HR | Atlantic - Positive Change at Work

Employer Laptop & Employee Use

Jun 30, 2011

by Constance Robinson & Matt Walters

Laptop

Until now, the general rule in Canada was that if the employer had a clear policy that what was on the employer’s laptop was employer property,  personal information stored by employees on workplace computers could be accessed by employers.  In R. v. Cole however, the Ontario appeal court muddied the waters considerably.

The Facts

  • A Sudbury high school teacher was provided a laptop by his school.
  • He used the laptop to teach communication technology and he was also responsible for supervising a laptop program for students.
  • The teacher had the authority to remotely access data stored on the students’ laptops. He did this regularly.
  • While reviewing one student’s computer files, he discovered nude photos of another student. The teacher copied the nude photos onto the hard drive of his school-issued laptop rather than reporting the incident.
  • The school’s computer technician discovered the nude photos in a hidden folder on the teacher’s computer, while doing a routine scan for viruses.
  • Upon identifying the girl as a student, the technician notified the principal.
  • The principal instructed him to copy the images, along with the teacher’s Internet surfing history, onto a disk. That surfing history included a large number of pornographic sites.
  • The employer gave that, along with the nude photos, to the police. The police viewed both the disk and the laptop without a warrant.
  • The teacher was charged with possession of child pornography and criminal use of computer systems.
  • The teacher had exclusive use of the laptop and that the laptop was protected by a personal password.
  • Teachers were generally permitted personal use of school computers.
  • The school’s policy and procedures manual prohibited including sexually explicit content on school computers.
  • The manual also said that all data and messages are considered the property of the school board.
  • The manual further advised teachers that the school would access private e-mails if inappropriate use was suspected.
  • In court, the teacher’s lawyer argued that the teacher had a reasonable expectation of privacy in the contents of his laptop. The issue was appealed to Ontario’s highest court.


Court of Appeal decision

The court said the employee has a reasonable expectation of privacy on workplace computers, which protected him against computer searches by the police.

The court found that the teacher did have a reasonable expectation of privacy in the contents of his laptop, at least vis a vis the police. The police therefore violated the teacher’s right against unreasonable search and seizure under the Charter of Rights and Freedoms when they seized the laptop and searched it without a warrant.

The court looked beyond the strict wording of the school’s computer-use policies. It focused instead on the actual practice and customs of the workplace. While the policy was that computers were meant to be used for business purposes, staff routinely used computers to store intimately personal information, such as financial and banking data. All the circumstances satisfied the court that the teacher had a reasonable expectation of privacy in the contents of his laptop. This gave him protection against police seizures and searches.

The court, however, gave the employer more leeway than it gave police. Although the court assumed that the Charter could apply to the school board, it found that the employer didn’t violate the teacher’s Charter rights. The employer didn’t act improperly when it accessed the teacher’s laptop and copied the photos to disk. The employer found these photos while performing normal computer maintenance — an activity that the court acknowledged was within the employer’s right to carry out on its own equipment.

Similarly, the teacher’s principal acted properly in viewing some of the images found by the technician, directing him to copy the photographs onto a disk, and requiring the teacher to hand over the laptop.  Even though this was a “search and seizure,” it was consistent with the principal’s duty to ensure the health and safety of students.  The principal couldn’t be held to the same standard as the police.

As for the employer itself (the school board), it didn’t violate the teacher’s Charter rights either even though it searched the laptop and secured further evidence regarding the teacher’s computer and Internet use before handing it over to the police. The search and the preservation of evidence for internal discipline procedure were in accordance with the employer’s obligation to ensure a safe and secure environment for its students.

We think this reasoning is somewhat askew and would be very interested in a ruling from the Supreme Court of Canada on this, as this is very odd.  If the employer was not breaching a privacy expectation, then are there different types of privacy for employers versus police?

Lessons learned

  • The Employer can do more with the information than the police.
  • Maintain well-drafted policies that make it clear the employee has no privacy rights on the employer’s computers, and exercise the policy in practice.
  • Actively maintain, monitor, and enforce Employer computer-use policies.
  • Data can be accessed on workplace computers in appropriate circumstances and used in internal investigations and later disciplinary proceedings.

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