Many employers provide their staff with electronic devices with which to perform duties.
From cellular telephones to laptop computers, these are now tools of the trade for many occupations.
It is becoming commonplace that devices provided to employees are used for a mix of work and personal purposes.
Employees make personal calls, send personal emails, download Internet content, and save personal files on those devices.
Numerous sticky questions arise from this mixed use. One is the degree to which the employee has a reasonable expectation of privacy over his or her personal content.
An Ontario court ruled last year that employees do have a right to privacy in relation to their personal content stored on an employer-provided device.
Cole was an Ontario high school teacher who was charged criminally with possession of child pornography and unauthorized use of a computer. He had been provided with a laptop by his school for his use in teaching communication technology and in supervising a laptop program for students.
He accessed a student’s email account, found nude photographs of another student, and copied them onto his laptop’s hard drive. A school technician later searched the laptop, found the explicit images and advised the school’s principal.
The school then required Cole to turn over the laptop, copied the objectionable content onto a disc, and analyzed his online searching history.
The laptop and discs were handed over to police.
Reviewing this scenario, the Ontario Court of Appeal found that the “conventions and customary use by teachers” of the school computers were consistent with the existence of a reasonable expectation of privacy.
Although it was a work computer owned by the school board and issued for employment purposes, the school gave the teachers possession of the laptops, explicit permission to use them for personal use and to take them home, and allowed them to use password protection. Critically, there was no clear and unambiguous policy giving the employer the right to monitor, search, or police the teachers’ use of the computers.
The court found that the teacher’s right to privacy was modified, but not displaced, by the fact that a technician could and would access the teachers’ laptops as part of his role in maintaining the school’s network.
Cole’s case recently made its way to the Supreme Court of Canada, which weighed in on the question of the extent to which employees have an expectation of privacy over personal data stored on workplace computers.
In introductory comments, the court stated: “Computers that are reasonably used for personal purposes—whether found in the workplace or the home—contain information that is meaningful, intimate, and touching on the user’s biographical core.
“Vis-à-vis the state, everyone in Canada is constitutionally entitled to expect privacy in personal information of this kind. While workplace policies and practices may diminish an individual’s expectation of privacy in a work computer, these sorts of operational realities do not in themselves remove the expectation entirely…”
In its detailed analysis of the situation, the court stated, “The context in which personal information is placed on an employer-owned computer is nonetheless significant. The policies, practices, and customs of the workplace are relevant to the extent that they concern the use of computers by employees. These ‘operational realities’ may diminish the expectation of privacy that reasonable employees might otherwise have in their personal information. Even as modified by practice, however, written policies are not determinative of a person’s reasonable expectation of privacy.”
According to the court, “Whatever the (employer’s) policies state, one must consider the totality of the circumstances in order to determine whether privacy is a reasonable expectation in the particular situation.”
In effect, what the court was saying was that a reasonable expectation of privacy applies to personal information on a workplace computer but that this expectation can be reduced (though perhaps not eliminated) by contrary workplace policies and practices.
Although Cole’s case was decided in the criminal law context, the comments by the Court of Appeal will surely resonate in civil cases involving the workplace relationship. Several lessons can be derived from the Cole decision.
First, if employers provide their staff with computers in part for personal usage, they should expect that content of a personal nature will find its way onto those devices. Second, if the employer wishes to restrict personal usage, it had better have a clear policy to that effect and it must take steps to enforce compliance with that policy. Third, in order to enforce compliance the employer should be periodically searching those computers to ensure personal content has not made its way on board.
Whether most employers are prepared to take these steps remains to be seen. In all likelihood, many will simply accept the fact that personal content on workplace devices is a sign of the times we live and work in.
Robert Smithson is a labour and employment lawyer, and operates Smithson Employment Law in Kelowna.