The Technology and Marketing Law Blog recently had a post describing an employer lawsuit that included privacy infringement based claims against an employer for intercepting iMessages using his company supplied iPhone. Although the California Court ultimately rejected the claim, it had an interesting fact pattern that raises concerns for attorneys and employers.
The employee in the claim had been issued an iPhone from his employer. Upon being issued the iPhone, he associated the phone with his personal Apple iCloud account and enabled Apple’s iMessage. iMessage, unlike standard SMS text messages, allows sending and receiving text messages without an active cellular number. This means that if you register your cellular number with iMessage, your Apple account will allow you to send and receive iMessages on other devices with a broadband connection, even if you have no cellular connection. When you switch to a different cell phone (even if it is another iPhone), you must disable iMessages, or else your old iPhone will continue to receive iMessages if it is on a WiFi network, or another cellular account is registered with it.
The problem is that after the employee’s employment ended, he returned his company issued iPhone, and did not wipe the device or disable iMessages. The employee claims that his former employer continued to receive and review his text messages since his Apple iMessage account was not disabled. The California Court ultimately decided that the employee had no privacy claim against his former employer.
The reason that I found this case interesting, is because I am sure that there are plenty of attorneys in Delaware that are issued iPhones and/or iPads by their employers. This immediately causes concerns for me about employees taking steps to make sure that their data cannot be accessed once they leave their current employment. If you have linked a personal Apple iCloud account to your iPhone or iPad, some of your data created after starting a new job, may be accessed by a former employer. Both messages sent and received by iMessage, as well as any data stored in iCloud, may continued to be accessed on the old device until the Apple iCloud account is removed or your password is changed.
If you are currently using iMessages and iCloud on your employer-issued iPhone or iPad, you will want to make sure that you sever any connection before your employment ends. If you do not, there is a chance that text messages you receive in new employment may be intercepted by a former employer. If you are an employer issuing iPhones or iPads, you will want to have a clear policy on the type of personal information and accounts permitted on a company issued iDevice. Even for an employer, concerns arise that after an employee is terminated, information that was saved to iCloud (like documents created in Pages or Keynote) may continue to be available to former employees. For a managing partner at a law firm you need to know how confidential materials are being stored.
I would recommend not using iCloud and iMessage on any employer supplied iPad or iPhone. Although this eliminates some of the benefits of these services, it protects both an employee and employer from the concern of confidential information being accessed after the employment relationship has ended. Beyond the concern of private personal data being accessed, if an attorney has an old iPhone/iPad that is still receiving data from iCloud that can potentially be accessed by a former employer, there is a very real chance of violating your obligations under Rules 1.1 and 1.6 of the Delaware Rules of Professional Conduct. If you do use iMessage or iCloud, and you are not able to disable these services when employment is terminated, it is important that you immediately change your iCloud password to protect your data. Changing your password should protect you against a former employer accessing documents and data that apps store in iCloud. You should also contact Apple Support to have your old phone number deregistered from iMessage.
See Sunbelt Rentals, Inc v. Victor for the California District Court Decision.