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The Modern Workplace

Company Smartphones: Whose Data Is It?
Many companies purchase smartphones or cell phones for employees use, or pay all or part of their employees phone service fees.  Employees see this as a great job perk, and employers like the increased productivity and accessibility that results.
So, what happens when an employer needs to do an investigation -- perhaps because of a complaint of harassment, or worries about leaks of confidential information -- and  wants access to the data? Many employers assume that because they pay for the service, they can gain access to the text messages and emails that have been sent from their employees devices.  Not so.  Under the federal Stored Communications Act and Chapter 626A of the Minnesota statutes, electronic communications providers cannot disclose the content of the messages stored in their servers to the subscriber of the telephone service. Only the sender, addressee, or recipient may access that content. Ouch!


Fortunately, there is a solution to this problem -- but it requires preemptive action by the employer. Under the statutes, the sender, addressee, or recipient may provide consent which allows others to access the data. Employers who want the right to access cell phone or smartphone data should obtain specific written consent from employees, including permission to access the content itself and the logs concerning text messages, calls, emails, photos, video, and search history. Consent may be hard to obtain during an investigation; therefore, the careful employer will obtain that consent well in advance of any need to access the data.

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The information contained in this post is provided to alert you to legal developments and should not be considered legal advice. It is not intended to and does not create an attorney-client relationship. Specific questions about how this information affects your particular situation should be addressed to one of the individuals listed. No representations or warranties are made with respect to this information, including, without limitation, as to its completeness, timeliness, or accuracy, and Lathrop GPM shall not be liable for any decision made in connection with the information. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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