Smithson: Whose computer is it, anyway?

In today’s workplace, many employers provide their staff with electronic devices with which to perform duties.

In today’s workplace, 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.

Most employers would, I believe, assert that the technology they provide to their employees is the company’s property and is to be used strictly for work-related purposes.

The reality of their employee’s use of the employer’s technology may be entirely different.

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 relates to the degree to which the employee has a reasonable expectation of privacy over his or her personal content.

An Ontario court has ruled that employees do have a right to privacy in relation to their personal content stored on an employer-provided device.

This decision is sure to spark an ongoing debate in the courts about the nature and extent of this privacy right.

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.

The issue arising from his case, which recently reached the Ontario Court of Appeal, was whether Cole had a reasonable expectation of privacy in the contents of a work computer.

The court noted that there is little authority in Canada on the issue of whether an employee has a reasonable expectation of privacy in a work computer. It found, here, 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, permission to take them home during evenings and weekends and summer vacation, and allowed them to use passwords to exclude access by others.

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 teachers’ right to privacy was modified, but not displaced, by the fact that the school’s technician could and would access the laptops as part of his role in maintaining the school’s network.

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 is questionable.

Many will simply accept the fact that personal content on workplace devices is a sign of the times in which we live and work.

Robert Smithson is a labour and employment lawyer, and operates Smithson Employment Law in Kelowna. This subject matter is provided for general informational purposes only and is not intended as legal advice.



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