In Part 1 of this two-part series on BYOD (bring-your-own-device), we considered some of the common concerns companies have when thinking about, or implementing, BYOD in their organisation. This week, we examine the 3 stages of an employee's life-cycle in the context of BYOD. In particular, we look at how these stages of the life-cycle can help to inform the company's BYOD policy.
1. The Beginning - Disclosure is King
Employees have a reasonable expectation of privacy in the workplace. In Copland v. UK, the European Court of Human Rights held that by failing to notify the employee that telephone calls, e-mails or internet usage would be monitored, the employer violated the employee's human right to privacy. Therefore, because privacy and data protection are specific fundamental rights in Europe, if the employee's device will be monitored, it is essential that the BYOD policy transparently explains the scope of access (what information the company will access) and the purpose of the access (why the company will access that information).
The policy should also address how the company will go about protecting the private information that it comes into contact with when carrying out monitoring. Drafting a BYOD policy does not give the company a 'blank cheque' to closely examine everything in the device. The monitoring of the device has to be proportionate to the stated reasons for the monitoring. For example, if the purpose of the monitoring is to ensure that employees do not spend company time on personal matters, then monitoring may not be appropriate on weekends.
Secondly, the policy should explain what measures the employee must take in order to protect the data on the device, such as encryption, password protection to access the device, and limitation on the types of company information that can be stored on the device. Furthermore, the policy should discuss permitted use, including what content the employees are allowed to access from work. This will ensure that employees do not use the company network to access illegal or inappropriate material which can expose the company to liability, or material that heightens the risk of a network security breach.
In applying the BYOD policy, the company should ensure that employees are made aware of, and clearly agree to, the BYOD policy before the company approves the employee's use of a personal device and before the company accesses any information on that device.
2. The Middle - Review, Revise, Remind
The BYOD policy should be a living document that changes as both technology and the company's needs change. This can be achieved by following 'the three Rs':
- periodically review the policy to make sure that it accurately reflects the ways personal devices are used in the company;
- revise the policy to account for the evolution of industry security measures and changes to privacy legislation; and
- remind employees that they are bound to the terms of the BYOD policy.
The BYOD policy should provide that the company reserves the right to make certain minor changes to the policy without specifically informing employees. Companies should clearly notify employees of any material changes to the policy that impact employee rights and responsibilities; this aims to avoid an argument that the employees were not on notice. Additionally, companies should consider giving employees a grace period to adapt to substantial changes, and should let employees know that if they no longer agree to the policy they should refrain from using the device for work, and, optionally, may be required to deliver the device to IT to ensure that company proprietary information is properly and permanently deleted. Likewise, if an employee decides to upgrade the device, the company may also require the employee to bring the old device to IT for evaluation.
To enable the company to minimise risk, employees should be required to immediately notify the company if they suspect a data breach has occurred. The BYOD policy should provide that the company can remotely wipe the device in the event it is lost or stolen in order to protect company proprietary information.
Finally, the BYOD policy should discuss consequences for breach, such as employee liability for loss of proprietary company data or dismissal if a more serious violation occurs.
3. The End – Checking Out
It is important to have the 'end-of-life' terms agreed in the BYOD policy in advance, since not all employees may leave the company on good terms and even those that do may be sensitive to having their personal device accessed at the end of the employment relationship. In the US, the practice is to require employees to hand over their devices so that their contents can be reviewed and deleted as appropriate. This is a cumbersome exercise in itself and is actually resulting in a decrease in the use by employees of their own devices. This type of review is however something which is unlikely to be permitted in Ireland or Europe due to the aforementioned protections on employees' privacy rights, unless the BYOD policy explicitly permits this type of access and such permission is proportionate to the stated reasons for the access.
A company's BYOD policy should explain that the employee is required to permanently delete all company and employee information from the device before the end of the employment term. Furthermore, the company should consider whether the employee will be required to bring the device to IT for evaluation as part of the employee's 'exit interview'. Companies should also be prepared for a refusal by an employee to hand over his/her device and consider whether (a) it is technically possible to remotely wipe company data from the device and whether (b) such remote wiping would capture all data – company confidential data or the personal data of other employees. This will largely depend on the device used by the employee and whether the company obtained the proper employee consents in the BYOD policy.
Other considerations may include: whether the employee will be allowed to keep the phone number if the company owns the contract with the mobile network provider, and whether the employee will be required to sign a declaration confirming that all company information has been returned and/or destroyed.
Conclusion
Allowing BYOD without a BYOD policy can be a significant risk. The company can quickly lose control over its proprietary and confidential information, and could inadvertently breach its employees' fundamental right to privacy. In addition, even if the company has not sanctioned the use of personal devices for work, in all likelihood many employees are still putting company information on their devices. So, in the digital era, the age-old adage still holds true – "by failing to prepare, you are preparing to fail." And by failing to prepare a clear BYOD policy, an organisation is preparing for increased exposure to a security or privacy breach.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
