The Supreme Court has found that employees may have a reasonable expectation of privacy in the information contained on their work computers, at least where personal use is permitted or reasonably expected by the employer. The issue in R. v. Cole arose when a laptop used by a high school teacher, but provided by his employer, was discovered to contain child pornography and was provided to the police.
While the teacher, Mr. Cole, was found to have a reasonable expectation of privacy, the Court held that his employer's actions did not breach his Charter rights. However, the search and seizure by the police, who had not obtained a warrant, did breach his privacy rights under the Charter. In any event, the evidence gathered by the police was still considered admissible as it did not bring the administration of justice into disrepute.
It is important to recognize that this decision was rendered in a criminal law and Charter context, and not in a labour law context, and that not every employer is directly subject to the Charter. Specifically, the Court stated that it would "leave for another day the finer points of an employer's right to monitor computers issued to employees". However, this decision may still provide some useful points for employers to consider.
Facts – A High School Teacher Caught at Work with Child Pornography
The school board's policy: (i) allowed teachers to use their laptop for incidental personal use; (ii) specifically provided that teacher's e-mails were private, subject to certain conditions; (iii) stated that all data and messages generated on or handled by board equipment were the property of the school board; and (iv) warned users not to expect privacy in their files.
A technician had access to all school board laptops, and in the course of doing normal maintenance work on the laptop used by Mr. Cole, the technician found a folder with nude and partially nude photographs of an underage female student. The technician reported that finding to the school's principal and copied the photographs on a CD (First CD). The principal seized the laptop. Subsequently, school board technicians made another CD with a copy of temporary Internet files located on the laptop (Second CD).
The school board then contacted the police, and the latter seized the First CD, the Second CD and the laptop without a warrant. The content of the laptop resulting from the police's warrantless search (Laptop Content) was submitted as evidence to the trial judge along with the First and Second CDs.
The trial judge excluded the First CD, Second CD and Laptop Content from the evidence as, in his view, they were improperly seized pursuant to section 8 of the Charter. The Court of Appeal for Ontario partly set aside the trial judge's decision. It excluded the Second CD and the Laptop Content from the evidence, but not the First CD.
At the Supreme Court
1. Did Mr. Cole have a reasonable expectation of privacy in his work-issued computer considering the "totality of the circumstances"?
The Court applies the "totality of circumstances" test and found that Mr. Cole did have a reasonable expectation of privacy that was protected by the Charter.
The "totality of circumstances" test includes four steps: (a) the examination of the subject matter of the alleged search; (b) the determination as to whether the accused had a direct interest in the subject matter; (c) the inquiry into whether the accused had a subjective expectation of privacy; and (d) the assessment as to whether this subjective expectation of privacy was objectively reasonable in light of all circumstances.
(a) Subject Matter of the Search:
In this case, the subject matter was the data, or informational content of the First CD, Second CD and Laptop Content, not the devices themselves.
(b) Direct Interest in the Subject Matter, and (c) Subjective Expectation of Privacy:
The Court found that Mr. Cole had a direct interest and subjective expectation of privacy in the information included in his work laptop because he used it to surf the Internet and to store personal information on the hard drive.
(d) Objective Expectation of Privacy:
To ascertain if this expectation was objectively reasonable, the Court considered the following circumstances to be relevant:
- The closer the subject matter lies to the "biographical core" of personal information, the more likely that there will be a reasonable expectation of privacy.
Computers that are used for personal purposes, and especially those connected to the Internet, will reveal private information at the heart of the "biographical core" of personal information. This has the effect of greatly reinforcing the expectation of privacy.
- Ownership of property is a relevant factor, but is not determinative.
The fact that the employer owned the laptop diminished Mr. Cole's expectation of privacy in comparison to a personal computer, but did not eliminate it.
- Written policies of employers are relevant amongst the "totality of circumstances", but are not determinative of a person's reasonable expectation of privacy.
The fact that the policy warned teachers that they should not expect privacy in their files, again, diminished Mr. Cole's expectation of privacy, without eliminating it.
On the other hand, other policy provisions allowed incidental personal use and indicated that the teachers' e-mails were private, which reinforced Mr. Cole's expectation of privacy. The Court emphasized the fact that Canadians may reasonably expect privacy in the information contained on work-issued computers where personal use is permitted or reasonably expected.
