Blogs

This article was co-authored by Scott Murchison, SVP, Kaizen InfoSource LLC.

I hear shock all the time from peers when I mention that anything they do for work on their personal equipment is subject to search by their employers. The Quon vs. Arch Wireless ruling by the Supreme Court pretty much made it law that employees should have some reasonable expectation that what they do for their employer is the employer’s regardless of the equipment used to produce the information.

This means that if you receive company emails on your personal iPhone and the company is involved in litigation of any kind, the information that you discussed via email on your own phone is potentially subject to search and production. Gone are the days when ignorance of understanding about how electronic records and information are managed is a defense to non-production. Portable data storage devices, such as laptops, smartphones, and remote storage drives, are great for accessing and moving information from person to person; however, they have created unintended consequences…namely, a loss of personal privacy.

Those racy pictures you snapped with your fun new do-everything smartphone could be seen by someone other than your spouse if you also conduct official company business on that same device. The Quon case was about this very issue. The officer was texting racy statements and pictures to both his wife and his mistress when his employer, the Ontario, CA police department, obtained printouts of those texts from his department-issued cell phone. When asked to produce the information, the officer refused, so the department went to the third party carrier, Arch Wireless, to obtain printouts of his texts. The court held that he should have known that he was using department equipment and that he should have understood that anything he did on that device was subject to search.

Should your employer make this clear to all employees? Yes in the form of a strong statement in their electronic communications policy that employees should have no expectation of privacy when utilizing company equipment to communicate, whether the communication is for business or personal use. The policy should also clearly state that it is strictly forbidden for any company information to be created or stored on employees’ personal devices. This keeps everyone clearly informed as to their expectations and the consequences of violating policy.

The bottom line is if you own it, leave it at home and use it only for personal needs after office hours.

Happy New Year!  This is going to be a great year.  If we make it that way!