Dr. Shlomit Yanisky-Ravid | 64 Am. U. L. Rev. 53 (2014)

Social networking has increasingly become the most common venue of self-expression in the digital era.  Although social networks started as a social vehicle, they have recently become a major source for employers to track personal data (“screening”) of applicants, employees, or former employees.

This Article addresses whether this casual business routine harms employees’ rights to privacy with regard to data that users post on social networks, what the drawbacks of this routine may be, and why and how privacy rights should be protected to secure private zones within the virtual sphere.  The Article suggests that a privacy right exists within the context of employment, even in data posted openly on social networking sites.  Antidiscrimination laws, the misleading nature of social networks’ privacy policies, cognitive biases, unequal bargaining power, the lack of a right to be forgotten, lost control over data posted by third parties, and psychological reasoning all justify a reconsideration of the current regime.

The Article further claims that securing a “private zone” for U.S. employees, a concept adopted by several other legal regimes, is justified by a bundle of psychological theories that can be concisely described as the “balloon theory” (or the “magnet field theory”), which encompasses the importance of a private sphere that constantly and permanently surrounds one’s persona wherever one goes—including within the public domain and digital spheres.

In this Article, I call for a re-thinking of the current U.S. regime based on tort law (expectation test) and contract law (implied consent based on firms’ policies) because the current regime costs applicants and employees a near-total loss of privacy in their virtual postings.

This Article not only argues for a more balanced approach to employees’ privacy but also suggests a new desirable model for policymakers to adopt.  I propose this challenge be addressed by the adoption of new legal tools.  Implementing the Least Invasive Means—a proportionality standard that obeys antidiscrimination laws, maintains transparency, and ensures informed consent and a right to be heard—would lead to a better and more balanced approach to privacy in the workplace.  I also contend that this model may be implemented to protect privacy rights in data posted on social networks beyond the context of employment.

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