Over the past decade, internet users have taken part in a continuously changing online experience.  Privacy, one of the most dynamic features of this experience, always seems to be the cause of significant shifts in online behavior.  In the beginning, there were chat rooms resembling the wild west, where users could complain, comment, and even insult others as much as they liked without much fear of repercussion.  They hid behind user names.  Over time, the information contributed to social media sites, blogs, and other community forums became more meaningful.  Not only could more people easily access our expressed opinions, ideas, and images, but that kind of information remained available for indefinite periods of time for others to find.  Still, one could hope that their rogue party picture or classless commentary would remain hidden from individuals who could form meaningful judgments based on that information.  Recently, it became much more likely that people will be held accountable for their previous online behavior.

Back in May, a research company called Social Intelligence Corporation (SIC) was officially deemed to be in compliance with the Fair Credit Reporting Act.  The company conducts searches reaching the far corners of the internet for bits and pieces of information that individuals have posted and employers may want to know about.   The results of these searches are compiled and serve as social media background checks for employers to use in making hiring decisions.  Reports on individuals are kept on file for 7 years.

SIC aims to shoulder the burden of potential lawsuits from rejected applicants, by producing reports that comply with privacy and employment laws.  In order to walk the fine line between acceptable and unacceptable intrusion on individuals’ privacy rights, SIC requires consent from the employees or applicants being searched and notifies them when adverse action is taken by employers based on the reports.  It also dances around anti-discrimination laws by making sure to not to provide information on certain characteristics such as a person’s natural origin, race, religion, and age.  The background checks largely concern behavior that may shed light on an applicant’s suitability such as illegal activities, sexually explicit statements, signs of violence, and other socially unacceptable behavior.  As for images, they are doctored before being included in reports so individuals are not identifiable.

Troublesome considerations arise when considering the full production of these background checks.  The initial searches are surely automatic, but SIC still retains a level of discretion when putting together the results.  SIC’s reports could paint applicants in a certain light based on individual perceptions of contentious issues.  The value judgments involved in writing reports concerning an individual’s “socially unacceptable behavior” are necessarily important and vary greatly depending on who is making them.  There can be no clear definition of what constitutes an unacceptable picture or discriminatory comment.  Thus, an applicant may be at the mercy of an SIC employee’s opinions of their behavior, when they should be receiving scrutiny from their employer.  These considerations are sure to result in serious objections in the future.

Andrew Farrell

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