Out-Law News 1 min. read

Competition raids could involve searches of 'private devices', Commission confirms


EU competition investigators that conduct raids on businesses could search employees' personal devices if they are used for work, the European Commission has confirmed.

In a recent revised explanatory note (4-page / 36KB PDF) on its powers of inspection under the EU's competition regime, the Commission said it could use keyword searches or "forensic IT tools" to scrutinise data on "private devices" as well as other hardware found on business premises. 

"The inspectors may search the IT-environment (e.g. servers, desktop computers, laptops, tablets and other mobile devices) and all storage media (e.g. CD-ROMs, DVDs, USB-keys, external hard disks, backup tapes, cloud services) of the undertaking," the Commission's note said. 

"This applies also to private devices and media that are used for professional reasons (Bring Your Own Device – BYOD) when they are found on the premises. For this purpose, the inspectors may not only use any built-in (keyword) search tool, but may also make use of their own dedicated software and/or hardware (Forensic IT tools). These Forensic IT tools allow the Commission to copy, search and recover data whilst respecting the integrity of the undertakings' systems and data," it said. 

Expert in criminal and regulatory risk Stacy Keen of Pinsent Masons, the law firm behind Out-Law.com, said that the Commission's policy reflects the BYOD trend in the workplace. 

"Whilst the Commission is quite explicit about the possibility of using its inspection powers to scrutinise private devices used for work purposes, businesses should be equally aware that other enforcement agencies and regulators have similar powers of inspection that may not be explained quite as openly," Keen said. "Keyword searches allow the Commission to look for data of potential interest to their investigation whilst minimising intrusion into privacy." 

Pinsent Masons has produced a checklist for businesses on what to do in the first hour of a competition dawn raid

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