The Supreme Court of Canada's judgment in R.
v Cole underscores the importance of putting in place
policies governing the use of workplace computers, since
well-publicized policies will diminish – although not
entirely eliminate – an employee's reasonable expectation
of privacy where the information concerns the most intimate details
of an individual's "biographical core."
The case concerned a school board's right to monitor
materials on a teacher's school-issued laptop and the further
right to hand over to police pornographic materials discovered on
it, in the absence of a warrant. The court clearly distinguished
between the two issues.
It cautioned that privacy policies and the ownership of computer
equipment are not necessarily determinative of privacy rights; even
where the employer owns the network or hardware, employees have a
reasonable, but diminished, expectation of privacy in their
personal information residing on workplace computers.
Those expectations increase with the intimacy or closeness of
the information to the biographical core of the employee and the
employee's direct personal (as opposed to business) interest in
that information. On the other hand, expectations of privacy to
intimate personal information can be diminished by other
circumstances prevailing in the workplace, such as the disclosure
of privacy policies providing for monitoring employee
communications where monitoring is reasonable for protecting
legitimate business interests.
The court took care to emphasize that expectations of privacy
will depend on all the circumstances. It refrained, however, from
opining on whether those expectations increase where the employee
uses his or her own device (BYODs) for work purposes.
Under all the circumstances of the Cole case, the school had the
right to monitor and seize the pornographic material. These
circumstances included the policies and practices in place as well
as regular reminders of them to the staff. While the school had a
duty to advise the police of the material's existence, the
police had no right to seize or copy that information without a
search warrant, even though the equipment belonged to the school,
which clearly consented to the seizure.
Consequently, an employer's ability to hand over highly
personal (as opposed to business) information to law enforcement
authorities must be done pursuant to lawful authority, such as a
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