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Hastings Constitutional Law Quarterly

Authors

Julie Chow

Abstract

The advancement of technology-specifically in the form of electronic communication devices-has given rise to a new phenomenon known as "Bring Your Own Device," or "BYOD," whereby employees use their personal electronic devices, such as smartphones, laptops and tablets, for work purposes. While this growing trend may be beneficial to employers and employees, it raises potential problems, especially in the area of employee privacy for those who work in state and local government. The extension of BYOD practices to public employers and government agencies raises Fourth Amendment concerns regarding whether employers may search these employee-owned devices for work purposes in the absence of departmental policies, and if so, under what standards.

Relying on O'Connor v. Ortega and City of Ontario v. Quon, the courts have created a reasonableness test to assess government workplace searches. The test is yet to be tested on BYODs, and does not distinguish between non-investigatory, work-related searches (such as those conducted for inventory purposes), and investigatory searches for evidence of workrelated employee misconduct. However, the investigatory process implemented in civil service employment places the employee and employer in an adversarial situation and gives an employer wider latitude to gather evidence against the employee. Employees are in a vulnerable position with limited safeguards to protect the privacy of their electronic devices. This calls for a revised framework for employee-owned devices in workplace searches.

This Note advocates that applying current standards to employeeowned electronic devices would be detrimental to the privacy rights of employees, given the existing vulnerabilities, and recommends that the probable cause standard be applied for investigatory searches of BYODs since no special needs exception exists. This standard is appropriate when weighing the employee's interests against the employer's, given the limited usefulness of the sought-after information and the greater intrusion imposed on the employee.

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