Is there a BYOD escape clause at your company?

Companies, small and large, have jumped onto the bring-your-own-device (BYOD) bandwagon in order to save money or to quell the murmurings of its employees for not supplying their favorite device. But for some employees, BYOD is infringing on their rights or taking advantage of them. There ought to be an escape clause for those wishing to opt out. Some BYOD programs have no such clause. In other words, either you bring your own device or you don't have one. This seems to be the case for smaller companies, but larger ones may soon catch on to the "all or nothing" BYOD scheme. Where does this situation leave the employee who doesn't want to share their phone, tablet, or laptop with the company? It might leave them with a different kind of escape clause.

I've heard from many of you who either have commented or written to me privately that BYOD just isn't for you for one reason or another. The reason I've heard most often is that you feel like it's an invasion of your privacy to share your personal devices (usually a smartphone) with your employer. The second most popular reason is that you don't want the possibility of having your phone reset to factory freshness by some hapless mobile device administrator clicking the wrong button.

I'd have to say that all of the complaints I've heard are 100 percent valid. I have yet to hear from someone who doesn't have a legitimate complaint. One of the rarest complaints I received was as follows:

"If my employer chose to, could they confiscate my personal phone and force me to give up my passwords and reveal my personal messages and data? I don't have anything to hide, but that feels like a huge privacy violation."

I am not a lawyer, but I'd say, "Yes", they probably could demand access to your device if you use it for business purposes, especially if they're paying for service or compensating you somehow for its use. But the companies' leverage would probably fall under corporate policy. In other words, if the employer fully informed the employee that this could happen, then the device could be under the employer's domain.

It's probably a good idea to check your company's policies in this area and consult an attorney, if you're really concerned. If you can prove that you weren't aware of any such policy or possibility, then you might have a case. But the employer could terminate your employment if you don't turn over the device. You'd have to check your situation to see if you'd have any legal recourse in case of termination.

I'd like to add my own additional concern to the above. What if your employer came under investigation by some government entity for wrongdoing and your personal phone had to be subpoenaed as evidence in the case? You could be without your personal phone or other device for a long time, years maybe.

Email, chat logs, text messages, and any kind of data that you can store on a smartphone, tablet, or laptop make those devices susceptible to subpoena as evidence. As I said, I'm not a lawyer, but the lines get blurry in these cases, and I think that any electronic device that's used for business purposes is fair game. If you're curious, then I'd consult an attorney, because the situation may vary from state to state and in federal cases.

The big questions are, "Do you have any recourse in either situation?" and "Do you have a valid case to refuse your employer's request for access to your device, to refuse access to a third party such as a security consultant or as in the case of a criminal investigation?"

To the first question, the answer is "Maybe". Sorry, even an attorney can't tell you more than that without more information about a specific situation. You might have legal recourse against an employer, but you'd probably never have recourse against the state or federal government in the case of a seizure of your devices for a criminal investigation. A bit of sage advice here: If your company falls under a criminal investigation, cut your losses and find a new job, get a new smartphone, tablet, or laptop, and move on. By the time the device comes back under your control, it will likely be out of date.

I'm sorry to paint such a grim (realistic) picture of this downside to BYOD, but you have to be aware of all the possibilities where your privacy is at stake.

The answer to the question, "Is there a BYOD escape clause?" is "No, not really". If your company has already begun such a program, I suggest that you find out as soon as possible exactly what your rights are in the matter and see if you can choose to opt out. As for criminal investigations, you're stuck. If your company has not begun a BYOD program, then I'd suggest that you help draft an escape clause so that your personal device doesn't fall under the jurisdiction of your employer.

What do you think of the possibility that your personal devices could fall under the jurisdiction of your employer, especially in the case of a criminal investigation? Talk back and let me know.