As the workplace practice of BYOD (bring your own device) is starting to hit the mainstream, organizations are being pressed to consider the legal risks of BYOD and how to address these risks through appropriate BYOD policies. Some organizations have been turning a blind eye to employees accessing corporate networks through personal smartphones and are sometimes surprised to learn how pervasive that practice has become. Organizations are well advised to carefully think through the issues and develop an appropriate BYOD policy.
Most organizations have had policies dealing with remote access via home computers for quite some time now. Likewise, information security policies that address security risks associated with "corporate-owned" smartphones are not new nor are policies that deal with appropriate use of PCs in the workplace. These policies provide a valuable foundation for BYOD policies, which need to focus on the special risks posed by mobile devices that are employee owned.
This bulletin sets out some of the issues that an organization should consider when developing its BYOD policy.
CONSISTENCY WITH OTHER CORPORATE POLICIES
It is important that an organization's BYOD policy is consistent with and integrates with other corporate policies. For example, information security policies, document retention policies, acceptable use of computer resources (including email and Internet use), compliance and ethics, litigation holds, social media, harassment and discrimination, and employee privacy policies are likely to be relevant. Employees should be reminded of their existing obligations under each of these policies when introducing a BYOD policy.
SCOPE OF BYOD PROGRAM
An organization's BYOD policy should identify what devices will be included in the BYOD program, who in the organization will be entitled to participate in the BYOD program, how many devices each participant may have in the program, what the approval process for those wishing to participate in the BYOD program will be, what support the organization will provide in respect of devices and to users of those devices and, of course, the financial aspects of the organization's BYOD program. Consideration should be given to whether the organization would offer an alternative company-owned device for those employees who do not wish to participate in the BYOD program.
The input of the organization's human resources (HR) function on these types of issues is essential. One of the driving forces behind BYOD programs is employee satisfaction. BYOD programs are largely viewed by employees as an employee benefit. As with any other benefit, the organization's HR function should be aware of what its competitors are doing in respect of BYOD programs and what the organization's employees would prefer.
It is important for the organization to keep an up-to-date inventory of participating devices. This allows the organization to keep track of who is in possession and control of what kinds of business information and where that information resides – all essential for good data management within an organization.
In Canada, privacy rights are recognized through the patchwork of privacy legislation that imposes different obligations on employers depending on the nature of the employer and the jurisdiction of employment. In addition, regardless of whether privacy legislation applies, courts and arbitrators have increasingly recognized certain rights to privacy under the common law and in unionized workplaces.
Balance. Given the requirements of privacy legislation, as applicable, and other recent developments in the law, most Canadian employers will have obligations with respect to their treatment of employee personal information in these circumstances. However, even if employees have an expectation of privacy when using a mobile device, that right is not unlimited. An organization must balance an employee's expectation of privacy against the organization's legitimate business need to manage and control its business information. An organization's HR, information technology (IT) and legal functions will all be stakeholders in decisions relating to the right balance for the organization.
Good Practices. Prudent organizations will take steps to ensure that their liability collecting employee personal information (and their potential vicarious liability for when their employees breach the privacy rights of others) is limited. An organization's BYOD policies and practices may include a consideration of the following privacy practices:
- Limiting Collection. If there is a technological or other method of limiting the collection of any employee personal data from the personal mobile device, these should be considered.
- Limiting Disclosure. Only authorized personnel should have access to the personal information collected from mobile devices. Safeguards should be put in place to limit unintentional or unauthorized disclosures of personal information. Policies should also notify employees to whom the information will be disclosed, including potentially to law enforcement agencies when a breach of law is suspected. In addition, if applicable, query whether there is a legal requirement to notify employees when their personal information will be transferred outside of Canada.
- Consent and Notification. Consider whether express consent is required or recommended. In all cases, organizations will want to implement a means of clearly notifying employees of the potential collections, uses, disclosures and monitoring of personal information, and the purposes of such collections, uses, disclosures and monitoring.
