In many companies, it is common for employees to use their own devices for work purposes. The keyword is BYOD (Bring Your Own Device). But what happens if such a device compromises the security of the infrastructure and the private devices of employees have to be examined for IT forensics? Is that allowed?
Many companies had to send employees to the home office and were thus also dependent on the use of private devices. In this short time, it was hardly possible for a company to purchase notebooks for all employees. Cohesion was required and was also lived. Those who had nothing in the way of equipment were provided for, those who could contribute did so. There is hardly an employee who spends a lot of time at the computer at work who doesn’t have at least one laptop at home. If you look at the smartphone statistics (according to Statista), the number is the number of smartphone users in 2019 in Germany at about 58 million people, and rising.
The advantage is obvious and the company was helped, because so costs were saved. Especially at this time when every entrepreneur is turning over pennies 4 times over to steer the company through the stormy waters of the pandemic to survive with as little damage as possible.
What security risks are hidden when using private devices?
Their IT is encountered by different devices with different programs that are not aligned with your IT security network. The company’s control over these devices is largely removed. A uniform IT security level cannot be implemented. Personal data and trade secrets are also processed on these devices. In order to meet the requirements of the GDPR Art. 32, the responsible party must come up with some ideas. If a data protection incident occurs, then the responsible party is liable pursuant to Sec. Art. 33 and Art. 34 GDPR and must clarify the incident. This is followed by the obligation to report the incident to the authority, to notify those affected and he must take precautions to ensure that no further incidents of this kind occur in the company. For these measures, he needs information from the BYOD devices.
Private devices – and now?
If it is the usual constellation – professional devices – professional investigation of the person responsible – an IT forensic investigation is usually not a problem. If a serious incident occurs, there is no alternative. In this case, the responsible party may rely on its legitimate interest pursuant to EC 49. Art. 6 par. 1 lit. f GDPR or, as the case may be § 26 para. 1 p. 1 or p. 2 BDSG appointed.
But what happens when a BYOD device needs to be accessed to resolve the incident? If the device is the employee’s private property, the employee may object to the company examining his or her private device for understandable reasons.
Is there a duty to surrender for the employee?
No, the employee does not have to hand over their device. However, the device may be seized as evidence. The problem is that data protection and IT security incidents are often a matter of minutes to contain the threat. A court order for seizure often comes too late and the evidence can still be disposed of in time. The fact is, if the employee refuses, the company has virtually no chance of getting the device in time.
If the use of BYOD devices is planned or implemented despite security and privacy concerns, a strategy must be developed. This consists of technical and organizational measures and can in any case mitigate a risk. In the technical area, virtualization techniques and container solutions are a good choice. The advantage of container solutions, it is separated private from professional. But that alone is not enough. Information processed on the workstations or laptops may only be stored on the company’s network drives. In this way, technical access to the device is granted in the event of an emergency so that, in the worst case, the user can even delete official content. Remote access to certain system resources for the purpose of IT forensic investigations is also important.
Organizational approaches to solutions
Such access must also be legally robust. It requires the conclusion of a suitable user agreement with the respective employees. If an employee refuses and does not wish to grant the right of access, a device shall be provided to him/her. Otherwise, the company will have a problem with the required voluntariness, as the aforementioned legal bases reach their limits when it comes to private and personal data. You can’t avoid automatically processing this during an IT forensic investigation. I.e. only voluntary consent for the procedure justifies access to this data.
With BYOD, we have issues with IT security, legalities, access to devices, and IT forensic investigations. If these points are not implemented, the company will have to bear the damage in the end. It must therefore be carefully considered whether it is not expedient to make devices available to the respective employees. If this is not possible, then precise rules of use must be established in order to be prepared for conflict situations. u