Peer to Peer Magazine

WWW.ILTANET.ORG 51 federal law with both civil remedies and criminal penalties for unauthorized access of computer data. Social media data present even greater challenges. According to the National Conference of State Legislatures, 21 states have enacted laws limiting employers' access to employee social media data, while 13 states passed laws limiting educational institutions' access to student social media accounts. It's not surprising that social media have triggered a veritable cornucopia of litigation. Courts have placed limits on employer fishing expeditions through employee social media accounts in cases such as Mailhoit v. Home Depot (2012). LESSON THREE: Mobile technology is a growing issue for everyone. Mobile technology is changing law firms and the corporate workplace. Set to be released in October, a kCura-Ari Kaplan Advisors survey of partners at major law firms reported 88 percent of their firms had formal remote work/technology policies. Eighty-three percent of respondents said they were comfortable using mobile technology in the courtroom. As for the future, 67 percent predicted the paperless workplace will become the norm for law firms, but that means a third of respondents disagreed. One partner noted that "Even tech-savvy lawyers are heavily dependent on paper; that will be the toughest nut to crack." GOING FORWARD As more employees take advantage of the mobile workplace, employers need to be aware of the dangers of accessing information on employee-used devices. Keep these lessons learned in mind as you develop your mobile workforce. About the Author David Horrigan is kCura's e-discovery counsel and legal content director. An attorney, law school guest lecturer, e-discovery industry analyst and award-winning journalist, David has served as counsel at the Entertainment Software Association, reporter and assistant editor at The National Law Journal, and analyst and counsel at 451 Research. Contact him at dhorrigan@kcura.com. According to the National Conference of State Legislatures, 21 states have enacted laws limiting employers' access to employee social media data. LESSON TWO: Have a comprehensive mobile technology policy, and make sure it is adaptable to emerging technologies. Although the U.S. Supreme Court held the government employer in Quon was not liable for accessing its employee's private data, the case serves as a good lesson in drafting written mobile technology policies. As a member of the Special Weapons and Tactics (SWAT) unit for the city of Ontario, California, Jeff Quon received a city-owned pager. Before distributing the pagers, the city established a written policy reserving the right to monitor all network activity. The policy did not specifically cover text messages, but the city clarified it would treat texts like email. When the inordinate number of Quon's texts led to an audit of their content, they were found to be largely inappropriate. Disciplinary measures were taken, which led to a lawsuit. Despite the city's best efforts in establishing a written policy, it still found itself in a legal quagmire. In drafting mobile technology policies, employers should ensure they do not run afoul of any National Labor Relations Act (NLRA) requirements. Many people mistakenly assume the NLRA applies only to unionized workplaces, but its restrictions in areas such as social media policies govern non-union workplaces if the policies impact "protected concerted activity."

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