- Other factors that have to be weighed include practices, customs or "operational realities" of the workplace, to the extent that they concern the use of computers by employees.
To do so, the Court assessed how the employees generally used their work computers, if the employer's policies were actually applied and enforced, and if they were respected by employees.
For example, the fact that Mr. Cole did not have exclusive control over his personal information since he knew that a technician could perform normal maintenance of his computer, reduced his expectation of privacy.
The Court concluded that even though "the "totality of circumstances" consist of many strands, and they pull in competing directions in this case (...) [o]n balance, they support the objective reasonableness of Mr. Cole's subjective expectation of privacy". The Court gave importance to the fact that Mr. Cole's personal use of his work-issued laptop generated meaningful and intimate information, organically connected to his biographical core. Mr. Cole's expectation is however diminished by ownership, policies and practices. The Court specified that Mr. Cole's reasonable expectation of privacy, even if it was diminished, was protected by section 8 of the Charter. Therefore, state intrusion was only permitted pursuant to the authority of a reasonable law.
2. Was the employer's conduct in breach of Mr. Cole's right to be free against unreasonable search and seizure enshrined in section 8 of Charter? (This question was not expressly listed as a question by the Court, but was discussed incidentally).
The Court found that the employer did not breach the Charter.
Even though Mr. Cole had a reasonable expectation of privacy, the school did nothing wrong. More specifically:
- The school technician was allowed to perform normal maintenance work and to share his findings with his employer. He was allowed to make the First CD and to provide it to his employer. What the technician did was not a "search" for the purposes of section 8 of the Charter.
- The principal's and school board's search and seizure were all reasonable and authorized by law since the school has a statutory duty to maintain a safe school environment. They were permitted to seize Mr. Cole's laptop and ask for the Second CD to be made. Section 8 of the Charter applied to the school officials, but it was not infringed.
- The school board was legally entitled to inform the police of its discovery.
3. Was the police search and seizure unreasonable and did it violate section 8 of the Charter?
The police did infringe the employee's right under section 8 of the Charter in that they did not obtain a warrant. The fact that the police received the laptop, owned by the school board, from the school board, and with the school board's consent, did not give the police a green light to perform a warrantless search and seizure.
4. Should the evidence be excluded pursuant to section 24(2) of the Charter? In other words, if this evidence was obtained unconstitutionally, would its admission bring justice into disrepute?
Even though the police violated Mr. Cole's right, it was not an "egregious" violation. The police would have had reasonable and probable grounds to obtain a warrant in the circumstances. Furthermore, the evidence is very reliable and its exclusion would impact the truth-seeking function of the criminal trial process. Therefore, the Court found that the evidence, i.e. the First CD, Second CD and Laptop Content should not be excluded pursuant to section 24(2) of the Charter as it did not bring the administration of justice into disrepute. A new trial was ordered.
Different policies, practices and operational realities may diminish an employee's expectation of privacy regarding the content of his work-issued computer, without entirely removing this expectation.
Even though the employer was found to have acted lawfully in this case, a different set of facts could lead to a different conclusion.
Provided that employees can reasonably expect privacy on their work-issued computers, employers should bear in mind that:
- This expectation could be extended to other electronic devices, such as smart phones.
- Allowing incidental personal use of work-issued computers reinforces the expectation of privacy.
- Privacy policies have to be clear and free of ambiguity.
- Policies should be known and understood by their employees. Methods of communicating and reminding employees of the policies are important.
- Policies have to be consistent with the actual use and practices permitted by the employer in the work place. A total prohibition of personal use is probably not practical or enforceable where the Internet is accessible. Policies have to be carefully drafted to manage personal use.
- Computer use should be monitored to the extent allowed and required to ensure that policies are adhered to. Any breaches should be promptly and consistently dealt with.
- In the event of a breach, consider all the circumstances, including the employer's legitimate concerns about its legal obligations, operations and reputation.
- Caution is required when accessing information revealing elements of the "biographical core" of employees, including their interests and propensities that may be implied in Internet browsing history.
Although this decision was rendered in the context of state interference with privacy rights, it will most probably influence employment privacy law, not only in the public, but also in the private sector.
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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.