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Smartphones Raise New Privacy Concerns for Employers

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The U.S. Supreme Court recently released a unanimous decision, in Riley v. California, that law enforcement may not conduct a warrantless search of digital data stored on a smartphone of someone who has been arrested. The Supreme Court rooted its decision in a determination that the storage capacity of a modern cell phone is substantially greater than any other physical object a person usually carries and, therefore, the privacy considerations are different.

The Court described smartphones as “minicomputers that also happen to have the capacity to be used as a telephone.” The Court found that in the context of modern cell phones, individual privacy interests generally outweigh the government’s interest in safety and preservation of evidence.

While the Riley decision was in the context of a criminal case involving an individual’s privacy rights, it may still offer guidance to private employers who allow employees access to company data on mobile devices such as smartphones or tablets. Employers that permit the use of employee-owned devices for work purposes should make sure they have a policy in place that balances an employee’s privacy rights with protecting legitimate business interests.

Employees having and using their own smartphones and tablets in a work capacity have become commonplace, but if employers do not manage the use proactively, then it can present risks. Some things to consider would be to provide notice to employees regarding the potential for inspections and monitoring of employee devices used for work. Also, inform employees that any company data on employee devices is company property and can be erased before employers and employees go their separate ways.

Notwithstanding the Riley decision, employers can inform employees through workplace policies that they have no legitimate expectation of privacy with work-related files, regardless of whether the files are on the employee’s device or the company’s device.

For information about workplace policies involving smartphones, contact the Association’s Legal Services Division at 814/833-3200 or 800/815-2660.