A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP
Anyone who has watched Law and Order knows that the police, both here and in the U.S., do not need a warrant to rifle through someone's curbside recycling bin. This is because that person has abandoned their privacy interest in the contents of the bin. Does the same hold true for items in someone's computer desktop recycling bin?
Apparently not, according to the B.C. Court of Appeal in R. v. McNeice, 2013 BCCA 98. While putting something by the curb in the real world indicates an abandonment of a privacy interest, the B.C. Court of Appeal has held that doing the same thing in the virtual world is (emphasis added) "consistent with an intent to conceal, and thus to maintain a privacy interest".
The facts in R. v. McNeice are remarkably similar to those in R. v. Cole, 2012 SCC 53 in which the Supreme Court recently held that a schoolteacher maintained a privacy interest in the contents of his employer-issued laptop and that, as a result, police required a warrant to look at its contents when they were conducting a child pornography investigation.
In R. v. McNeice, the accused appealed from a trial decision in which he was found guilty of accessing child pornography. The police had received information from their German counterparts that led them to believe that child pornography was being accessed and downloaded from an IP address associated with McNeice's home. The police obtained a warrant and upon execution, found a computer that contained images of child pornography.
The police then asked the superintendent of the school district, McNeice's employer, for McNeice's school laptop. The laptop was owned by the school district and exclusively assigned to the appellant, although the school board's policy did not prohibit its use for personal purposes.
The superintendent sought legal advice and ultimately provided the laptop to the police. The police, using special software, were able to recover deleted child pornography from it and considered this evidence to be important given the possibility that the home computer could have been accessed by the accused's wife.
At trial, McNeice tried to have the evidence on the laptop excluded because it had been obtained without a warrant. The judge ruled in a voir dire that McNeice had abandoned any privacy interest in the laptop, and the "recycled" files, because he had deleted his browsing history and because his laptop did not have a password. As a result, the police search was lawful as it did not require a warrant.
Subsequent to the trial decision, the Supreme Court's decision in R. v. Cole was released. In light of R. v. Cole, McNeice appealed his conviction.
The Crown argued that there was no privacy interest in the files on the laptop. It submitted that the laptop was not a personal computer, but a work computer owned by the school district. There was no password on the computer and the deletion of the files, while not completely analogous to other situations of abandonment, demonstrated the appellant's desire to distance himself from the files.
The Crown also submitted that any expectation of privacy was not objectively reasonable as McNeice knew that his Internet use was monitored while at school, and would have also reasonably known that he was publically accountable for web use on a school laptop.
McNeice argued that the deletion of the laptop's temporary Internet files did not constitute abandonment, suggesting instead that it was a way to keep the information private. As to the lack of password, McNeice submitted that act of deleting the temporary Internet files was the equivalent of protecting them with a password.
The B.C. Court of Appeal held that deletion of files was more closely related to an intention to destroy, or at least conceal from view, than an intention to abandon an interest. In both R. v. McNeice and R. v. Cole, the court noted that the information at risk was sensitive (core biographical information) and that employer policies were vague (in R. v. Cole, the employer policy permitted the use of laptops for personal use; in R. v. McNeice, there was no policy that prohibited personal use). The court also found that the deletion of the files by McNeice had the same practical effect as password-protecting them.
As a result, the court held that a warrant should have been obtained to search the laptop. However, the court also found that to exclude the illegally obtained evidence would bring the administration of justice in to disrepute and ultimately upheld the conviction.
Somewhat disappointingly, the B.C.Court of Appeal did not take up the Supreme Court's invitation in R. v. Cole to address the "finer points of an employer's right to monitor computers issued to employees." This issue of employer monitoring remains unresolved.
Both R. v. McNeice and R. v. Cole should serve to alert employers about the need to have adequate policies in place regarding use of employer technology. This will become increasingly important as more and more workplaces move to Bring-Your-Own-Device environments. In addition, employers should be aware that no one factor (employer ownership of technology, policies) will serve to eliminate an employee's reasonable expectation of privacy, which will continue to be fact-driven.
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