A recent Order of the Alberta Privacy Commissioner underscores
the importance of having, and properly implementing, policies
related to the use and monitoring of company-owned technology like
Blackberries and laptops.
In the Order, the employer undertook an investigation of the
personal use of a company-issued Blackberry by one of its
employees. The employer believed that the employee had used the
Blackberry to make personal phone calls contrary to its policy that
Blackberries could only be used for work purposes. It investigated
by making calls to the phone numbers it believed were questionable.
It obtained the numbers from the monthly invoice it received from
its phone/data plan provider.
When the employer confronted the employee about his personal
calls, the employee filed a complaint with the Privacy Commissioner
alleging that the employer had collected and used his personal
information contrary to the Personal Information Protection
The Privacy Commissioner determined that in tracing the calls
and confronting the employee, the employer had collected and used
the employee's personal information. The personal information
consisted of the identity of the recipients of the non-work-related
calls and the nature of the calls.
The employer argued that it was entitled to collect the personal
information without consent because it had a verbal policy which
restricted Blackberries to work-related use. PIPA allows employers
to collect, use and disclose personal information without consent
for the purpose of investigating possible breaches of employer
policies (being a breach of the employment agreement). However,
after examining the evidence, the Privacy Commissioner found that
no such policy existed. As there was no policy, there could be no
possible breach of the employment relationship that justified an
The employer also argued that it was entitled to collect the
personal information without consent because it was "personal
employee information". PIPA allows employers to collect, use
and disclose "personal employee information" without
consent. However, in order for personal information to be
considered "personal employee information", the
information must be reasonably required by the employer solely for
the purposes of establishing, managing or terminating the
employment relationship. Further, employees must be given notice of
the personal employee information which will be collected, used and
disclosed by the employer, and the purposes for the collection, use
and disclosure. Again, the lack of a policy governing Blackberry
use was fatal to the argument of the employer. As there was no
policy in place preventing Blackberries from being used for
personal use, the collection of the personal information about the
calls was unreasonable. Further, there was no prior notice that
monitoring would occur.
Finally, the Privacy Commissioner disagreed with the employer
that the employee had impliedly consented to the tracing of the
calls because he knew the phone numbers would appear on the monthly
invoices. While the employee knew that the employer would monitor
air time usage, he did not know it might trace those numbers for
the purpose of determining if they were work-related. As such, he
could not impliedly consent to the phone numbers being used for the
This Order shows just how careful employers have to be in
drafting and implementing acceptable use policies for workplace
devices. As most employees are entitled to use these devices for
personal use (and have a reasonable expectation of privacy with
respect to that use confirmed by the Supreme Court of Canada),
employers must ensure that their acceptable use policies are clear
as to what is and is not allowed. They must also advise employees
that use will be monitored and the purposes for that monitoring.
Also, employers must of course be sure to properly implement the
policy and ensure that it is brought to the attention of all
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.
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