In a 2008 case, a federal court ruled that text messages on police department-paid pagers belonged to the police officers, not the police department, because the messages were stored by a carrier. The department wanted the messages to see which were personal so that they could calculate how much the officers owed the department for personal use. Vogel says this case was decided on very narrow grounds -- the fact that the messages were stored at the carrier, which is subject to different laws than a company that stores its own records -- but nonetheless raises the kind of ambiguity sure to surface as smartphones are used increasingly for both personal and corporate activities.
You might try to deal with these and other issues through employment agreements, Vogel suggests.
"Generally employees are bound to the terms of employment agreements," he explains. "So if the employment agreement states that the employees provide their own PDAs or smartphones but the employer pays a monthly allowance, one would have to look at the terms of the employment agreement to see if the employee is entitled to privacy."
But "generally just having a corporate policy is not enough without some affirmation of the employees to agree," Vogel notes. "Companies run the risk that courts will conclude that even though corporate policies are in place, they are either unenforced or selectively enforced. As a result, without rigid enforcement, a company cannot depend on the courts to adopt these corporate policies regarding who owns emails and text messages and who is entitled to privacy."
Another issue: What information on these devices is discoverable in a court case?
"Every state is wrestling with this," says Telwares' Voellinger. "Pennsylvania, for example, assumes that the moment information goes out onto public networks, it's discoverable." That could cover anything delivered through the Internet, for example, which smartphones and PCs use routinely.
The practical issues of personal smartphone use
Beyond the law are practical considerations: If an employee uses a personal smartphone for business purposes and then leaves the company, customers and partners can still contact that former employee -- and may not know how to contact his or her replacement. If the company issues the smartphone, the phone number can be moved to another employee, Voellinger notes. But this risk is not that new nor is it smartphone-specific.
Moreover, although BlackBerrys, Windows Mobile devices, iPhones, and Palm Pres support remote-wipe capabilities, there's a risk that an employee-owned device could still retain corporate data when the employee leaves, Voellinger says. The risk here can be largely managed by requiring employees to use smartphones that meet specific requirements, so the devices you let access your networks are ones you know you can manage as needed, no matter who owns them.
Some employees may be less apt to answer a personal smartphone after hours when it is subsidized by the employer than to answer a work smartphone issued by the employer, Voellinger says. The reason: The employee figures the subsidy just applies to work hours, especially if getting reimbursed for extra work usage is a painful process. On the other hand, if the phone is routinely used for work and business purposes, there may be no rigid work/home time boundaries in the employees' mind.