Many factors played in the reversal, such as Stengart's sophistication of computers. While the employee handbook might state that an employee waives the expectation of privacy, this doesn't mean that the employee has a knowledge of how HTML files are created and whether or not a password will protect access to those files.

The Stengart v. Loving Care Agency case, though, has a big flaw for BYOD employees: The reversal toward employee privacy rights was anchored in the attorney-client privilege.

"It's not likely that the same quality of protection would be available for non-privilege communication under those facts," Cossrow says. "How broadly will Stengart be used? We're going to see different types of [BYOD] policies, and they're going to be tested in court over time."

The BYOD Policy