"Lawyers agree that employers shouldn't pull passwords off a BYOD phones and tablets and start snooping inside personal email accounts and social networks."
"A lot of employees feel they don't have a choice and will sign anything that's put in front of them and take their chances down the road."
The big hurdle in the discovery phase is, did the employee have a reasonable expectation of privacy in the communication or action? Or is the action of the employer justified? Starkman and Sussman agree that employers shouldn't pull passwords off a BYOD phones and tablets and start snooping inside personal email accounts and social networks.
Employees can further protect themselves even on corporate email by writing in the subject line of an email something to the effect of "privileged and confidential" or "not business related." This shows that the employee is seeking to protect the personal nature of the communication, Sussman says, "and may very well be respected by the court."
However, Sussman says that companies can make clear on a BYOD policy that it has access to personal information on the network and can leverage this to the extent that it's relevant to the case and potentially contradicts the statement made by a witness. "It's important and helpful to getting to the truth," Sussman says.
"We often see state courts coming out on both sides," Sussman says.
BYOD and Polices Still Evolving
It's too early to tell how BYOD policies and the law will play out; BYOD is simply too new of a technology trend. As BYOD matures and companies become more sophisticated about the acceptable terms in a policy, Sussman predicts BYOD policies will shrink.
Already, Sussman's clients are looking for ways to streamline the BYOD policy. They want to know how to communicate the key points: improving the security of the organization and minimizing the risk of loss or theft, while establishing the rules of the road for employees — that is, what's expected of them in a BYOD world.
"I think there's also the potential to have new clauses entered in, such as arbitration waivers and class claims," Sussman says. "It's an opportunity for an employer to have an agreement between the company and the employee that establishes, if this relationship breaks down, how are we going to resolve disputes?"
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