1
Introduction
A. THE MOBILE TRANSFORMATION
The “Mobile Transformation” is underway. When we walk around our cities and towns, it seems that everyone has a smart phone in hand. In the office, at home, and in airports, tablet computers seem to sprout like spring flowers. Besides offering us voice, e-mail, and text com-munications on the go, our mobile devices are giving us access to the world’s information via the mobile Internet more or less anytime and anywhere. Mobile applications (“apps” for short) are giving us a huge variety of tools we can use for day-to-day tasks, in business, at home, for education, and as entertainment.
Available statistics back up this anecdotal impression of mobile device ubiquity. Information technology vendor Cisco reported in February 2013 that by the end of 2013, the number of mobile-connected devices will exceed the number of people on Earth, and by 2017 there will be nearly 1.4 mobile devices per capita.1 The amount
of mobile data traffic in 2012 was more than 12 times all Internet traf-fic worldwide in 2000.2 People are using their devices for more data
communications as well. The average smart phone data use grew 81 percent in 2012.3
For many people, their mobile devices have become an extension of themselves and have changed the way they live their lives. Consider this scenario of one person’s mobile device usage. On a typical work-day, her alarm clock starts playing music to wake her up or her smart phone wakes her up. Her smart phone is within reach on the nearby nightstand. She picks it up and starts reading e-mail as she walks out 1. Cisco Visual Networking Index: Global Mobile Data Traffic Forecast Update, 2012– 2017, 3 (Feb. 6, 2013), available at http://www.cisco.com/en/US/solutions/collateral/ns341 /ns525/ns537/ns705/ns827/white_paper_c11-520862.pdf.
2. Id. at 1. 3. Id. at 3.
2 A LEGAL GUIDE TO ENTERPRISE MOBILE DEVICE MANAGEMENT
of her bedroom and into the kitchen. As she sits down to breakfast, she turns on the nearby tablet and reads the news. Before leaving the house, she checks e-mail one more time, and then she is off to work. During the workday, she uses her smart phone as a cell phone and as a web browser. She uses its calendar for making and keeping appoint-ments. If she needs to drive anywhere, the phone provides GPS and maps for navigation. She communicates with clients and family via text. She uses the calculator app for some of her administrative tasks. She may use special work apps. By the time she arrives home and before dinner, she checks e-mail again. After dinner and family time, she plays a game and checks e-mail one last time. Then, as she turns in for the evening, she puts her phone back on the nightstand. The whole process starts over again the following day. I believe this scenario is typical for many smart phone users, and it is becoming increasingly common.
Again, statistics back up this scenario concerning the integration between people’s lives and their mobile devices. According to one sta-tistic, “91% of mobile phone users have the device within one meter of their bodies 24/7.”4 More modest figures come from Google and Ipsos
OTX MediaCT, which surveyed online adults in the United States and found that smart phone ownership in the U.S. was up to 44 percent as of the first quarter of 2012, and of smart phone users, 62 percent have used their smart phones every day in the past seven days and 80 percent do not leave home without their device.5 Although the exact
percentages vary, these statistics show that a large percentage of smart phone users have their devices with them, available for use, at all times.
B. PURPOSES OF THIS BOOK
This book is intended to help both lawyers and nonlawyers. In-house lawyers tasked with managing mobile device programs in their busi-nesses will be able to use this book to support their efforts, as will out-4. Brenda Dumont, The Rise of the Apps—Guest Blog by Bryan Rempel, President, Inter-Actions Social Media Services, Social Media Is Simple (Sept. 20, 2012), http://www.social mediaissimple.com/blog/the-rise-of-the-apps-guest-blog-by-bryan-rempel-president-inter actions-social-media-services.
5. Google Inc. and Ipsos OTX Corporation, Our Mobile Planet: United States 6–8 (May 2012) (survey results); id. at 40 (research methodology).
side counsel. This book will also support the efforts of professionals in the fields of information technology (IT), information security, records management, privacy, and human resources. It does not assume that readers in these fields have specific legal knowledge or training; instead, professionals in these fields can use this book to understand the funda-mentals of legal issues that apply to a mobile device program in their businesses.
