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Cole involved a teacher who had stored photographs of a
young nude female on a laptop computer owned by his employer and
issued to him. The photographs were discovered by the school's
information technologist (during a routine check, the technologist
had noticed a potentially dangerous hidden file that he believed
might destabilize the school's network and investigated this
further). The teacher subsequently surrendered the computer to the
school principal upon request. The school then copied the
photographs and an internet file onto a disc and provided the disc
to the police, along with the laptop. Cole was charged with
possession of child pornography. An issue arose as to whether the
evidence was admissible in the criminal trial and this turned, in
part, on whether Cole had a reasonable expectation of privacy in
these records, given that teachers were expressly allowed to use
the school's laptops for personal purposes.
The lower court found that Cole could indeed have some expectation
of privacy in the circumstances, although the school's
examination of his computer files was not itself found to be
unreasonable in the circumstances.
While the Cole case is primarily focused on whether the
police required a warrant to access and take custody of the
records, the Canadian Association of Counsel to Employers
intervened in the case, in order to make submissions regarding an
employer's rights in relation to the intended function of a
work computer and in maintaining and protecting the employer's
information system, and an employer's legitimate interest and
obligation to oversee its systems.
At the same time that the Cole decision is pending, the
Massachusetts Superior Court has issued a decision in Falmouth Firefighters Union v. Town of
Falmouth, finding that a Town employee (a firefighter) had
no legitimate expectation of privacy in e-mails he sent or received
on Google Gmail in circumstances where the Town purchased the
domain names used for its employees' e-mail accounts. Although
the Town of Falmouth did not save any e-mails on any computer,
server, or disc, it was the administrator of the Gmail accounts.
The Massachusetts Court accepted that the Gmail accounts were
widely used by Town employees for personal communications as well
as for work, but noted that the Town's email policy stated that
the Town maintained the ability to access any messages on or
transmitted over the email system and that "employees should
not assume that such messages are confidential or that access by
the employer will not occur." Accordingly, the Court found
that the firefighter had no basis to sue his employer under the
Massachusetts Privacy Act. The Supreme Court of British
Columbia has recognized in Pacific Northwest Herb Corp. v. Thompson
(1999) that the president of a company may have had a
reasonable expectation of privacy in relation to documents he
created on a company-owned computer for family or personal reasons,
but that he was not entitled to interim injunctive relief
restraining his former employer from retrieving or copying such
records pending the outcome of his wrongful dismissal suit against
the employer. The Court noted in this regard that the president was
"the author of his own problems." The Court took a
different view, however, regarding communications between the
president and his legal counsel which were stored on the
employer's computer. The employer was not entitled to access
these and the president had not waived privilege over such records,
despite having stored them on his employer's computer.
It will be interesting to see what the Supreme Court of Canada has
to say about an employer's rights in Cole.
In the meantime, the best approach for employers is to have a
very clear, written technology use policy, to document the
distribution of this policy to all employees and to use best
efforts to avoid accessing any employee records which appear on
their face to be entirely personal and/or covered by lawyer-client
privilege, other than records which appear to present a risk to
legitimate employer interests (such as the records involved in
Cole).
Employers who are dealing with an unusual situation involving
retrieval of employee email should seek specific legal counsel.
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.
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