Considering implementing BYOD? Have people under 30 working for you? Then you better be aware of the findings in a recent survey from TrackVia (http://recode.net/2014/07/20/got-a-byod-problem-blame-the-millennials-you-just-hired/). This company, which designs custom apps for corporate clients, says that millennials (adults aged 18 to 33, per the Pew Research Foundation) are the most likely to push for BYOD technology in the office.
However, BYOD by itself is not really the issue. In fact, a recent Gartner survey, suggested that more than half of companies will soon require their employees to bring their own phone or computer to work . The issue is that BYOD tends to be a privacy and security challenge for IT and corporate security departments when employees use Web and phone apps with company data. This may well violate corporate policies.
The survey noted that “70 percent of millennials admit to breaking corporate rules around using outside apps”, whereas 69 percent of older workers said they don’t break the rules. What’s particularly interesting about millennials’ disdain for IT policies is that many of the newer cloud software services actually rely on them to break company rules.
BYOD has many benefits for both employees and employers. However, implementing BYOD has potential security and privacy risks that must be addressed by an organization.
Waiver of privilege raises a red flag in the discovery process. In Nova Chemicals (Canada) Ltd. v. Ceda-Reactor Ltd., 2014 ONSC 3995, the Court confirmed why waiver of privilege does not need to be intentional – it may be implied based on the circumstances. The Court described the application of the test for waiver of privilege as follows:
An express waiver of privilege will occur where the holder of the privilege (1) knows of the existence of the privilege and (2) voluntarily evinces an intention to waive it … Despite these requirements, an implied waiver of … privilege may occur where fairness requires it and where some form of voluntary conduct by the privilege holder supports a finding of an implied or objective intention to waive it.
The Court in Nova Chemical ultimately concluded that the defendant was not justified in asserting a privilege claim over documents its senior employee had disclosed to the plaintiffs years before the litigation commenced. Privilege was waived by that disclosure.
The Court said that it would be unfair to “deprive [the plaintiffs] of the ability to make continued use of evidence which came into their possession, without any fault or improper conduct whatsoever on their part, long before the plaintiffs’ ultimate decision to proceed with commencement of formal and expensive high stakes litigation”. The Court also determined that the effect of waiver could not easily be eradicated because the documents in question had been reviewed, digested and studied at length by the plaintiffs and their counsel.
Attention to the Court’s analysis of “fairness” in this case is instructive to counsel when determining whether incurring the cost to assert or oppose waiver of privilege makes sense in the circumstances of a case.
Informational Privacy vs. Law Enforcement and National Security: Is Canada Failing to Strike a Balance?
The potential curtailment of informational privacy under the new information sharing provisions in Bill C-24, an Act to amend the Citizenship Act (the Strengthening Canadian Citizenship Act) has received little attention amidst heated debates over other provisions of the Act such as the Minister’s new power to unilaterally revoke Canadian citizenship in extreme cases. New sections 27(1)(k.2) to 27(1)(k.4) of the Act, however, provide for the disclosure of citizenship and immigration information to other governments for “purposes of national security or the conduct of international affairs”. The details are sparse, but Bill C-24 could empower Canada to share citizenship and immigration information details with foreign governments whether verified or not, and without oversight.
There are at least two faces to the issue of information-sharing between governments. The first depicts the conventional view that such information-sharing will enhance national and global security. The second depicts the darker side, in which individuals’ privacy rights are infringed with potentially devastating consequences.
Canadians have traditionally benefited from a reasonable standard of protection of their personal information – Canada being among the first jurisdictions to promulgate fairly stringent privacy legislation. The information-sharing provisions of Bill C-24, however, continue a trend in Canada to tip the balance in favour of law enforcement and public security over informational privacy.