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Like Tom Brady's phone, yours likely isn't safe from employer scrutiny

For many weeks, the deflate-gate controversy lingered in the realm of the meaningless and minor: the amount of air pressure in footballs. This week, however, the topic became relevant to all of us.

The charge that Tom Brady destroyed his cell phone, and the New England Patriots quarterback's Facebook response to that charge on Wednesday, caused deflate-gate to veer into issues of workplace privacy. Brady's argument in defense of "my rights as a private citizen" goes to the heart of a problematic place in American society: whether your phone is really private.

The harsh truth: your personal phone is not always private.

If a company is involved in a legal case, personal phones and devices can be inspected as part of an investigation.

"Many, many people in business don't seem to realize their phone they take pictures with on vacation – that can be reviewed in the event of litigation," said Michael Overly, a partner at Foley and Lardner in Los Angeles, who has testified before Congress on privacy issues.

And although many of us try to keep a "work" phone separate from a "personal" phone, the connection is tenuous.

"This thing that holds your entire life, you may be required to hand it over to a third party," Overly said. "It's very concerning."

Many companies are now allowing employees to use their own phones for work – "BYOD" or Bring Your Own Device – and what seems like a win-win for both sides is actually perilous for the employee.

"When you start to use these devices in a business context, you may be giving up your privacy," Overly said.

The situation involving Brady moved to a legal setting Wednesday, as Brady filed suit in Minnesota, but to this point it's been under the NFL umbrella. But fans and non-fans across the country are now debating if Brady should be required to give up his phone and what constitutes workplace privacy. Investigator Ted Wells has said he was interested only in the relevant text exchanges, and not in any personal information, yet it's often unclear in a text exchange what is pertinent and what is not. That is a problem weighing on Brady, on the Patriots' suspended equipment managers and on everyone who sends texts and instant messages.

"Tom Brady had 10,000 text messages in his phone," Overly said. "That's a huge volume of messages. Could he have potentially said something construed out of context? Absolutely."

Texts Brady may have sent to Bill Belichick or Robert Kraft may be open to interpretation as well. What if he texted something about a referee? Or about commissioner Roger Goodell? Is that relevant to the investigation?

Jonathan Martin (AP)
Jonathan Martin (AP)

David Cornwell, who represented Jonathan Martin during Wells' bullying investigation, told Yahoo News there was a particular way of accessing relevant text messages in that case.

"Our cell phones were subjected to the exact same examination that Ted Wells wanted to do with Brady's," Cornwell said. "What you do is you use software, and you connect the software to the phone, and you search the hard drive for text messages that you can find even if they've been deleted. And you do it using search terms so that text messages that are not relevant are not produced by the software. So this was not an invasive practice, nor is it unprecedented."

Many would argue that it is invasive, and that it sets precedent. Brady suggested as much in his Facebook post. This isn't just a football question, or even a sports question. It gets into workers rights, and lawyers all over the nation are struggling with what is relevant to litigation. What if a worker has sent no incriminating texts, but GPS places him or her at a doctor's office? Or at the home of a married supervisor?

"When you think about the kind of information on a cell phone, it would cause almost anyone to shiver a bit," Overly said. "Shouldn't we have a good way of protecting that?"

So even though Brady is extremely wealthy, and lives a life hardly any of us can relate to, his Facebook message on Wednesday has appeal for a huge majority of football fans. He is a public figure in the truest sense, yet even famous athletes have been victims of hacks and other forms of invasion. Brady even mentioned his role as a member of a union, placing him in opposition to the NFL, which was cast as an intrusive employer.

This leads to a perception problem for Goodell and the league – one which has lingered for a while. Goodell has harped on whether or not players cooperate with investigations, and how they represent the image of the league as a whole. A lot of that stems from the personal conduct policy that followed a rash of player arrests in the middle part of the last decade. Most notably, Goodell suspended Adam Jones for a full season in part because he "damaged the reputation of players around the league." Goodell got strong public support from Patriots owner Robert Kraft.

"I hope this sends a message to people in our league for how to conduct themselves," Kraft said. "We have to be careful. People in America can't relate to overindulged athletes not acting responsibly."

That message has a more nuanced meaning now, as one could argue that although Brady caused no trouble with the law, he is the overindulged athlete not acting responsibly. It is now Brady being accused of a lack of cooperation, and a lack of transparency when it comes to league investigations.

One could also argue, however, that people in America can relate to an employee who is asked for the contents of his phone. That, surprisingly, can happen to any of us.

The public perception of Brady and Goodell rests not as much on whether the footballs were illegally deflated – we'll likely never know that – but how fans see them in this prism of workplace privacy. The questions there aren't so much, "Who did what to the footballs?" but rather, "What was on Tom Brady's phone, and who has the right to know?"