Canada: Workplace Policies Can Diminish An Employee’s Expectation Of Privacy In Personal Information On Work Computers

Employers monitor employee use of work-issued computers for a variety of reasons: protecting confidential information, preventing improper use of equipment and software, investigating complaints of discrimination and/or harassment, and establishing just cause. Employers have typically relied on ownership of property and workplace computer policies to defend against employee claims of privacy rights. In a recent decision, the Supreme Court of Canada considered an employee's reasonable expectation of privacy in light of not only ownership and workplace policies, but also in the context of permitted or condoned personal use of work computers.

In R. v. Cole, the Supreme Court of Canada extended the principle that Canadians may reasonably expect privacy in the information contained on their personal computers to work computers, if personal use is permitted or reasonably expected.¹ Although the Court said it would "leave for another day the finer points of an employer's right to monitor computers issued to employees"², the decision is clearly significant to workplaces across Canada.

In respect of personal information stored on work-issued computers, the Court said that ownership of property and workplace policies can only "diminish an individual's expectation of privacy in a work computer."³ These factors do not, in themselves, remove the expectation entirely, and are not determinative. The Court considered the context in which personal information is placed on an employer-owned computer to be significant. The "operational realities" of a workplace, such as policies, practices and customs, may diminish an employee's expectation of privacy in personal information.⁴

Background to decision

The respondent, Cole, was issued a laptop computer by his employer, a school board, and was permitted to use it for work-related purposes and incidental personal purposes. Cole's personal use included Internet browsing, and storing personal information. The employer's information technology policy stipulated that e-mails remained private, but could be accessed by school administrators under certain conditions. The policy stated that "all data and messages" on the employer's equipment were considered to be the employer's property.⁵

A school board technician was performing maintenance activities by remote access when he discovered a hidden folder of files on Cole's laptop. The folder contained explicit photographs of a female student at the school, which Cole had obtained by accessing a male student's networked laptop. The technician informed the school principal. The principal directed the technician to make copies of the photographs and Internet browsing history onto a CD, which were provided to police along with Cole's laptop.

The police conducted a search without obtaining a warrant, and subsequently charged Cole with possession of child pornography and unauthorized use of a computer. Whether to exclude the computer evidence pursuant to the Charter in the context of Cole's criminal trial became the primary issue. Ultimately, the Court decided the police search violated s. 8 of the Charter, but should not be excluded as evidence. A new trial was ordered.

The school board's decision to search Cole's computer and make copies of the information was found by the Court of Appeal and the Supreme Court to be authorized by law and reasonable. The school board was seen to have acquired "lawful possession of the laptop for its own administrative purposes"⁶ and in accordance with its statutory obligations to maintain a safe school environment. The school board's decision to contact police was not criticized.

Supreme Court of Canada comments on nature of personal information stored on workplace computers

Personal information stored on computers can be "meaningful, intimate, and touches on the user's biographical core."⁷ For example, personal information can contain details of financial, medical and personal situations. Citing its earlier decision on privacy in home computers, the Supreme Court of Canada specifically noted that 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."⁸ In the workplace context, the Court found that personal information stored on work computers where personal use is permitted "exposes the likes, interests, thoughts, activities, ideas, and searches for information" of an individual.⁹

Workplace policies and practices can diminish an employee's expectation of privacy

Employers have an obvious need to monitor employee use of workplace computers and protect the integrity of technology and information. An employee's expectation of privacy identified by the Supreme Court of Canada is specific to an employee's personal information stored on work computers, and should be viewed in that context. An employer who uses personal information as the basis for discipline or dismissal may be challenged on the grounds that an employee had a reasonable expectation of privacy. However, such expectation of privacy can be diminished by the employer's policies, practices and customs.

It is therefore important for employers to limit the personal information stored on work computers, and to have clear policies, practices and customs relative to personal use and storage of personal information on work issued computers. Employers should assess the "operational realities" of the workplace to understand whether permitted or condoned personal use could interfere with an employer's legitimate need to search its devices. For example, the Court's finding that Internet search histories are personal information likely mean that most workplace computers with Internet access contain some degree of personal information. The extent to which an employee has a reasonable expectation that an Internet search history will remain private, and not be used as the basis for discipline will depend on an employer's "operational realities", including policies on Internet use, actual practice and customs in the workplace.

The Court did not address an employee's expectation of privacy in other computer devices such as smart phones and whether personal information in the form of text messages, photographs and personal e-mail accounts attract any privacy rights. Given the ease with which personal and private information can be mingled on these devices, the issue of an employee's reasonable expectation of privacy is likely to become a more complex issue and one yet to be fully considered by the courts.

Footnotes

1 R. v. Cole, 2012 SCC 53 at 1, 32 and 33.

2 Ibid. at para. 60

3 Ibid. at paras. 3, 51, 52 and 53

4 Ibid. at para. 52.

5 Ibid. at paras. 16, 50 and 55

6 Ibid. at para. 67

7 Ibid. at paras. 2 and 46

8 Ibid. at para. 47, citing R. v. Morelli, 2010 SCC 8

9 Ibid. at para. 3.

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