Ohio Federal Court Addresses Privacy Rights around Employee Smartphones

by Ballard Spahr LLP

A recent Ohio federal court decision serves as a reminder that companies need to review their Bring Your Own Devices (BYOD) policies to ensure that employees are adequately informed about the communications that corporate employers can monitor during and after employment.

In Lazette v. Kulmatycki, the U.S. District Court for the Northern District of Ohio ruled that a former employer may violate the Stored Communications Act (SCA) by accessing electronic information through a company-issued smartphone after an employee has left the company. In this case, a former employee alleged that her former supervisor continued to read 48,000 personal e-mails on her company-issued BlackBerry for 18 months after she had turned in the device.

The employee was told that she could use the device for work as well as personal matters. Before she turned in the phone, she deleted her work e-mails, but inadvertently left her personal e-mail account accessible. Her former supervisor continued to read opened and unopened mail until she changed her password.

A violation of the SCA occurs when someone "(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains… access to a wire or electronic communication while it is in electronic storage in such system[.]" The court rejected the defendants' argument that the SCA's congressional intent is to reach computer hackers only. It found that the Act's purpose is generally to "prohibit persons and entities from intentionally accessing electronic data without authorization or in excess of authorization."

The court highlighted that the employee "neither knew nor approved" of her supervisor accessing her personal e-mails. And even if the employee inadvertently left her personal e-mail account accessible, such actions would not establish "implied consent," as the employee was unaware of the possibility that others might access her future e-mails from the account.

The court was careful to distinguish between the employee's e-mail account—which was a "facility" under the SCA—and her computer or BlackBerry, which were not a facility. This ruling is consistent with the Fifth Circuit's recent ruling in Garcia v. City of Laredo.

The court also found that protection under the SCA only extended to personal e-mails that the employee had not opened. E-mails that had been opened and not deleted did not constitute "electronic storage" because they were not being kept "for the purposes of backup protection." As a result, the supervisor's reading of the previously opened e-mails may not violate the SCA. This finding highlights a current split among the U.S. Courts of Appeals, some of which, including the Ninth Circuit, have held that opened e-mails are protected under the SCA.

The Lazette case is a timely reminder to corporate employers with dual-use policies that employers do not necessarily have unfettered rights to all communications that exist, or may be accessed, through a company-provided device or computer. To the contrary, access to accounts protected under the SCA requires explicit employee consent.

The webinar "Avoiding the Pitfalls of 'Bring Your Own Device' Policies," presented on June 12, 2013, may be of interest. Slides and a recording of the webinar are available for your reference.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ballard Spahr LLP | Attorney Advertising

Written by:

Ballard Spahr LLP

Ballard Spahr LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.