Personal Email Privacy in a BYOD Environment - A View from the Bench

by Pillsbury’s Social Media & Games Law Blog

We recently posted a three-part series on BYOD issues in this blog. A primary theme was the inherent tension between employer control and employee privacy in a BYOD environment. In a recently reported case out of the Northern District of Ohio (Lazette v. Kulmatycki), the courts had an opportunity to clarify how to walk this tightrope. Unfortunately, in struggling with existing (and somewhat inadequate) laws, the result seems to have made the rope even more fine rather than clarifying a path across the divide.

Background of a BYOD Case
The case begins with a corporate-liable Blackberry device of a former employee (Lazette) being turned into the employer upon separation. Lazette dutifully deleted her personal email account from the device before returning it to her employer - or so she thought. For whatever reason, her personal email account remained, and her former boss (Kulmatycki) proceeded to read some 48,000 personal emails over the course of the ensuing months.

The headline from the case is that the boss was at fault for reading the emails. This result "feels" right. After all, Lazette no longer worked there, so why was Kulmatycki reading her personal emails - even if he may have had the right to do so when she was still an employee and had personal email on a corporate-liable device.

What is more interesting about the case is the way in which the court twisted and turned existing laws that did not quite fit the situation.

Laws Addressed by the Court
Law #1: The Stored Communications Act (SCA). Loosely speaking, the SCA protects against intentional access to stored electronic communications. As relevant here, the case notes that the SCA only applies to "storage," meaning held "for the purposes of backup protection." The court then reasons (with curious logic) that emails that have not yet been read are within this definition of "storage," but that those that have been read but not deleted from the inbox are not held "for the purposes of backup protection" and are thus not "stored" under the SCA or subject to the SCA. The upshot ... those emails Lazette read before Kulmatycki got to them are not protected under the SCA, while those she read after are.

Law #2: Anti Wiretapping Laws. Anti-wiretapping laws generally prevent the unauthorized interception of communications. The court considered whether Kulmatycki "intercepted" Lazette's communications. Because the communication had already been sent to Lazette's computer when it was also sent to the Blackberry, the court found that Kulmatycki had not "intercepted" Lazette's emails and the wiretapping laws were inapplicable. Under this logic, it would be interesting to consider if Lazette could demonstrate that her computer was offline while Kulmatycki received and read certain emails on the Blackberry, those emails would fall within the wiretapping laws.

Law #3: Invasion of Privacy. The court did not ultimately decide whether Lazette's rights of privacy under Ohio law were violated, but acknowledged that Ohio's privacy law could apply if the right constellation of factors aligned. This would be a factual determination as to whether Lazette had a reasonable expectation of privacy and would be subject to state law (meaning that the same facts could conceivably lead to different results in different states).

At a macro level, this case should be a warning to employers to continue to be careful with personal information in a BYOD environment. The court ultimately held that there was potential liability for Kulmatycki's actions. The potential liability for employers could be significant.

Perhaps more interestingly, this case demonstrates how difficult it can be to apply existing laws to new technologies and the new issues they spawn. Predicting how a court will rule in a particular instance becomes immensely difficult. So, when your lawyers say "it depends" and "we had better be careful," don't be annoyed. Understand that they are trying to help you walk a tightrope in a brave new world where courts are doing their best to apply laws that do not quite fit to the "bleeding edge" legal issues of the day.

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.

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