This book serves several purposes. First, it explains why mobile computing and the consumerization of mobile devices are important issues for managing IT in an enterprise. For many IT professionals, mobile computing is one of the top technology concerns—if not the top concern—affecting the management of their areas of responsibil-ity within their businesses. Second, this book describes practical steps a business can take to establish a mobile device program. It discusses some of the key decisions and tasks a business will need to undertake as part of a mobile device program. Third, this book covers key legal issues involved with a mobile device program in the areas of discov-ery and records management, information security, privacy, protecting trade secrets and confidential information of the business, liability, and employment practices. Finally, this book provides information about documenting a mobile device program. The book contains a sample mobile device policy and an appendix of resources for mobile device management.
The “enterprise” in this book’s title refers to businesses of a certain size or larger that have a formal mobile device program. Businesses with only a handful of workers may not need to have a formal pro-gram. But for any business larger than that, this book will be use-ful to establish written policies and procedures concerning mobile devices. And even the smallest businesses will find this information helpful to manage their mobile device usage. The focus of this book is on the mobile program of a business. Although for many people, the word “business” connotes a for-profit enterprise, in this book, it also covers other entities, including nonprofits and government agencies.
This book provides a survey of the legal issues involved with mobile device programs. It does not go into a deep level of detail, as a legal treatise might. The following books can provide more detailed infor-mation for readers interested in these areas:
4 A LEGAL GUIDE TO ENTERPRISE MOBILE DEVICE MANAGEMENT
Electronic Discovery and Records Management
Michele C.S. Lange & Kristin M. Nimsinger, Electronic Evidence and Discovery: What Every Lawyer Should Know Now (2009). George L. Paul, Foundations of Digital Evidence (2008).
Information Security
Thomas J. Shaw, ed., Information Security and Privacy—A Prac-tical Guide for Global Executives, Lawyers and Technologists
(2011) [hereinafter “Shaw Book”].
Lucy L. Thomson, ed., Data Breach and Encryption Handbook (2011) [hereinafter “Thomson Book”].
Privacy “Shaw Book.”
Francoise Gilbert, Global Privacy and Security Law (updated 2012).
Trade Secrets
The author recommends referring to national trade secret trea-tises and state-specific materials available to practitioners locally. Liability Issues
“Shaw Book,” at 109–56. “Thomson Book,” at 31–48. Employment Law
The author recommends referring to state-specific materials available to practitioners locally, which will make reference to both applicable state laws and federal laws as interpreted by the U.S. Supreme Court and the local U.S. Court of Appeals.
C. MOBILE COMPUTING AS PART OF A LARGER
PICTURE OF TECHNOLOGY CHANGES
The American Bar Association Section of Science & Technology Law, under the leadership of 2012–2013 Section Chair Lucy L. Thomson, conducted a year-long exploration of the legal implications of the
Mobile Transformation and the explosion of mobile technologies and their uses around the world. Insightful lawyers and nonlawyer mem-bers of the section saw mobile adoption and realized that mobile devices are transforming our economy and our culture, and will impact our laws, the results of lawsuits, the way technology professionals man-age their enterprise information systems, and the way lawyers will con-duct their practices.6
The Section of Science & Technology Law is uniquely capable of providing educational materials and programs on the Mobile Transformation because its committees have been studying for decades legal issues arising from many aspects of technology changes. Concurrent with the Mobile Transformation is the growth of other technologies that are affecting our lives. Consider these technology developments of the last few years:
• The increasing power of computers and networks, coupled with miniaturization, making use of practically ubiquitous network access to make computers more powerful, easier to use, and geolocation aware
• Social networking (including the popular Facebook and Twitter platforms)
• 3D media and displays (think Avatar in 3D)
• Distance learning and meeting through inexpensive video conferencing (think Skype and Facetime)
• Cloud computing (think Gmail instead of Outlook for e-mail) These advances are already creating complex legal issues for existing practice areas. Examples include data protection, privacy, electronic discovery, and the admissibility of digital evidence. The Section has committees analyzing legal issues in all of these areas.
