United States: BYOD For 501(c)s: Pros And Perils Of "Bring Your Own Device"

Last Updated: April 7 2014
Article by Jeffrey S. Tenenbaum, Ronald W. Taylor and Armand J. Zottola


What Is Bring Your Own Device?

  • Central management of the security of personally-owned mobile devices, including smart phones and tablets, to support the following security objectives:

    • Confidentiality – ensure that transmitted and stored data cannot be read by unauthorized parties
    • Integrity – detect any intentional or unintentional changes to transmitted and stored data
    • Availability – ensure that users can access resources using mobile devices whenever needed

See, e.g. NIST Guidelines for Managing the Security of Mobile Devices (800-124).

What Issues Are Presented by BYOD?

  • Hypothetical 1: During a board meeting, the CEO makes reference to a sensitive document, which he has emailed to his personal smartphone from his corporate account.
  • Hypothetical 2: An employee loses a dual-use device.
  • Hypothetical 3: An employee's dual-use device is infected with malware.
  • Hypothetical 4: Your nonprofit is sued and is asked to disclose information from an employee's device.

Unsecure Information

  • BYOD programs and dual-use devices necessarily involve taking information outside of the protection of a company's private servers
  • Trade secrets must be subject to reasonable efforts to maintain its secrecy
  • Devices that are lost, stolen, or used on unsecured networks can result in the loss of information

Did you know: Between 2009 and 2011, 48 mobile devices were lost or stolen from NASA, including an unencrypted laptop with command and control codes for the International Space Station.


Overlap of Workspace and Personal Space

  • Employees may store personal information on a dual-use device, complicating security procedures such as remote-wipes and GPS tracking
  • Retrieving data and devices from employees that quit or are fired can be complicated
  • BYOD policies that do not obtain informed written consent may not be enforceable

Did you know: In 2010, a publishing company accidentally remote-wiped an employee's dual-use device, destroying her contacts, photos and media, and the phone's ability to make calls.


BYOD and Privacy

  • Businesses that store consumer information (Social Security, driver's license, credit card, and account numbers) have security obligations, and BYOD expands the area a company must protect
  • A breach of security on an employee's personal device can lead to government enforcement actions, civil penalties, and litigation

Did you know: The Massachusetts Attorney General has obtained penalties from companies that failed to meet Massachusetts cybersecurity and encryption requirements.



Outline of a BYOD Policy

  • Parameters: Define who can participate or are subject to the policy
  • Scope: What devices? What conduct?
  • Security: Set boundaries and create both proactive and reactive security processes. Access rights and requirements? What information is accessible or transmittable? When and how are security incidents to be reported?
  • Monitoring: Address employees' expectations of privacy
  • User Support: Describe how and where users can get technical support/respond to security incident
  • Policy Violations: Control unsecured behavior by setting out clear consequences

BYOD Policy and Compliance

  • Cybersecurity regulations and guidelines:

    • HIPAA: The HIPAA Security Rule requires that covered entities at least consider whether encryption of personal health information, such as medical history, test and laboratory results, and insurance information, in electronic form is feasible and, if not, to document the basis for that conclusion. 45 C.F.R. pt. 164.312(a)(2), (e)(2).
    • GLB: Gramm-Leach-Bliley protects information held by financial institutions, such as account and Social Security numbers. GLBA's safeguarding regulations requires covered entities to identify risks to the security of customer information (including a risk assessment of computer information systems), and contractually require service providers to implement and maintain safeguards. 16 C.F.R. pt. 314
  • Record keeping rules:

    • Records of communications by an employee pertaining to the firm's business must be maintained, retrievable and reviewable. SEC Rules 17 a-3 and 17 a-4; NASD Rule 31101
  • Compliance with state laws and rules:

    • California: Imposes a general statutory duty on businesses to safeguard personal information. Cal. Civ. Code §§ 1798.80 et seq.
    • Massachusetts: Specifically addresses portable devices, requiring encryption of personal information stored on them. Mass. Regs. Code tit. 201, §§ 17.03 – 17.04
    • Texas: Imposes a general statutory duty on businesses to safeguard personal information. Tex. Bus. and Com. Code tit. 11, § 521

Additional Policy Considerations

  • Existing trade secret or email/computer policies
  • Existing EEO, collective bargaining, and other policies
  • Guidelines for configuring devices
  • Particular response to a data breach
  • Guidelines and processes for litigation ( such as preserving and deleting data)
  • Safety (for example, a policy against using a device while operating a vehicle)
  • Training



  • Management Issues
  • Equal Employment and BYOD
  • Wage and Hour Issues
  • OSHA - Workplace Safety and Health
  • Unionized Workforce
  • International Considerations

Management Issues

  • BYOD has the potential to expand the scope of employment
  • BYOD combines the workplace with the private sphere

    • Information about employees' private lives
    • Use of devices by employees' families and friends
  • "Devices" are not simply phones, but combine a broad range of abilities and activities

    • For example, apps for diabetes management

Equal Employment Opportunity

  • Translating current company policies to BYOD (for example, harassment policies)
  • Developing new policies to cover quasi-work environments
  • Accommodating people with disabilities

Wage and Hour Issues

  • Off-the-clock work and overtime
  • Employee reimbursement (state law reimbursement requirements)
  • Tracking usage of dual-use devices

Workplace Safety and Health

  • OSHA regulations and BYOD

    • Distracted driving: Work-related texting and emailing while driving
    • Repetitive stress injuries

Unionized Workforce

  • BYOD policies may be covered by and subject to collective bargaining agreements

International Considerations

  • Border searches:

    • Devices can be searched and detained without a suspicion of criminal activity
    • Consent is not required
  • Foreign wage-hour laws: The EU has stricter wage-hour laws than the United States, requiring separate or additional controls
  • International privacy laws: Device monitoring and security measures must be evaluated under multiple privacy regimes

To read this Presentation in full, please click here.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions