Can employers search their employees’ cell phones? Even though there is a well-established exception for warrantless searches related to lawful arrest, the U.S. Supreme Court, in Riley v. California, found that the search of cell phone data was “unreasonable” and thus unconstitutional based upon the substantial privacy interests at stake when digital data is involved.

In his opinion released last June, Chief Justice Roberts stated that the term ‘cell phone’ “is itself misleading shorthand; many of these devices are, in fact, mini-computers that also have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.”

The staggering amount of private personal information potentially accessed and stored on today’s smartphones led to the unanimous ruling (eight justices joining in the opinion, and the ninth concurring). That staggering amount of data should also cause employers to make sure they have taken steps to protect their rights as far as the data stored on their employees’ cell phones.

Also see: New age challenges for employee privacy

And while cell phone data is not immune from search, the general rule is that a warrant is required before searching the data.

The new Supreme Court ruling applies to searches by the government, but there could well be an impact on future review of employers’ conduct relating to their employees’ cell phone data.A few years ago in Ontario v Quon (2010), the Supreme Court unanimously permitted a city’s search of its police officers’ text messages, but found that search to be reasonable under the Fourth Amendment only because it was based on “non-investigatory work-related purposes.”

Like the police, public employers have to contend with the Fourth Amendment prohibition against “unreasonable” searches, but private employers also can risk invasion of privacylawsuits from disgruntled employees and must consider whether the employee has a “reasonable expectation of privacy” in the data stored on the cell phone.

Private employers have the ability to protect confidential and proprietary information and electronic data through use of contracts and adoption of policies and procedures defining the ownership of, access to and security required for use of such data by employees. Cell phone use policies should:

  • Confirm company ownership of business-related information and data in all formats which might be stored on or accessed through smartphones (such as email, contact information of company customers and employees, documents storage, photos, video and audio recording);
  • Require installation of security features and software to require use of password protection, permit location of lost devices and permit remote wiping of data from the device;
  • Spell out the employer’s right to access and protect its information and data even if contained on the employee’s personal cell phone;
  • Require surrender of cell phones and necessary passwords upon separation of employment for examination to accomplish removal of company information and data;
  • Confirm that, as with company email systems, the employee may have no reasonable expectation of privacy in devices used to store company data and to access company electronic information and communication systems;
  • Address permitted or prohibited use of company cell phones for personal purposes, as well as whether company business is permitted to be conducted on personal cell phones;
  • Address safety-related guidelines for use of cell phones (for example, while driving or working with certain equipment).

Cell phone use policies should be reviewed and updated. This can be extremely helpful when the issue arises, whether at the time of termination or in a later lawsuit.
Also see: IRS cell phone guidance clears the air

Careful decisions also should be made as to whether the company is better protected by owning and providing cell phones to certain employees – such as sales or customer relations employees – who can much more easily take away customers if they have been communicating via their personal cell numbers and personal cell phones on which they have stored valuable customer contact information in their call logs and email or text messages.

Walter Kruger is an attorney and arbitrator with Fisher & Phillips LLP. He provides employer protection and defense against employee legal claims and government agency investigations, trade secret theft and unfair competition from ex-employees, including employment litigation on a national basis.

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