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

CURRENT ISSUES

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.

http://oig.nasa.gov/Special-Review/SpecialReview(12-17-12).pdf

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.

http://www.npr.org/2010/11/22/131511381/wipeout-when-your-company-kills-your-iphone

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.

http://www.mass.gov/ago/news-and-updates/press-releases/2013/140k-settlement-over-medical-info-disposed-of-at-dump.html

OVERVIEW OF BYOD POLICIES

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

INTEGRATING BYOD IN YOUR WORKFORCE

Overview

  • 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

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