Agreeing to a BYOD policy could land an employee in jail
By agreeing to a BYOD policy, employees could be dragged into civil or criminal litigation, warns Michael Kassner, a freelance writer and information security consultant.
Employees could be required to give up their personal device to the courts or even have all of the data on the device searched, with possible legal ramifications for the owner, noted Kassner.
"There is legal precedence involving e-discovery and plain-view doctrine that allows the seizure of evidence whether it is related to the case under investigation or not," Kassner wrote in an Internet Evolution column.
Kassner consulted with Tyler Pitchford, with the law firm of Brannock and Humphries, about three possible legal scenarios involving BYOD.
The first scenario involves an employee who has signed a BYOD end-user license agreement, having his personal data wiped along with the corporate data. If the end-user agreement includes the clause enabling the wiping of all data on the personal device, the employee is out of luck.
"In the above scenario we're talking about a legal contract, which means if the employee signed the contract, he agreed to its terms, granting his employer the right to reset the employee's phone," comments Pitchford.
In the second scenario, the enterprise becomes involved in a civil lawsuit and a subpoena is issued for the employee's smartphone. During the legal e-discovery process, sensitive personal information is publicly disclosed.
"Since the employee co-mingled work and personal data, she has turned her smartphone into discoverable evidence …The employee can seek an order quashing the subpoena or an order sealing the discovered information, but that's unlikely in this circumstance," Pitchford observes.
In the third scenario, the employee's company does business with a firm that is the subject of a criminal proceedings. A warrant is issued for the employee's phone because the employee has done work for the targeted firm. Incriminating evidence is found on the employee's phone and the employee is now under criminal investigation.
"Assuming the warrant is valid, then anything the government located in plain view within the scope of the warrant is admissible against the employee in another proceeding," Pitchford notes.
Kassner concludes: "Until case law or new technologies decide which way the legal winds are blowing about BYOD, it might be in your best interest to avoid BYOD and its alluring convenience."
- read Kassner's column