The ability to monitor, surreptitiously or openly, what an employee is viewing and doing on an employer's computer is of growing importance to most employers for a myriad of reasons including preventing disclosure of confidential information, preventing criminal conduct and reducing inefficiency. For the most part, the courts, tribunals, and privacy commissioners have come down on the side of employers by approving a qualified right to monitor employee computer use. However, in a decision released last week1, the Ontario Court of Appeal has reminded employers that the right to monitor employee computer use is not unlimited, and it must be handled appropriately in order to preserve the integrity of the evidence and its admissibility in any subsequent proceedings.
A high school teacher was provided with a laptop by the high school at which he worked. It was school policy that teachers were permitted to use the computers for personal use and store personal information on school-issued laptops and computers. The policies also expressly prohibited the use or storage of inappropriate content, including sexually explicit content and explicitly allowed access by the school to private emails.
The teacher was assigned to monitor student use of the school's computers, and in so doing, he accessed a student's e-mail account which contained nude photographs of another student. The teacher downloaded the photos to the school's laptop and saved it in a hidden file. An IT professional working for the school board noticed unusually high activity involving the teacher's laptop and while investigating, found the photos and reported his discovery to the principal of the school. The principal required the teacher to provide the laptop. The teacher complied but requested that his private data, including pictures of his wife, not be examined. Upon further investigation, it was found that the teacher had visited numerous pornographic sites using the school's computer. Copies of the pictures, a record of the websites accessed and the computer itself were provided to police. The teacher was charged with possession of child pornography and was arrested.
The Privacy Issues Examined:
At his criminal trial the teacher objected to the admissibility of the evidence provided to the police and later found by them on the ground that both the school board and the police violated his right to be free from unlawful search and seizure. This is the issue that was decided by the Court of Appeal.
The Findings of the Court of Appeal on Employee Privacy Rights:
Somewhat surprisingly, the Court of Appeal held that an employee does indeed have a right to privacy even when using an employer's computer. The facts on which the Court of Appeal relied in finding that the teacher had an objectively reasonable expectation of privacy in the use of the school laptop were:
- Teachers were provided with exclusive possession of the laptops, and permitted to use passwords to limit access.
- Teachers were permitted to use the laptops for personal use and take the laptops home on evenings, weekends and vacations.
- Although the written policies expressly prohibited the storage of sexually explicit content on the computers, they failed to warn employees that the computers were subject to search.
- Although the school policies expressly stated that there was no expectation of privacy with respect to e-mail, they failed to expressly warn that there was no expectation of privacy with respect to other data stored and other use of the computer.
The Court of Appeal held that an employee's expectation of privacy was limited by the right to ensure the integrity of its computer system. Because it was in this context that the technician had found offensive material, rather than as a result of a "free range search" of the laptop, the teacher's expectation of privacy was not violated by the board's search.
The Court of Appeal acknowledged that the subsequent investigations of the principal and school board in acquiring the laptop, and performing further searches were appropriate pursuant to their obligations to protect their students.2
In managing computer use, employers should take from this, and previous decisions, the following:
- Written policies governing the use of computers (or any company equipment) are a must.
- Policies should expressly and very clearly identify:
- what types of uses are permitted and conversely, prohibited;
- that there is no reasonable expectation of privacy with respect to specific uses such as e-mail, internet searches, downloading, etc.
- that all computer data and use is subject to random monitoring by the employer, including any personal information stored on the computer; and
- the consequences for failing to abide by the policy.
- In the event that inappropriate use of a computer is discovered during legitimate network monitoring, subsequent investigations, including a more thorough examination of the computer will likely be held to be reasonable, particularly where the inappropriate use triggers a statutory obligation, such as the reporting requirements under the Child Pornography Reporting Act.
- If there is reason to believe that an employee is misusing the company computer, courts, tribunals, and the privacy commissions will expect the employer to confront the employee, present the concern or evidence of inappropriate use, and give the employee an opportunity to explain before any surreptitious monitoring is undertaken. This obligation is tempered by evidence of criminal misconduct, such as evidence of engaging in child pornography.
- Carefully consider whether employees should be permitted to:
- use passwords that are unknown to management;
- use company computers for personal use; and
- regularly take company laptops home on evenings and weekends.
1.R. v. Cole, 2011 ONCA 218.
2.The Court of Appeal held that the search of the laptop by the police was unlawful because the police did not first obtain a search warrant. The laptop, the mirror image of its hard drive obtained by the police, and the disc were, accordingly, excluded from evidence.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.