Peer to Peer Magazine

Fall 2015

The quarterly publication of the International Legal Technology Association

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Page 48 of 79

PEER TO PEER: THE QUARTERLY MAGA ZINE OF ILTA 50 There is a great demand everywhere in the world for individual mobility. People like the fact they are not on somebody else's schedule. They can come and go as they please. — William Clay Ford Jr., 2009 Henry Ford's great-grandson was explaining how his company's cars could meet the demand for mobility, but what is important about minivans and Mustangs is even more important for corporate technology. As employees seek the freedom of mobility and organizations welcome the increased productivity of the mobile workplace, their lawyers often cringe. The workers' "freedom" might not be as free as they think, and the information governance challenges keep corporate counsel and law firms up at night. The exponential growth of corporate mobile technology in the workplace may seem daunting, but a few legal lessons can help. LESSON ONE: Employers are often allowed to access their employees' mobile data, but they should proceed with caution. The Stored Communications Act (SCA) was put into law in 1986 to cover privacy issues created by new technologies. Of course, when Congress debated the SCA in 1986, lawmakers were not thinking about the tweet-powered Facebook world in which we find ourselves today. Most U.S. employers can monitor their employees' data activity when the employees are using the employers' equipment. However, in many European jurisdictions, it is unlawful for employers to monitor employees' email even when they are on the employer's system. In addition, although the U.S. Supreme Court gave government employers broad latitude to search employee data on employer-provided equipment in City of Ontario v. Quon (2010), employers' legal ability to access employee data is not absolute, and they should exercise caution when doing so. The SCA can be an issue for employers when accessing employees' mobile data. In cases such as Garcia v. City of Laredo (2012) and Sunbelt Rentals v. Victor (2014), courts have held that employers do not violate the SCA when they search employee data on mobile devices if data have been downloaded to the devices. However, employers should watch ongoing cases such as Galey v. Walters (2015). Here, a U.S. District Court distinguished between access to private communications and photographs on a mobile device and access to downloaded data. The court held that there could be a plausible SCA claim had the defendants accessed Galey's data stored electronically with her wireless service provider, email provider or the maker of the phone itself. Employers must encourage employees not to access data from their former employers' systems, which could trigger liability under the Computer Fraud and Abuse Act (CFAA), a Legal Lessons from the Mobility Movement FEATURES

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