Millions of Canadians go to work each day, turn on their workplace
computers, and wonder whether they have also shut off their privacy.
Many employers seek to remove any reasonable expectation of privacy
by telling employees that they should not expect any privacy when
using workplace computers during company time.
Earlier this month, the Supreme Court of Canada grappled
with the question of workplace privacy and arrived a somewhat
different conclusion. My weekly technology law column (Toronto
Star version, homepage
version) notes it ruled that the workplace environment may
diminish an employee's reasonable expectation of privacy, but it
does not remove the expectation altogether.
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Appeared
in the Toronto Star on October 28, 2012 as Supreme Court Confirms
Privacy Rights Survive in the Workplace
Millions of Canadians go to work each day, turn on their workplace
computers, and wonder whether they have also shut off their privacy.
Many employers seek to remove any reasonable expectation of privacy
by telling employees that they should not expect any privacy when
using workplace computers during company time.
Earlier this month, the Supreme Court of Canada grappled with the
question of workplace privacy and arrived a somewhat different
conclusion. It ruled that the workplace environment may diminish an
employee's reasonable expectation of privacy, but it does not remove
the expectation altogether.
The case involved a criminal action against a high school teacher,
who was provided with school-issued laptop computer that could be
used for incidental personal purposes. A computer technician at the
school discovered nude photographs of a female student while
performing routine maintenance on the machine. The school copied the
images and turned over the computer and the images to police, who
later charged the man with possession of child pornography and
unauthorized use of a computer.
The legal issue in the case turned on whether the police conducted a
warrantless search of the computer in violation of the Canadian
Charter of Rights and Freedoms, which guards against unreasonable
search and seizure. To answer that question, the Court
assessed whether the employee had a reasonable expectation of
privacy.
The Court's analysis started by reaffirming that Canadians
reasonably expect privacy in the information found on their personal
computers. Provided the use is permitted or reasonably expected, the
same is true for workplace computers since both personal and
workplace computers frequently "contain information that is
meaningful, intimate, and touching on the user's biographical core."
But what if the employer has a workplace policy or established
practice that warns against personal use? The Court acknowledged
that such policies create a "diminished" expectation of privacy, but
argued that they do not completely remove the expectation as the
"nature of the information at stake exposes the likes, interests,
thoughts, activities, ideas, and searches for information of the
individual user." In fact, the court noted "whatever the
policies state, one must consider thetotalityof the
circumstances in order to determine whether privacy is a reasonable
expectation in the particular situation."
The court also considered the fact that the laptop belonged to the
school (a 2010 Supreme Court computer privacy case involved a
personal computer owned by the individual). The Court found that the
ownership of the computer is a relevant consideration, but it too is
not determinative.
Reasonable expectation of privacy therefore depends upon the
"totality of the circumstances", which presented a difficult balance
in this case since there was a clear privacy interest in the
information on the laptop set against school policies and ownership
of the computer. Given these competing interests, the Court ruled
that the reduced privacy interest was not eliminated in its
entirety. It therefore ordered that the teacher face a new trial.
While this case involves criminal issues and the Charter analysis
will not apply to every workplace (the court even states that it
will "leave for another day the finer points of an employer's right
to monitor computers issued to employees"), the decision sends a
strong signal that Canadians do not forfeit all their privacy rights
simply by logging onto their workplace computers. The reasonable
expectation of privacy for Canadian workers may be diminished on the
job, but it is not extinguished.
Michael Geist holds the Canada Research Chair in Internet and
E-commerce Law at the University of Ottawa, Faculty of Law. He can
reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.
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