Bring Your Own Device Policies: A Strategic Guide for Regulated Industries

These policies have gained traction due to their potential to increase productivity, reduce company costs, and provide employees with flexibility. The potential benefits of a BYOD policy, however, must be assessed alongside the challenges and risks they present. For organizations in heavily regulated industries like health care, finance, and energy, the adoption of a BYOD policy can pose unique challenges.

Understanding the Risks

The primary risk associated with BYOD policies revolves around data security and confidentiality. Personal devices used for work purposes can become gateways for data breaches, leading to the potential exposure of sensitive company information. Regulatory non-compliance is also a significant concern, as failure to protect client or patient data can result in substantial penalties. Moreover, personal devices can complicate the discovery process in litigation. Identifying, preserving, and collecting relevant data from these devices can be a complex and costly endeavor. Failure to do so appropriately can lead to sanctions or claims of spoliation.

Secure BYOD Policies

In simple terms, a BYOD policy can potentially expose your company to legal, security, and reputational risks. Hence, it might be more advisable to implement a dual device policy, where business dealings are restricted to company-provided devices. However, the undeniable cost savings and convenience of a BYOD policy cannot be overlooked. To guarantee the security of your company's data on employees' devices, you should consider several best practices.

Establish Clear Policies and Procedures

Avoid an implied BYOD policy. Your BYOD policy should be written and clearly outline the responsibilities of both the employee and the employer. It should specify which types of data can be accessed on personal devices, how data should be secured, and what happens if a device is lost or stolen. It should also outline the circumstances under which the employer can require the employee to have their device collected or imaged, usually in response to a subpoena or litigation.  This policy can be standalone or included as a section in the employee handbook. Employees operating under the policy should also be required to sign to verify that they have read and understand it.

Implement Robust Security Measures 

This may include password protection, encryption, and the ability to remotely wipe devices. Enforce the use of strong passwords, biometric authentication, or multi-factor authentication to access company data. Ensure that all data is encrypted when stored on the device and when transmitted to and from the device. Regular security audits can also help identify and address vulnerabilities.

Provide Training and Education 

Employees are often the weakest link in data security. Regular training can help them understand the importance of following security protocols and recognize potential threats. Employees must understand the role they play in keeping company data safe.

Ensure Compliance With Regulations 

Your policy should align with industry-specific regulations concerning data protection. This may involve collaborating with legal counsel to understand the applicable rules and how they apply to your organization.

Consider Mobile Device Management (MDM) Solutions 

These solutions can provide an extra layer of control, allowing you to enforce security policies, manage device settings, and even separate work and personal data. In case a device is lost or stolen, these systems can allow for the remote wiping of data. An MDM can also help ensure that all devices are kept up-to-date with the latest security patches and updates.

Prepare for Discovery 

Discussed in more detail below, your policy should also anticipate potential litigation and establish procedures for preserving and collecting data from personal devices.

By carefully crafting and implementing these policies, companies can maximize the benefits of a BYOD policy while also minimizing potential hazards.

Government Requests for Information

In a world with ever-increasing government oversight, especially for companies in heavily regulated industries, it is not a matter of if a company will be the subject of a government investigation, but when. When your company falls under such an investigation and you have a BYOD policy in place, it is inevitable that the corporate information requested by the government to fulfill the subpoena or civil investigative demand (CID) will be located on your employees' mobile devices. Regardless of whether any wrongdoing is uncovered, the US Department of Justice's (DOJ) Principles of Federal Prosecution of Business Organizations make clear that full cooperation from both your company and employees is vital to minimize liability and exposure. To this end, your legal and IT departments should consider the following.

Issue a Legal Hold Notice

Upon receiving a government demand for data, promptly notify employees about the need to preserve all relevant company data on their devices. Detailed instructions on what data to preserve and how to disable automatic data deletion should be included.

Engage your IT department to ensure they understand and implement the legal hold properly. Directly contact custodians with mobile devices to assist with the preservation process, as technical proficiency may vary.

BYOD policies can complicate data preservation due to limited company control over devices. Failure to preserve data after a government demand, whether intentional or not, could risk loss of cooperation credit or lead to a spoliation claim.

Determine the Scope of the Investigation

The government defines the scope of its investigation and the data required from your company. To limit data exposure, your attorneys and government officials should negotiate search terms and document custodians.

Employee consent and assistance in data collection are ideal, but this process can raise issues around privacy expectations and individual resistance to surrendering data. If an employee refuses access to their device, even under an independent subpoena, your company must manage the situation carefully. Any indication of supporting or tolerating obstruction of the investigation could diminish your company's cooperation credit during resolution.

Collect and Produce Relevant Data 

Upon determining the data needed for the government, start the collection process. An eDiscovery and IT vendor can assist in creating a protocol for gathering text messages, emails, and documents from devices. If business is conducted on company phones, data is simply mirrored and filtered for relevancy. However, due to evolving mobile technologies, forensic vendors might need to collect entire devices or cloud-based backups.

A BYOD policy means potentially collecting entire personal devices and relying on employees' honest reporting of business contacts for search and review. Beyond the risk of spoliation and obstruction, using personal devices for business necessitates careful handling to prevent disclosure of personal, health care, or banking information.

Before your company becomes the subject of a government investigation, it is crucial to ensure that the policies you have in place will protect your company. At ArentFox Schiff, we stay abreast of technological advancements and can assist you in foreseeing the challenges that emerging trends, such as BYOD policies, may pose to your company.