Rights to Information

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bb torchI have been using a PalmPilot since the early 1990s and have accumulated around 6,000 contacts. I was issued a BlackBerry by my employer and decided to import all my contacts into the BlackBerry. I was let go from my position and was asked to turn in the BlackBerry. I asked if I could download my information from the BlackBerry before returning it and was told ‘no.’ Immediately after I turned it in, the password was changed, so I couldn’t access the data remotely. All my recent contacts had been added directly into the BlackBerry, so the old PalmPilot is not up to date. I called the Internet provider who operates the enterprise server at my old employer and was told the mailbox was closed.

“When I first joined this company, I signed a non-compete agreement, but this was terminated when I was let go; so that is no longer in effect. When I called to see if my last paycheck was ready, I asked if I could bring my laptop with me and download my information and was told the BlackBerry had ‘locked up’ on them and had to go back for repairs. When it was returned from being repaired, I was told it had been wiped clean. But right after I was told it was in for repair, I called it and the person who told me it was out for repair answered it. Even if it had been wiped out, the contacts are still on the enterprise server. Do I have legal rights to my contacts and information that I put on their BlackBerry, especially since they voided the non-compete agreement? How would I go about getting my information back?”

All of my readers who use a BlackBerry, Treo or other handheld personal digital assistant (or PDA) device in their “day jobs” but are doing entrepreneurial stuff on the side, read the above and be warned: This can happen to you, too. While there’s no doubt the reader’s former employer is playing “hardball,” I’m sad to report that they probably have every legal right to do so.

When you are an employee and your employer provides you with a computer, laptop or PDA at their expense (they pay for the hardware and the cellular service contract), anything you put on that device is considered “work made for hire” and belongs to your employer, not you. Even without a non-compete agreement, you have a legal duty of fidelity and loyalty to your employer, which obliges you not to use any of that information in a manner that would be detrimental to your employer’s interests.

In this case, the reader obviously had put “personal,” non-business contacts (and perhaps also contacts relating to a sideline business or other outside activities), as well as business contacts on his business BlackBerry that belonged to his employer. That was a dumb move. You could explain this to your former employer and ask that you be allowed to separate out and download just the non-business contacts, However, by doing that you are admitting that you have been using company property for personal purposes, for which the company has been paying and perhaps that you have been engaged in a sideline business on company time, using your employer’s resources, in violation of your duty of loyalty to your employer.

Two lessons can be learned from this situation. First, if you have a “day job” and are doing things on the side (whether a sideline business, involvement in charities and other nonprofit activities, or just personal stuff), you must, must, must have a separate computer, laptop or PDA for your non-business stuff. Mixing business and personal technology is always a bad idea. Even if you are self-employed, the IRS allows you to deduct only computers, laptops and PDAs that are used solely and exclusively for business purposes. If your kids are using your home office computer to play video games or update their Facebook pages, you will have to keep a logbook documenting how much time the computer is being used for “real” business purposes. Can anybody here say “audit?”

Second, the most important law of data management is “backup, backup, backup, as frequently as possible.” Important data should never, ever be stored on only one computer, laptop or PDA. No matter who owns it.