Do employees have a reasonable expectation of privacy in employer-provided technology?
In an update to my earlier post Employees’ Rights to Privacy with Work Equipment, on October 19, 2012, the Supreme Court of Canada has released its decision in the case of R. v. Cole, 2012 SCC 53.
The case answers the question of whether an employee can have a reasonable expectation of privacy in employer-provided technology.
Employees' Right to Privacy
Writing for the majority, the Honourable Justice Fish opened the Court’s reasons with the following:
[1] The Court left no doubt in R. v. Morelli, 2010 SCC 8 that Canadians may reasonably expect privacy in the information contained on their own personal computers. In my view, the same applies to information on work computers, at least where personal use is permitted or reasonably expected.
[2] 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.
[3] 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: The nature of the information at stake exposes the likes, interests, thoughts, activities, ideas, and searches for information of the individual user.
On the issue of whether Mr. Cole had a reasonable expectation of privacy in his employer-provided laptop Justice Fish wrote that:
[47] Computers that are used for personal purposes, regardless of where they are found or to whom they belong, “contain the details of our financial, medical, and personal situations” (Morelli, at para. 105). This is particularly the case where, as here, the computer is used to browse the Web. Internet-connected devices “reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet” (ibid.).
[48] This sort of private information falls at the very heart of the “biographical core” protected by s. 8 of the Charter.
[49] Like Morelli, this case involves highly revealing and meaningful information about an individual’s personal life — a factor strongly indicative of a reasonable expectation of privacy. Unlike in Morelli, however, this case involves a work-issued laptop and not a personal computer found in a private residence.
…
[51] While the ownership of property is a relevant consideration, it is not determinative (R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 22). Nor should it carry undue weight within the contextual analysis.
On the issue of state intrusion upon his private internet history Justice Fish held that:
[59] As Mr. Cole had a reasonable expectation of privacy in his Internet browsing history and the informational content of his work-issued laptop, any non-consensual examination by the state was a “search”; and any taking, a “seizure”.
Decision
In the end, Justice Fish, on behalf of the Court, held that although there had been a clear breach of Mr. Cole’s section 8 Charter rights, given the nature of the material found on the laptop (child pornography) it was inappropriate to exclude that evidence from the court’s consideration as may be directed by section 24(2) of the Charter.
Dissent
Justice Abella, writing alone in dissent, agreed with Justice Fish that a violation had occurred, but agreed with the Court of Appeal for Ontario that the evidence must also be excluded from the court pursuant to section 24(2).
Perhaps echoing what I had written in an earlier post, Rights to Privacy and Remedies for Breach, Justice Abella wrote that:
[109] Workplace computers are increasingly given to employees for their exclusive use, and employees are allowed — and often expected — to use them away from the workplace for both work-related and personal use. And as more data is stored in the cloud and accessed on both workplace and personal computers, the ownership of the device or the data, far from being determinative of the reasonable expectation of privacy, becomes an increasingly unhelpful marker. In deciding whether to exclude evidence illegally seized from workplace computers, this blurring of the line between personal and workplace usage should inform the analysis.
In resolving that the evidence should be excluded pursuant to section 24(2) of the Charter Justice Abella held that:
[126] The substantial amount of private information which was seized by the police from Mr. Cole’s computer meant that it was a highly intrusive search. In other words, regardless of whether there is a diminished expectation of privacy in a workplace computer, the extent of the seizure in a given case should be relevant under s. 24(2).
Commentary
I credit Justice Fish for his honesty. The Court is at least clear as to why, notwithstanding Mr. Cole’s privacy rights and the clear finding of a breach of his Charter-protected rights the evidence can still be considered: because it’s child pornography!
On the criminal law issues I really take no position. Criminal law is not my usual subject of review and a good part of the decision is beyond me.
On the findings of the court with respect to privacy interests, however, the case will have far reaching implications for employers; an argument to which credibility is given by the fact that the Canadian Association of Counsel to Employers intervened on this appeal.
It would appear both clear and settled that simply because an employer provides an employee with technology, that fact does not entitle the employer to arbitrarily snoop around within that technology, which is the argument I made in Rights to Privacy and Remedies for Breach.
Takeaways for those with Labour Pains
To my mind the takeaway here is for employers. If you are going to allow employees to have access to technology, and use it for personal use (which must always be inferred even when a policy exists, I would suggest), then that employee has a right to a reasonable expectation of privacy within that equipment. On this point the entire Court was in agreement.
If you are an employer looking for assistance with preparing your workplace equipment terms of use policy, the professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization.
Contact Me
To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.
--As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
Sean Bawden, publisher of Labour Pains, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He has also been a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.
I have been asked whether para. 60 of Justice Fish's decision:
ReplyDeleteMr. Cole does not challenge the initial inspection of the laptop by the school technician in the context of routine maintenance activities. He concedes, moreover, that the technician did not breach his s. 8 rights. In this light, I leave for another day the finer points of an employer’s right to monitor computers issued to employees.
challenges my position that the decision makes plain that employees have a right to privacy in employer-provided equipment.
My answer is no, as I believe that Justice Fish, when he speaks at para. 60, was only speaking with respect to Section 8 rights. I would submit that read on its face, the deision affirms the position that employees have rights to be free unnecessary intrusion upon seclusion.