permitted to access her profile. While some users exercise little or no discretion in accepting friend requests and have hundreds of friends, many users restrict their friends to those whom the user can trust to further disclose information posted on the user’s profile page only with permission. Employers face significant legal restrictions on access to a user’s restricted Facebook page. One of our recent blog posts highlighted an adverse jury verdict against Houston’s restaurants where two managers who were not on the friends list of a MySpace group page, nonetheless, gained access to the page and fired two of the group’s members who were Houston’s employees based on their postings.

Even if only one-quarter of the Facebook users who recently changed their privacy settings restricted access to “Only Friends,” that change would translate into approximately 44 million users. Put another way, employers may be seeing the start of a cultural shift in which social networking users become far more careful before posting information about themselves that could be lawfully accessed without their knowledge or consent and used against them in employment-related decisions.

This entry was written by Philip L. Gordon

Image credit: DaytonChildrens