Vogel Internet, Information Technology, and e-Discovery Blog : Texas Internet, Information Technology, eCommerce, & E-Discovery Lawyer & Attorney Peter S. Vogel : Gardere Wynne Sewell Law Firm : Dallas TX

A group of Chicago Police are suing for overtime pay since the City allegedly expected the officers “to be available twenty-four [hours] per day via Blackberry.” In their lawsuit the officers “felt obligated to respond to these email communications and telephone call while off duty.”

Huffingtonpost reported that the officers claimed:

…police brass pressured subordinates in the department's organized crime bureau to answer work-related calls and emails on their BlackBerrys, and then also dissuaded the officers from filing for overtime.

On January 14, 2013 US Magistrate Judge Sidney Schenkier issued an Order that included his opinion that the officers’ Blackberry “responses might constitute work.”

This lawsuit may help clear up employee use of employer issued devices and establish some legal boundaries between work and personal content that may apply to employee owned devices (e.g., BYOD). 
 

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BYOD continues to be very hot topic for IT and lawyers which impacts email, data security, and eDiscovery. Of course BYOD is growing in scope as Apple, Microsoft, and Droid based products are released. To learn more, please watch my recent video interview entitled "BYOD: When You Are Left to Your Own Devices." The interview by Financial Management Network (& parent SmartPros Ltd.) is part of a series of educational videos provided for accounting, finance, and IT professionals. So please check out the programs on Financial Management Network.

Also you can watch ALM’s Virtual LegalTech BYOD online webcast that I spoke on with Antoinette Duffy (Director of Information Management at Commvault, Canada) which is entitled “The Risks of BYOD and What You Can Do About Them.”

I welcome your thoughts and comments about BYOD and how BYOD impacts you and your business.
 

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Pew Research reported that cell users are very concerned about their privacy and including the fact that about one third reported that their cells have been lost or stolen which obviously increases awareness of loss of privacy. Since Pew reported earlier this year that 88% of US adults have cell devices this updated report on cell privacy helps explain how users are acting to protect themselves.

The September 2012 Pew report includes these important findings:

• 54% of app users have decided to not install a cell phone app when they discovered how much personal information they would need to share in order to use it
• 30% of app users have uninstalled an app that was already on their cell phone because they learned it was collecting personal information that they didn’t wish to share

Also the Pew report included these details regarding these steps that cell users take to protect their privacy:

• 41% of cell owners back up the photos, contacts, and other files on their phone so they have a copy in case their phone is ever broken or lost
• 32% of cell owners have cleared the browsing history or search history on their phone
• 19% of cell owners have turned off the location tracking feature on their cell phone because they were concerned that other individuals or companies could access that information

Given all of the concerns around BYOD (Bring Your Own Device) this Pew report should help companies be more informed about cell usage.
 

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The Federal CIO Council (CIOC) recently released a BYOD Toolkit which is part of a plan “to develop government-wide BYOD guidance based on lessons learned from successful BYOD programs.” The Toolkit is “not meant to be comprehensive, but rather provides key areas for consideration” and the Toolkit includes these Sample Policies:

#1: Policy and Guidelines for Government-Provided Mobile Device Usage
#2: Bring Your Own Device – Policy and Rules of Behavior
#3: Mobile Information Technology Device Policy
#4: Wireless Communication Reimbursement Program
#5: Portable Wireless Network Access Device Policy

The recent Pew Research Report that88% of US adults have cell devices highlights the spread of BYOD, which an essential technology modern life, and clearly impacts government or private business. As a result, BYOD will continue to create complicated legal issues regarding ownership of email and Intellectual Property.
 

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When employees use their personal cell, tablet, laptop, or PC it’s not so simple to determine who owns the content of their email and intellectual property. Notwithstanding the 2010 US Supreme Court 9-0 ruling (in the City of Ontario v Quon) that an employee who uses a company issued device is not entitled to constitutional privacy, when an employee conducts company business using their own personally owned device the question of ownership is much more complex.

I encourage you to read my June 2012 column in eCommerce Times entitled “The BYOD Maelstrom: Legal, Technical Issues Abound.”

Let me know what you think about the complex legal issues surrounding BYOD and how BYOD impacts your business.
 

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Even if employers provide cell devices/tablets to employees, many employees now insist on using their own iPhones, Droids, Blackberries, and tablets. However many privacy and data ownership legal issues are unresolved. At InnoTech on May 17, 2012 I had the honor to serve on a panel entitled “BYOD - Consumerization of IT & Policy Management” with these IT leaders:

Brian Bonner, Vice President and Chief Information Officer, Texas Instruments Incorporated
Richard Dorough, Chief Information Security Officer, Textron Information Services, Textron, Inc.
Gerry Mecca, Vice President of IT - Packaged Beverages, Dr Pepper Snapple Group (DPS)
Jake Sagehorn, Managing Director, SCA, Inc. (Moderator)

Many thanks to Jake Sagehorn for moderating the Panel’s discussion since it was clear that the audience of IT professionals wanted to learn more about our topics:

• Eligibility & Reimbursement Guidelines
• Enterprise Applications
• Security Guidelines
• ROI: The Cost Justification, and
• Legal Issues

Every business is impacted by BYOD, however the complex legal and business issues are not crystal clear.  How does BYOD impact you and your business?

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BYOD has created new challenges for those employers who encourage their employees to buy their own cell phones, tablet devices, and/or computers. After a recent discussion about BYOD my good friend Galen Gruman (Executive Editor of InfoWorld for Features) posted an InfoWorld blog “Lost in BYOD's uncharted legal waters” which includes many important legal and business issues.

Before posting the blog Galen wrote an excellent 29 page report called the “BYOD and Mobile Strategy Deep Dive” which has the following summary:

iPhones, iPads, Androids, and more are joining your business's suite of technology tools, driven by user demand and need. Most companies have opened up their networks to such devices, but big questions remain on how to do so securely, how to manage the new breed of devices to ensure compliance and information security while not unduly burdening users.

A 2010 US Supreme Court 9-0 ruling declared that employees are not entitled to privacy if they use an employer’s issued device, so what level of privacy is there for BYODs? Will employees using BYODs be entitled to privacy if they are conducting business for their employers? Or will the employees using BYODs be entitled to privacy if the employer reimburses the employee for the cost(s) of the BYOD? 

Interesting questions and in the future the Courts will let us know….so stay tuned.
 

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