The Section is also looking at the Mobile Transformation as part of a larger trend of technology changes overtaking the world. In future years and decades, science and technology will radically change the
6. See Lucy L. Thomson, Message from the Chair, The SciTech Lawyer 2 (Winter/Spring 2013), http://www.americanbar.org/content/dam/aba/publications/scitech_lawyer/2013/winter spring/scitech_lawyer_winter-spring_2013.authcheckdam.pdf [hereinafter “Thomson”].
6 A LEGAL GUIDE TO ENTERPRISE MOBILE DEVICE MANAGEMENT
way we live our lives and the legal system. Examples of accelerating changes to come in upcoming decades include the following:
• The 3D Internet, such as World of Warcraft and Second Life. 3D Internet sites and applications will become as common as 2D Internet sites and applications are now.
• 3D displays and augmented reality. Mobile devices will be able to display images, video, and information in 3D. Augmented reality will be able to enhance information people can view of real, physical 3D spaces, similar to a heads-up display in air-plane cockpits and automobiles. Google Glass is one example of such a device.
• The brain-to-computer interface. The technology already exists to type on a computer using only your mind. Brain-wave sensors can power equipment and computer interfaces. More powerful technology is to come. (Think about access to com-puter files or sending e-mails with just your thoughts.) Some of this technology will end up on mobile devices.
• Personalized medicine, designer genes, prosthetics, artificial organs, and increased longevity due to advances in medicine. Mobile devices will permit doctors to conduct tests and proce-dures, such as electrocardiograms or ultrasounds, in the office, thereby allowing real-time results shared one-on-one with patients and saving costs of separate lab procedures using tra-ditional equipment.
• Nanotechnology that allows for the delivery of medicine, con-trol over the nervous system, and small-scale manufacturing of products. For example, researchers are working on artifi-cial red blood cells that can deliver oxygen to cells much more efficiently than ordinary red blood cells.
• Rapid advances in artificial intelligence and robotics. Machine intelligence will rival, and then surpass, human intelligence. Intelligent agents now on mobile devices, such as Siri, will become much more sophisticated and useful.
Lucy Thomson wrote in the Winter/Spring 2013 edition of The SciTech Lawyer that she wanted to catalyze a discussion among leading thinkers of national prominence—inventors, corporate advisors, and authors. That special Mobile Transformation edition of The SciTech Lawyer contains the writings of these famous thinkers as part of a
broader discussion of the impact of mobile devices. Thomson wrote about the larger picture beyond mobile devices:
The consensus is that human culture and the global economy are currently undergoing an enormous transformation. Some contribu-tors in this edition opined the magnitude of the event rivals the changes ushered in by the Industrial Revolution—but that was the conservative view. Others suggested that the transformation is actu-ally the biggest development since the printing press. It quickly became apparent that SciTech was identifying and attempting to describe issues of importance on the scale of centuries—if not mil-lennia. This is no hyperbole. Our contributors firmly believe we are entering a New Age.7
In terms of the impact of the Mobile Transformation and the larger technology transformation on law, Phoenix lawyer George Paul wrote,
This transformation necessitates a rewriting of rules, and of how we interpret existing ones. It affects how we resolve disputes and is revolutionizing what it means to be a lawyer. The legal edifice must immediately come to grips with the shocking Transformation ushered in by Earth’s several billion devices—explosively growing smaller, more intelligent, more interconnected, and ever more closely held to the human heart and mind.8
The upshot is that this book is only the first edition of what may be a radically different publication in decades to come. With fast-moving changes in mobile technology, we will need to update the informa-tion in this book on a regular basis. Moreover, the secinforma-tion’s publica-tions in other areas will become relevant to professionals interested in the Mobile Transformation. Stay tuned for more information from the ABA Section of Science & Technology Law on mobile computing in years to come.
7. Thomson, note 6 above, at 2.
8. George L. Paul, Transformation, The SciTech Lawyer 7 (Winter/Spring 2013), http://www .americanbar.org/content/dam/aba/publications/scitech_lawyer/2013/winterspring/scitech_lawyer _winter-spring_2013.authcheckdam.pdf.
