|Commentary Authored by Gardere Technology Attorney Peter Vogel and published by the E-Commerce Times |
The BYOD Maelstrom: Legal, Technical Issues Abound
|June 13, 2012 11:42 pm|
By E-Commerce Times columnist Peter S. Vogel who is a trial partner at Gardere Wynne Sewell, where he is chair of the eDiscovery Team and Chair of the Technology Industry Team. Before practicing law, he was a systems programmer on mainframes, received a masters in computer science, and taught graduate courses in information systems and operations research. His blog covers contemporary technology topics.
If employees are using their own smartphones, tablets or computers outside the normal course of their employment, such as on evenings or weekends, can employers make any claim to IP ownership? Perhaps the IP ownership determination would turn on whether an employee was working on an employer's project or if an employment agreement carved out a 24/7 IP ownership claim.
When companies started issuing BlackBerry phones, the world changed. With the advent of the iPhone and Android, the world changed again. Employees started using the newer, hotter technologies, and many carried the company BlackBerry and the iPhone or an Android handset but did not like carrying two devices -- one for work and one for personal stuff.
Some, but not many companies, started issuing iPhones and Android phones. Others simply said "Bring Your Own Device" and either supplemented the costs or did not. Either way, employers had to figure out how to support the new BYOD world.
However, BYOD has created new challenges for those employers who permit, encourage or require their employees to buy and use their own smartphones, tablets or computers for company business. Those issues, both legal and technical, exist whether the employer supplements the costs or not.
While it is clear, thanks to a 2010 U.S. Supreme Court 9-0 ruling, that employees are not entitled to privacy on their smartphones (or tablets or computers) if they use an employer's issued device, it is not so clear when employees rely on their own smartphones (or tablets or computers) for email and remote access.
The legal questions center around whether the device is used for personal or business use, and whether an employer's contribution to the cost of the device or service makes a difference.
What Are the Technical Issues?
BYOD poses several challenges to an enterprise, according to a just-released Juniper Networks (Nasdaq: JNPR) survey of more than 4,000 mobile-device users and IT professionals:
- Adapting mobility policies to align with the current trend of employees using personal mobile devices for corporate use
- Delivering secure, remote access for mobile devices, while enforcing granular access controls
- Securing corporate and personal data and mobile devices from malware, viruses and malicious applications
- Mitigating the risk of loss, theft or exploitation of corporate and personal data residing on mobile devices
- Providing all of the above for an ever-increasing range of mobile devices and platforms.
Obviously, these challenges create complexities for the IT professionals, many of which are intertwined with legal issues.
What Are the Legal Issues?
1. Privacy and Email
2. Intellectual Property
What About Intellectual Property on BYODs?
What Employment Contracts or Policies Address
Given all these BYOD issues, it seems pretty clear that there should be a written document specifically delineating the rights and obligations relating to the employee's use of employee-owned smartphones, tablets and computers. In addition to addressing IP and email, the document should address employer requirements for security software, encryption and passwords on these devices if the employees have access to the employer's email, system and the like.
Simply by addressing these types of issues up front in written agreements, companies can go a long way toward reducing the risk of misunderstanding and compromise of their systems. In the U.S., they can also clarify expectations with respect to email and IP rights.
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