- Expectation of Privacy. Employees should understand what expectation of privacy they should have when using a personal mobile device that is subject to the BYOD policy, and should understand what monitoring the employer will conduct. In order to effectively manage an employee's expectation of privacy and any consent requirement, an organization will need to be very clear – through not only its policies, but also its practices – about the circumstances under which and the purposes for which the organization may monitor employee device usage and what uses the organization may make of information that it accesses, views or collects.
An organization's BYOD policy should set out any security-related requirements or practices relevant to participating devices and users. The primary focus here is preservation of the confidentiality of the organization's business information while recognizing the privacy of any personal information within the possession or control of the organization.
Security Controls. The participation of the organization's IT function is essential to avoid data leakage. For example, decisions will need to be made regarding what user authentication protocols should apply to participating devices and users, what data encryption protocols should be mandated in order to protect business information that is stored on the device and that is transmitted to and from the device, and what antivirus protection measures should be implemented.
Restrictions on Apps. The organization's IT function will also need to consider what controls or restrictions are appropriate in relation to apps used by participating users for business purposes. Prudent organizations will often do their due diligence on apps before approving them for business use to ensure that the apps do not compromise the security or integrity of business information.
Restrictions on Clouds. Organizations need to know what "clouds" their business information resides in and whether the information in those clouds is subject to reasonable and appropriate security safeguards, taking into consideration the nature of the information being stored and the organization's legal obligations – whether under statute or pursuant to its contractual obligations. The fact that ownership of the device resides with the employee should not change this.
Responsibility. The BYOD policy should reflect whether the organization or employee will be responsible for the implementation of any such security-related requirements or practices. If the employee is responsible, the organization should consider what resources should be made available to the employee to enable the employee to implement any such requirements or practices.
The one issue that organizations find very challenging relates to the practice of "remote wiping." When an employer-owned device is lost or stolen, it is fairly standard practice for the organization's IT function to wipe the device of any data to ensure that data does not fall into the wrong hands. While employees may not be happy about losing personal data they have stored on the device, they tend to understand as the device is an asset of the company.
However, when the device is the employee's own device, the employee may view any wiping of his or her own personal data from his or her personally owned device as excessive. Accordingly, at a minimum, an organization's BYOD policy should make it clear that loss of personal data – whether in the context of remote wiping or in connection with any monitoring, support or other activities of the organization – is a possibility in the event a device is lost or stolen or upon termination of an employee's employment. Organizations should speak to qualified employment law counsel to discuss whether it may be required or worthwhile to adopt the additional step of having employees sign waivers under which the employee expressly consents to the wiping activities and releases the employer from any liability arising from such activities.
In addition, organizations should note that there are a number of technical solutions on the market that allow personal data on a device to be segregated from an organization's business information such that the organization's business information can be wiped from the device, without disturbing the employee's personal data.
MONITORING AND NON-COMPLIANCE
Monitoring. The BYOD policy should reflect the fact that the organization may monitor an employee's use of his or her device from time to time and state what expectation, if any, the employee should have. Consideration should be given as to whether to differentiate between monitoring of the business-related data on the device, as well as the personal data on the device. The BYOD policy may also set out who would be conducting the monitoring, to whom information on the device may be disclosed, and the purposes of the monitoring and of any collections, uses and disclosures of the personal data on the device.
Consequences of Breach. The BYOD policy will specify the organization's expectations regarding an employee's use of a device. It should also set out the disciplinary and other actions that may be taken when an employee does not comply with those expectations.
OTHER EMPLOYMENT CONSIDERATIONS
Overtime Claims. The implementation of BYOD policies and programs may tend to blur the line between work and personal life. Organizations must consider whether the use of mobile devices in general increases their risk of overtime claims for off-the-clock work performed by employees.
Leaves of Absence. Organizations must consider whether it is appropriate to allow employees on extended leaves of absence to continue to have access to company systems through their personal mobile device.
Reimbursements. Organizations will generally wish to modify existing expense reimbursement policies or to outline the expenses related to the personal mobile device that the organization is willing to cover in its BYOD policy.
Training. A BYOD policy will have little impact or enforceability if the employees are not made aware of the policy and provided with some training on the terms and conditions of the policy.
Consistency. As with all employee policies, the terms and conditions of the policy should be applied consistently to all employees who participate in the BYOD program.