Previously published in Law Times, 5 November, 2012.
In his classic novel 1984, George Orwell imagined a world where
Big Brother was always watching. Whether it be on the street or in
your own home, the government was being constantly vigilant in
monitoring the activities of all of its citizens. It was a
frightening and sober commentary on the potential reach of new
In many ways, Orwell's vision has become reality. The interconnectivity of the digital era not only allows each and every one of us access to the world's libraries but also to view satellite images of anywhere on Earth.
In this day of information overload and social media, is there any room remaining for privacy? The Supreme Court of Canada, in its recent decision in R. v. Cole, has reaffirmed that there is.
In Cole, the court considered whether there was a reasonable expectation of privacy for a computer found in the workplace. Richard Cole was a high school teacher who was responsible for policing the use by students of their own networked laptops. To this end, the school board supplied Cole with a laptop computer it owned.
One of the school technicians, while performing maintenance activities on Cole's computer, discovered a hidden folder containing nude and partially nude photographs of an underage female student. The school administration then had the technician make CDs containing the photographs as well as the temporary Internet files showing the sites Cole had accessed. The board gave the laptop and the two CDs to the police. The police reviewed the computer and CDs without a warrant and charged Cole with possession of child pornography and unauthorized use of a computer.
A motion was brought to exclude the computer evidence as being contrary to s. 8 of the Charter of Rights and Freedoms. Cole, unfortunately, did not challenge the initial inspection of the laptop computer by the school technician and conceded that the technician did not breach his s. 8 rights.
As a result, the court did not consider the question of an employer's right to monitor computers issued to employees. Nonetheless, the court noted that school principals had a statutory duty to maintain a safe school environment and, by necessary implication, a reasonable power to seize and search a school board-issued computer if they had reasonable grounds to believe the hard drive contained compromising photographs of a student. The issue before the court was therefore restricted to whether the police could use the computer and the information on it, obtained without a warrant, in the prosecution of the criminal charges.
In considering whether Cole had a reasonable expectation of
privacy on his school-owned computer, the court considered the
policies and procedures of his employer. The board had a policy and
procedures manual that allowed for incidental personal use of the
computer and stipulated that teachers' e-mail would remain
private, although this was subject to access by school
administrators under certain conditions. The teacher could also
protect the computer with a password.
However, the policy stated that all data and messages generated on or handled by board equipment are the board's property and not that of the user. The board further had an acceptable use policy that applied to teachers. That policy stated that administrators might monitor all work and e-mail, including materials saved on the hard drives.
The policy warned that users should not assume that files stored on network servers or hard drives of individual computers would be private.
Despite these warnings, policies, and procedures, the court held that Cole still retained a reasonable expectation to privacy. The court noted that the expectation of privacy was not as high as information contained on a personal home computer and that workplace policies and practices may diminish an individual's expectation of privacy on a work device. Nonetheless, although the expectation of privacy is lower, it still exists.
The court noted that the right to privacy is independent of ownership of either the computer hardware or the software. It was an informational privacy of the data or the content of the hard drive. The court defined informational privacy as being the "claim of individuals, groups or institutions to determine for themselves when, how, and to what extent information about them is communicated to others."
The court acknowledged that employers increasingly provide computers for employees' exclusive use and that staff can and often do use them away from the workplace. In this regard, it is common practice for employees to use the computers for both work-related and personal reasons. Furthermore, as people store more data in the cloud and access it from both workplace and personal computers, the ownership of the device or the data, far from being determinative of the reasonable expectation of privacy, becomes an increasingly unhelpful marker.
It becomes a factor to be considered in the diminishment of the expectation as to privacy but it does not eliminate it.
In analyzing the extent of the right to privacy on a work
computer, the court determined that it was a question of balance.
In favour of privacy were the parts of the policy and actual
practice that permitted Cole to use his work-issued laptop computer
for personal purposes.
Against the expectation of privacy were the portions of the policy and the technological reality of access by school technicians that deprived Cole of exclusive control over and access to any personal information he chose to save on the computer. On balance, the court concluded that Cole had a diminished but extant reasonable expectation of privacy.
The court also considered whether a third party, the school board, could validly consent to a warrantless search or seizure of a laptop issued to one of its employees. It specifically rejected the doctrine of third-party consent as it was inconsistent with its jurisprudence on first-party consent. As a result, the court concluded that Cole did have a reasonable expectation of privacy and, therefore, that a search warrant was necessary. As the police conducted the search and seizure without a warrant, it violated his s. 8 rights.
Cole, however, was not out of the woods. Noting his diminished expectation of privacy and that the information on the hard drive is "all highly reliable and probative physical evidence," the court allowed the admission of it under s. 24(2) of the Charter. The court held that the admission of the evidence, despite the violation of s. 8, would not bring the administration of justice into disrepute and ordered a new trial.
The impact of this decision will be difficult to assess. Permitting at least a diminished reasonable expectation of privacy on work or employer-owned computers should give employers pause. When considered in conjunction with the recent Court of Appeal case creating a tort of intrusion upon seclusion, this case may well give rise to new areas of potential exposure.
However, the competing interests of employers in preventing misuse of electronic data or employees' duties will have to be considered. But since the court specifically deferred the question of whether the actual act of searching or monitoring the computers by the employer contravened any privacy rights for another day, the final chapter on this issue remains unwritten. The courts, therefore, will continue to struggle with the boundaries of appropriate expectations of privacy.
Nonetheless, one thing is perfectly clear: the courts remain strongly opposed to the Orwellian future where privacy would be non-existent.
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.