In June 2009, officials in Bozeman, Mont., came under fire for requiring the disclosure of private data from applicants angling for city jobs.
On Thursday, June 18, one applicant e-mailed local news outlet KBZK about part of the background check. In order for applicants to be considered for employment, they had to provide Bozeman with a list of their social networking log-in credentials.
A form in the job application asked job seekers to "please list any and all, current or business Web sites, Web pages or memberships on any Internet-based chat rooms, social clubs or forums, to include, but not limited to: Facebook, Google, Yahoo, YouTube.com, MySpace, etc.," according to the news station.
The story ran on-air and the station's Web site. The public outcry was immediate, and Bozeman officials certainly felt the heat, according to City Manager Chris Kukulski. "We primarily got a flood of very -- in some cases, really -- malicious, very attacking e-mails from people all around the country," he said.
The morning after the story broke, Bozeman had a 90-minute staff meeting, after which officials announced that the city was rescinding the policy. Kukulski wrote in a press release that "the extent of our request for a candidate's password, user name or other Internet information appears to have exceeded that which is acceptable to our community. We appreciate the concern many citizens have expressed regarding this practice and apologize for the negative impact this issue is having on the city of Bozeman."
A lot happened in 24 hours, but the commotion didn't end there. The Bozeman Daily Chronicle reported on July 28 that the City Commission unanimously approved nearly $10,000 for an outside party to investigate the policy and how pervasive it was. The City Commission set an Oct. 1 deadline. The investigation was prompted by an e-mail a city employee sent to the commission claiming that the hiring practice was larger in scope than the city originally let on -- the e-mail claimed that Bozeman also asked potential hires for e-mail and bank account information.
"You got the e-mail, so there's the accusation there. I think the purpose of the investigation is to get to the bottom of it," Kukulski said. "If there is fire behind the smoke, then we want to know what that fire is so we can fix it, resolve it, learn from it, move on. If there's not a fire behind this accusation, then we want to know that too so that we can move on."
Kukulski, however, said the purpose of the investigation wasn't necessarily to discern whether the hiring policy itself was right or wrong, but rather to determine if the city lied to the public and the City Commission about how the policy was executed.
"It really is specific to this individual's comments regarding our overall hiring process and what he believed was not consistent with what we were telling the City Commission and the public," he said.
The investigation was conducted directly for the City Commission, which is composed of Mayor Kaaren Jacobson and commissioners. Kukulski isn't a member of the commission but was interviewed by the investigator.
"I think we're all going to be interested to see what the investigation that they have authorized comes up with," said Scott Crichton, the executive director of the American Civil Liberties Union of Montana. "I think the city has been embarrassed and has backpedaled considerably, and that other people managing city governments are going to watch what comes from the investigation."
Kukulski said he didn't know about the policy
until that week in June. The policy had been part of a waiver that applicants were to sign authorizing the city to investigate their background.
"It was a public document. It was available on our Web page," he said. "If somebody would have looked up our hiring practices on our Web page, they would have seen it right there. This was never anything that anybody tried to hide or prevent the public from being aware of."
Kukulski estimated that the policy first came about in 2006. It was part of a background check process for police force applicants before expanding to the rest of city government in April 2008.
"We mistakenly took that too far in not recognizing that the background investigative work that would need to be done for a law enforcement officer really is critically different than that for other employees," Kukulski said.
According to the Bozeman Daily Chronicle, the city investigation would delve into just how voluntary the background check was and what specific information was obtained. In the employee e-mail that prompted the investigation, the author wrote that he spoke with one applicant who claimed he was told he "would be done" if he refused to provide the information.
Kukulski, however, said that refusing to divulge social networking user names and passwords wouldn't have been grounds for disqualification.
"It was, I think, implied that it was a requirement. It never was an explicit requirement, and we have people on staff who didn't fill that section out who we hired," he said.
But Crichton said an applicant might feel that the right to refuse on paper could be a deal breaker behind the scenes.
"Put yourself in the position. You're applying for a job. They tell you, 'We want this information from you.' I'll bet you dollars to doughnuts that they weren't saying, 'But it's OK if you don't want to answer it,'" Crichton said.
Kukulski said the more personal background information, such as social networking user names and passwords, weren't asked of applicants until they were deeper into the selection process.
"Those are not things that were asked of people until we get to the final stages of the interview process," he said. "And I think many people have assumed that this is information that was asked of anybody who was applying for a job. That's not correct. I'm not saying that to justify it. It doesn't make it right, but that's not the stage at which these questions were asked." They were only asked of finalists, and then only used on the applicant within the finalist pool that received a conditional job offer.
The confusion over just what was asked and when is why people still have questions.
"They backpedaled with several different versions of, 'Oh well, this was only used on rare occasions,' 'People could opt out,' and 'Oh, it was only for this class of workers.' And that's why the investigation's going on," Crichton said of the policy and its practitioners.
Andy Serwin, a partner with law firm Foley & Lardner, thinks things could get tricky. "You can get into these situations where there is a waiver of privacy. This isn't one where they wiretap someone without them knowing," he said.
And because Bozeman is a government employer -- not private -- there's a possible violation of trust that might come into play. Serwin referred to the Fifth Amendment in the Bill of Rights, which protects citizens against abuse of government authority in legal procedures. If you've forked over your social networking password to the government, you might have opened yourself up to damaging exposure and self-incrimination you'd otherwise avoid.
In any case, what happens next will likely depend on whether the investigation concludes that the offering of personal information was voluntary or not, which has yet to be legally determined.
"In these economic times, for the city to authorize the expenditure of $10,000 to investigate this issue, I think the final chapter hasn't been written," Crichton said.
Editor's note: The investigation report was released on Oct. 1, and according to the Bozeman Daily Chronicle, revealed that the application forms for police and firefighter jobs requested social media passwords and e-mails, but applicants weren't told that providing the information was voluntary. The policy was first adopted by the police department in 2007, then the fire department in 2008. The investigation found that officials didn't intentionally mislead when they didn't inform the Human Resources Department of the form changes. Bank account information was not requested of job applicants.