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Digital File Storage and Recovery

in addition to the widespread personal ownership of mobile digital devices, many employers provide cell phones and tablets to their employees. Some employees purchase the device through their employer and use that personally-owned device on the employer’s network. An increasingly more common way of managing workplace communications is to have employees bring their own digital devices to work—with more and more companies establishing bring your own device (“BYOD”) policies that specify what workers need to do in order to connect their personal devices to the employer’s network, no matter where the devices were purchased. With decreasing frequency—see the epic decline of the BlackBerry—

employers will provide to their employees mobile devices that remain the property of the company and must be returned to the company when the employment ends.

No matter who owns the digital device, the employer has the right to establish a condition of employment that any communication by the employee on the employer’s network is not private. But that condition of employment must be unambiguous and evenly applied to be enforceable.2And even where it is, such a policy may not authorize every search of the device that the employer may wish to undertake, as discussed in Section E, infra.