Data Protection Implications of a Bring Your Own Device Policy

BYOD is an acronym for ‘bring your own device’ and refers to a policy which an employer may implement to regulate the use of personal devices for work-related purposes at the workplace. Such a policy would regulate how employees access privileged company information and software on their personal devices, which devices would be connected to the corporate network. An effective BYOD policy is essentially a set of rules which establishes the level of support which an IT department may provide to employee-owned devices used in the workplace, while safeguarding both employers’ and employees’ interests.

An analysis of such policies in the context of the EU General Data Protection Regulation (GDPR) may raise a number of potential privacy issues. It is therefore critical for employers to ensure that their BYOD policies are compliant with the GDPR.

EMPLOYEE PRIVACY

Personal devices used at the workplace will principally contain two types of data: company data and employee personal data. Company data includes any sensitive, confidential information about the company itself or about the company’s clients. Employers must ensure that employee privacy is respected and thus it is important that company data and employee personal data are kept separate and that the employer does not have access to the employee’s personal data.

Recent developments have highlighted that excessive employee monitoring and a failure to respect employee privacy by an employer is in breach of data protection legislation. In fact, a recent investigation conducted by the Information and Data Protection Commissioner in Malta led to a local bank, HSBC, being fined €5000 for monitoring an employee’s bank account.

An employer would need to ensure that there company data is separated from employee personal data and if this is achieved, the BYOD policy will not infringe on an employee’s right to privacy. In order to separate employee personal data from company data, and thus to mitigate data privacy risks, employers may resort to a mobile device management solution, which allows for the isolation of personal data and restricts the actions users can take with regard to corporate information.

Deletion of company data upon termination of the employment relationship

An issue which needs to be regulated when formulating a BYOD policy is the procedure for deletion of company data stored on an employee’s personal device, in the event that such employee is dismissed or resigns. Given that when employees use their personal devices for work, such devices will contain a combination of both personal and company data, employers should consider ways in which the employer can remotely wipe any personal data processed during the course of business without deleting the employee’s personal data.

Thus, upon termination of an employee, an employer must strike a balance between respecting an employee’s right to privacy by ensuring that no personal data pertaining to the employee is deleted or lost during the process of wiping the device and being able to delete any company data from the device upon termination of the employee so as to protect the company’s interests.

Personal Data Breaches

Given that a BYOD policy leads to the possibility of company data being stored on employees’ personal devices, a data breach procedure needs to be adopted by the employer. Employers should therefore take all necessary steps to provide employees with training on what constitutes a data breach  to ensure that employees know to report any alarming incidents.

A controller must report a data breach which is likely to result in a risk to the rights and freedoms of natural persons to the Maltese data protection authority, the Information and Data Protection Commissioner, within 72 hours of having become aware of it. Should the data breach be considered high risk, the controller may also need to notify the data breach to the data subjects, as it would be in their interest to be aware that their personal data has been compromised. Typical examples of situations which may give rise to a data breach include theft or loss of a personal device used for work purposes under a BYOD policy, as well as third party gaining unauthorized access to a personal device on which personal data held by the company is stored  (e.g. hacking).

In protecting company data, employers should also insist that employees utilize all the security features on their personal device in order to protect company data. Security features may include the password protection, multi-factor authentication as well as automatic locking when devices are left idle for a particular period of time. Such measures minimize the risk of a data breach which may be costly to employers – both economically, as well as in terms of reputational damage.

Since it is in the best interest of the employer to ensure the safety and security of a device being used for work purposes, the tools used by an employer may often track the device’s location, usage patterns and internet traffic. Where personal data is processed by the employer in the course of monitoring IT usage of employees, an employer must inform the employees of the method through which employees are monitored, the data being collected and how such data is being processed. An employer needs to be cautious when processing such data as this may be considered to be monitoring of employees, which may infringe on an employee’s right to privacy.

Mitigating Risks

BYOD policies have become increasingly popular in recent times, since employees request more flexibility from their employers and employers expect employees to be reachable outside of business hours. The GDPR highlights the importance of data visibility in that the data controller is responsible for ensuring that the personal data is always being processed in accordance with the GDPR and therefore, allowing employees to use their personal devices for work purposes without a comprehensive BYOD policy is inherently risky from a data security perspective.

The GDPR binds a controller to implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems, as well as the ability to restore access to personal data in a timely manner in the event of a physical or technical incident. A company which implements a BYOD policy must thus ensure that it is able to demonstrate an adequate level of security compared to the risks arising from a BYOD policy. A company may assess the impact which a BYOD policy may have on business operations prior to its implementation by conducting a data protection impact assessment.

The use of personal devices by employees could also lead to issues arising from lack of compliance with personal data retention policies. The GDPR states that personal data should not be kept for longer than necessary, and time limits should be established for erasure of data. An employer must thus put in place appropriate record keeping practices which are followed by employees. This will ensure that any personal data processed during the course of business is not retained for longer than absolutely necessary on any of the employees’ personal devices used for work purposes.

In order to mitigate risks, an employer must ensure that it is able to demonstrate GDPR compliance at all times. Employees should be regularly trained with respect to their rights and duties with regards to the processing of personal data.

For further information about how GVZH Advocates can help you with your data protection legal requirements and to enquire further about your new obligations under the GDPR, kindly contact us here.