DeepNet: The Final Frontier for Employment Law?

DeepNet: the final frontier. These are the voyages of the plaintiffs’ bar. Its lifelong mission: to explore strange new claims, to seek out new cases and new settlements, to boldly litigate where no man has litigated before.

The DeepNet – a.k.a. invisible Web, a.k.a. dark Web – is a huge repository of information contained in databases that search engines and directories cannot directly access. This information is generally inaccessible to spiders and crawlers that generate search engine indexes.

Still with me? The DeepNet is stuff that you can’t get to by googling. And there’s a lot of stuff you can’t get to by googling. Bright Planet estimates that the DeepNet is 500 times bigger than the surface net. Google covers about 8 million pages, so we’re talking about 4 billion pages of DeepNet stuff.

What does this have to do with employment law? Employers have been using search engines and social media sites for a while to learn more about job candidates. Some employers are turning to the DeepNet to obtain even more information. According to a CNN article, a DeepNet search can reveal whether your house is in foreclosure, political campaign contributions, bankruptcy, late child support payments, and your results from the last marathon you ran.

It would seem like this information would be hard to get, but there are several companies that specialize in DeepNet searches. Prior to posting this entry, I ran a DeepNet search of myself on Pipl, a company that specializes in conducting deep Web searches for recruiters and Fortune 500 companies. Some of the information was not mine (wrong Stephanie Thomas), but a lot of it was correct – there was even an entry for a creative commons photo I used in a recent blog post:

Scary, right? Not as scary as conducting a DeepNet search on a job candidate, finding out protected class information, and getting sued. Peter Gillespie, an employment lawyer in the Chicago office of Fisher & Phillips, thinks that employers using DeepNet searches “run too big a risk of finding out something you would not be allowed to ask in an interview.” The CNN article referenced above gives the following example:

For instance, hiring managers are prohibited by law from asking if an applicant has ever had cancer. What if a deep Web search reveals his or her membership in a cancer survivors’ support group? “Are you going to be able to put that completely out of your mind?” says Gillespie. “What if you decide not to hire this person for some other reason, but he or she hits you with a lawsuit claiming it was an ADA (Americans with Disabilities Act) violation?”

We all know that the risk to employers of using social media to investigate applicants is real, but it can be managed with a few common-sense guidelines. DeepNet diving poses more of a risk because there is a greater chance that you will uncover information that you, as the employer, are prohibited from knowing prior to making a hiring decision. Once you cross that frontier, it may be too late.