December 16, 2011

In this article, Jenner & Block Associates William K. Pao, L. David Russell, and Jonathan D. Weiss discuss the serious legal concerns raised by the recent explosion in smartphone capabilities such as texting, checking business email, accessing social media websites, listening to music, watching movies, managing personal and/or work schedules, surfing the Internet and taking pictures, as well as the phones’ ability to collect information about the users even when users are not actively “using” their phones.  The authors note that these concerns have intensified as companies increasingly issue smartphones and other electronic equipment to their employees, blurring the distinction between public and private.  They analyze how courts have struggled to square decades-old privacy case law with this rapidly-evolving and paradigm-changing technology.  The authors conclude that “much like the technology it is supposed to regulate, the law on privacy is still evolving and has yet to mature.  But for now, employers seeking to draw clear boundaries should consider implementing and communicating policies that explicitly give them access to data on work-related equipment, including smartphones.  Likewise, employees enjoying the ‘perks’ of their new work phones should be aware of any company policies relating to their rights to those phones, lest they later be surprised that private and perhaps embarrassing (or, even worse, incriminating) information stored on their phones may be forcibly unveiled to their employers.”