Ya….I know. It’s been ages since I actually wrote a missive on this site. It’s not even worth spending any time explaining the chaos that my life has been the last few weeks. In any case, you might recall that I have on more than one occasion shared with you my concerns around how mobile technologies continue to outpace (perhaps at this point run laps around) the evolution of the legal system. We saw this happen many moons ago with the case of the City of Ontario (Californina) vs. Jeff Quon, and even more recently when MA representative Ed Markey proposed legislation for a new consumer privacy bill relating to the use of mobile devices. Unfortunately, the legal and legislative processes are much slower than the evolution of the technology industry…or the people using said technologies.
The latest example of this comes via an article at ArsTechnica. Once again, the 4th Amendment of the US Constitution comes into play – the amendment that protects individuals from “unreasonable” searches and seizure. Now, I don’t mean to get into the details of this specific court case, save one point:
Savage herself noted that the US Supreme Court has declined to provide guidance to lower courts. “Even the United States Supreme Court has struggled with the legal challenges raised by emerging technology, most especially in the realm of cellular phones and their contents,” she wrote. “Indeed, in City of Ontario [California] v. Quon [a case decided in 2010], the parties asked the high court to decide whether text messages should be afforded Fourth Amendment privacy protection. But the Supreme Court declined, choosing instead to decide the case on narrower grounds and allow this question to percolate in the lower courts.”
And that right there, ladies and gentlemen is the very core issue at hand.
In an enterprise context, the lack of guidance by the courts creates potential chaos for organizations, particularly as they craft and recraft their mobility policies. This isn’t even an issue of whether the device is owned by the employee or the employer (as evidenced in Ontario v. Quon).
You have to understand that if your mobility policy includes a provision that provides you the employer the right to review what is on your employees’ devices, you may very well get to a point where after many (expensive) legal proceedings that you can be found to have violated your employees rights. Even if the courts rule in favor of the employer (as they did in the Ontario v. Quon case), it will have taken months if not years to resolve.
I point specific blame on the legal and legislative systems. The people who write the laws are out of touch with the way people are using (mobile) technologies today, and those who are responsible for interpreting our existing laws have yet to provide any guidance whatsoever.
So, do I have a resolution for all this? Heck no….that’s way above my pay grade. The only point of today’s missive is to raise the proverbial yellow flag for you to remember that you need to have a well-crafted mobility policy….but also understand that (for now) there is no such thing as an iron clad mobility policy.