House votes down plan to block employers from Facebook snooping

Democrats invoke current online furor over employers asking for Facebook passwords to stall an unrelated GOP-backed reform effort. The delaying tactic doesn't work.

Declan McCullagh
Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
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The controversial -- if not exactly common -- practice of requiring job applicants to disclose their Facebook passwords briefly became ammunition for an unsuccessful Democratic effort to block an unrelated regulatory reform plan.

During the House of Representatives floor debate yesterday over a proposal (PDF) to reform the Federal Communications Commission, Rep. Ed Perlmutter, a Colorado Democrat, proposed that the bill be sent back to committee.

Rep. Ed Perlmutter, A Democrat who previously voted for anti-privacy legislation, now says he's in favor of protecting Americans' Facebook passwords. U.S. House of Representatives

Then, Perlmutter proposed, the committee would be directed to send the bill back with a one-paragraph amendment allowing the FCC to prohibit telecommunications companies from requiring Facebook logins of prospective job applicants.

"If you are a Facebook user, you should never have to share your password... People have an expectation of privacy!" Perlmutter said.

It was a transparent, if clever, delaying tactic. If Perlmutter actually wanted to add that pro-privacy section to the bill, he could have suggested an amendment instead of returning it to committee. And of the scarce reports that have trickled out about employers asking for Facebook credentials, the culprits seem mostly to be law enforcement agencies, which are not regulated by the FCC and would be unaffected by his bill.

Some background: the White House and House Democrats oppose the Republican-backed bill, titled the Federal Communications Commission Process Reform Act of 2012, on the grounds that it's unacceptable to require the currently Democratic-controlled agency to be more transparent and prepare economic impact analyses. A statement (PDF) the White House released on Monday complains the GOP bill would prevent the FCC from exercising "its statutory duty to protect the public interest."

Rep. Greg Walden, the Oregon Republican who chairs a communications and technology subcommittee, responded to Perlmutter during the floor debate by saying:

I think it's awful that employers think they can demand our passwords and can go snooping around. There is no disagreement with that. Here is the flaw: Your amendment doesn't protect them. It doesn't do that. Actually, what this amendment does is say that all of the reforms that we are trying to put in place at the Federal Communications Commission, in order to have them have an open and transparent process where they are required to publish their rules in advance so that you can see what they're proposing, would basically be shoved aside. They could do whatever they wanted on privacy if they wanted to, and you wouldn't know it until they published their text afterward. There is no protection here.

Perlmutter, by the way, isn't exactly a steadfast advocate of Americans' electronic privacy rights. He voted for legislation, for instance, designed to derail lawsuits against telecommunications companies that illegally opened their networks to the National Security Agency's vast eavesdropping apparatus. He also didn't seem that familiar with the problem he was claiming to solve, referring during the discussion to "the user of the Facebook."

Facebook last week warned that companies making such requests may not have the right policies or training in place to deal with private information they obtain. The practice has also attracted some negative attention in the Senate (and advocacy groups like the Electronic Privacy Information Center say a law preventing employers from doing this would be a good idea).

The House ended up rejecting Perlmutter's amendment by a largely party-line vote of 184 to 236. Then the underlying bill, the FCC reform measure itself, was approved by a vote of 247 to 174. It has not, however, cleared the U.S. Senate.