Employee right to privacy on work computers

publication date: May 7, 2011
 | 
author/source: Barry Kwasniewski, Carters Professional Corporation
When employees use work computers for personal use, where are the boundaries between what information can and cannot be protected by their reasonable expectation of privacy? Many charities and not-for-profits allBarry Kwasniewski photoow employees to use work computers for personal activities such as downloading, storing information, or browsing the Internet.

However, in a recent decision of the Ontario Court of Appeal (R. v. Cole [2011] O.J. No. 1213), the court discussed an employee's expectation of privacy for information stored on a work computer. The following summarizes this decision and discusses the privacy implications for employers and employees.

The case and its background

Richard Cole, a teacher employed by the Rainbow District School Board, was criminally charged with possession of child pornography after the school board's IT staff found nude photographs of a 16-year-old student on his school-owned laptop computer. In his defence, Mr. Cole applied to exclude evidence based on an alleged breach of his right to be protected from unreasonable search and seizure, pursuant to section 8 of the Canadian Charter of Rights and Freedoms.

The school had provided him with a laptop for use in teaching communication technology and supervising a laptop program for students. At some point during his employment, he accessed a student's email account and copied nude photographs of one of the students onto the hard drive of that laptop. One of the computer technicians observed an unusual amount of activity between the teacher's laptop and the school's server, which sparked a search of the contents of the teacher's hard drive. In this search, the computer technician came across the nude photographs and reported the images to the principal of the school.

That information was then provided to the police, who conducted a warrantless search of the laptop and a disk containing the teacher's temporary Internet files. The teacher was eventually charged with possession of child pornography and unauthorized use of a computer. In the Ontario Court of Justice, the evidence was excluded, but on appeal to the Superior Court of Justice, the trial judge's decision was overturned and sent back for retrial. The teacher appealed this decision to the Ontario Court of Appeal, which allowed the appeal in part, and sent the matter back for trial.

The Ontario Court of Appeal decision raised several issues, but the following analysis focuses on whether the teacher had a reasonable expectation of privacy for the contents of a work computer on which he was entitled to store personal information.

Privacy, safety for both teacher and students

Ontario Court of Appeal Justice Karakatsanis discussed whether or not the teacher had a reasonable expectation of privacy in the contents of the laptop.  The reasoning of the judge involved an analysis of the factors identified in the leading Supreme Court of Canada decision in R. v. Edwards ([1996] 1 S.C.R. 128.). Applying this test, the Ontario Court of Appeal concluded that the teacher had a reasonable expectation of privacy in the contents of the laptop because:
  • While the teacher did not own the laptop, the teachers at the school were granted exclusive possession of the laptops;
  • The accused was given access to the computer on weekends and during vacations for personal use;
  • Access to the computer was protected by a password;
  • It was the norm for other teachers on the board to store sensitive personal information on their work laptops as well; and  
  • The policy provisions dealing with the monitoring or search of teacher laptops were found to be vague.
While the court held that the teacher had a reasonable expectation of privacy, the actions of the board in copying data and searching the laptop to support an investigation into serious alleged misconduct did not violate the teacher's rights. The court found that the school board had an ongoing obligation to take steps to ensure a safe and secure learning environment for its students and to protect the students' privacy rights.

These actions were also implicitly authorized by the Education Act, as part of the principal's duty to ensure a safe school environment. While the principal and school board's actions were deemed appropriate by the Court, the warrantless seizure of the laptop by the police was found to constitute a violation of section 8 of the Charter

Conclusion

Employers have the right to govern the terms of the use of work computers by their employees. With the number of employees that now require computers as part of their daily activities in the workplace, the conflicts that could potentially arise will undoubtedly continue.

While decided in the criminal law context, R. v. Cole illustrates the importance of having a policy relating to personal use of work computers. Such a policy will determine the extent to which an employee has any expectations of privacy of materials stored on work computers. With all policies, it is important that they be clearly communicated to employees to ensure adherence and provide a basis for discipline in the event of a breach. The law changes over time, and may differ according to the jurisdiction where you operate. Therefore, it is advisable to have any new policies reviewed by a lawyer before you implement them. For a more detailed analysis, please see Charity Law Bulletin No. 250 at www.charitylaw.ca.

Barry W. Kwasniewski practices employment and risk management law with Carters Ottawa office and would like to thank Kate Robertson, Student-At-Law, for her assistance in the preparation of this Bulletin. Contact Barry at 1-866-388-9596 or by email

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