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Navigating Custody and Control: Ownership of Smartphone Data and Enforcement of Usage Policies

By Matthew Rasmussen
May 01, 2024

Today, there are over 6.92 billion smartphone users in the world, 280.54 million of whom are in the US. Nearly 100% of adults use smartphones every day, and not just to communicate with their family and friends. They are also using smartphones in their professional lives, to interact with customers, vendors, and colleagues in a business context. And why not?  Nearly every work-related platform can be routed through a single device: email, calls, Slack, Zoom, WhatsApp, productivity tools, and so on. Smartphones offer a streamlined hub for employees to do their jobs, from anywhere — so it's hardly surprising they are the preferred method of communication.

And why wouldn't companies let work trickle over into these devices? After all, smartphones unlock welcome efficiencies and productivity boosts, since work can continue outside of the office. And until very recently, employers have had little incentive to stop it; US law has been slow to catch up to modern communication practices, particularly when it comes to managing business-related data on personal devices and ephemeral apps (like WhatsApp). In investigations and legal proceedings involving businesses, electronic evidence has largely been limited to phone calls, emails, internal messaging platforms, and other more typical work surfaces.

Now, however, new regulations from the DOJ around the ownership and governance of company data on personal devices are catching up to the way the world actually works. It's going to make companies' lives a lot harder — and for precisely the same reason that smartphones have made their lives a lot easier.

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