Expect privacy at work? You’re not unreasonable, says Supreme Court

Their workplace, their gear, their company, their rules. So what about your rights? Jesse Brown explains

By now, you hopefully know that your privacy rights take a beating when you go to work.  Employers routinely collect and read your emails, monitor your websurfing, track your presence through security dongles and watch you via CCTV cameras.  As the logic goes: their workplace, their gear, their company, their rules.  Your privacy? Forget it.

Not so fast, says the Supreme Court of Canada in a recent ruling.  Our Charter rights to privacy hinge on the concept of “reasonable expectation.” Get naked at home, and it’s reasonable to expect that your neighbour isn’t sitting in a tree peeping in on you.  Get naked in your backyard, and don’t be shocked if you’re spotted.

It has now been deemed reasonable for Canadians to expect some degree of privacy when using workplace computer gear.  If your office allows you to use your work phone or laptop for personal applications, then your rights to privacy with those apps may remain intact.

The decision went even further: even if your employer explicitly forbids personal use of their machines, employees still retain some right to privacy, albeit a “diminished” one.

From the ruling:

 Computers that are used for personal purposes, regardless of where they are found or to whom they belong, “contain the details of our financial, medical, and personal situations”…This sort of private information falls at the very heart of the “biographical core” protected by s. 8 of the Charter.

So, does this mean that your boss is breaking the law when she checks your browser history?  Not at all.  The ruling recognizes an employer’s right to monitor employee behaviour on work machines in order to look out for “prohibited” usage.

It might sound confusing and contradictory, and it is.  The Court’s point is that each case must be considered individually, and that privacy is not something that Canadians automatically and completely surrender just by showing up to work.  Without setting any specific precedent, the case is considered to establish some principles that introduce ambiguity into the default assumption many employers make: that they have carte blanche when it comes to employee surveillance.  Expect it to be cited in many a forthcoming lawsuit.

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Incidentally, the case that forced this decision is an icky and interesting one.   A Sudbury computer science teacher, tasked with monitoring (spying on) students’ uses of school computers, allegedly intercepted naked self-shots sent by an underage girl to another student.

Then, a school I.T. technician, tasked with monitoring (spying on) teachers’ use of school computers,  remotely searched the teachers’ laptop and discovered the image in a folder labeled “My Documents.” He turned it over to the principal, who in turn called the cops, who seized and searched the teacher’s laptop, but didn’t bother to get a warrant.

The Supreme Court ruling deemed the search a Charter violation, but also ruled that the evidence could be admitted — but in a new trial.

Follow Jesse Brown on Twitter @JesseBrown




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Expect privacy at work? You’re not unreasonable, says Supreme Court

  1. Big Brother is watching and listening more than ever. Including to all the nasty comments I make over the internet.

  2. Expect the privacy debate to heat up even more as the lines between work life and home life continue to blur

  3. The ‘spies spying on spies’ aspect of this story is quite comical, and worthy of satirical screenplay treatment in the vein of ‘The President’s Analyst’.

  4. always keep the company computers & all their equipment for work only. Do no take & make any personal calls on their phone systems. Do not use their wifi. Keep your phone & all computer out & away from work. park your vehicle in a lot away from work, do not share rides & offer them. use transit and/or walk. give a mailing address & never your home address. discipline & train family and friends to never ever call you @ work, at the time of pagers, you could get a numeric basic service cheaper & that is your phone number, always use a pay phone to call work, never your home or cell. do not gossip and go to company functions & volunteer.
    arrive & leave on time.
    forego benefits for more pay & keep your medical & financial away from work. do not reside in the same area of work. work contract, piece work & lump sump. independent operator status.
    do not handwrite anything, sign for anything> couriers UPS, Fedex & others have the digital signature pad storing your name & handwriting forever.
    do not accept registered mail & courier.
    do not work in a place who requires id badges & secure entry cards, biometrics & photo stuff.
    be ok & don’t accept employee of the month garbage.
    there are many more things to consider.
    never bank online, or telephone.
    do not purchase anything online.
    use cash ONLY for all transactions.
    no credit//debit/gift cards.
    do not write any checks, accept checks. pre authorised payments & so on.
    never use your own name ever on the internet for whatever.
    live in a place with webcams/security cams & so on.
    do not accept your pic> your likeness & your voice to ever be recorded.
    never call 911 & even if you get raped keep your mouth shut.
    the after is worst then the action itself.
    there is more think for your own situation.
    PRIVACY IS YOUR RIGHT & RESPONSABILITY.
    It use to be that if you ever came across something that wasn’t mean for you to know,
    see, hear and so on> you walked away. it is called *DISCRETION* WHICH IS RATHER RARE THESE DAYS> still you can teach it to your descendants. and train others in it.

  5. In today’s modern society we voluntarily give up our personal privacy rights and
    liberties on a daily basis. When we travel, we will most likely have to go
    through full body x-ray scanners at airports. When we enter an amusement park
    or go to a concert, our bags and sometimes even our persons are patted down and
    checked. When we get our computer fixed we are asked to disclose computer
    passwords and other relevant information. We all understand why we sacrifice
    our rights and freedoms in these instances and voluntarily continue to do it.
    One can choose not to go to an amusement park to avoid having their bag
    checked, for example. Could the same be said about the workplace? If one did
    not want to be subjected to continuous surveillance and monitoring (and
    potential intrusion on their privacy), couldn’t they just choose not to work at
    that particular place or for that particular company?

    I do not think one should have high expectations of privacy in the workplace. You
    are in an environment where you and your work ethic are being constantly
    evaluated and monitored. This is not to say that your employer is justified in
    looking through your personal e-mail, or your Facebook/Twitter/etc. account,
    but perhaps you should not access those sites while at work or from work computers,
    leaving it in your browser’s history.

    If your work gives you a personal computer, it is still company’s property. They
    reserve the right to request you to return it, it’s not as though it is a gift
    to you as an employee. You are simply granted access to it to assist you with
    work-related activities and tasks. One way to think about it is as though the
    computer is on loan to you. You wouldn’t rip out pages of a library book you
    just borrowed, or glue pornographic pictures in it, so why would you do that to
    your company’s computer? If one chooses to misuse the computer left in their
    temporary care, I don’t see why the company should be shunned and looked down
    upon when it monitors the employees’ use of the computer. How can the workers’
    productivity be established otherwise? The employer reserves the right to know
    his/her employees are being faithfully productive in the workplace, and even if
    they are using the work computer for personal use, that they are not misusing
    it.

    Employees are the face of the company, and if they use work computers for their own
    personal activities, or worse – illegal activities such as collection of child
    pornography, they should be held responsible. Whether these activities take
    place at home or at work, as long as they are done with the help of the work
    computer, the company should have the right to search and/or confiscate its property
    without a search warrant. Actions like these reflect unfavourably on the
    company and make everyone associated with that particular company look bad, and
    to some extent suffer the consequences and social stigma that might be associated
    with having someone with pedophilic tendencies or fantasies as a
    coworker/employee.

    Section 8 of the Charter states that “everyone has the right to be secure against unreasonable search and seizure.” That said, the emphasis is placed on considering the
    circumstances and one’s reasonable expectation of privacy. But what were the circumstances and one’s reasonable expectation of privacy in this case?

    The teacher in this case was told he could use the computer for his personal use. Since the computer was still the school’s property, the teacher should have had
    enough decency and to be quite frank – wit, to not copy and save nude
    photographs of one of his students, which he obtained from intercepting his
    students’ e-mails. Yes, it was this teacher’s responsibility to patrol students’ e-mails and files, just like it was the IT’s responsibility to monitor teachers’ use of school computers. When you think about it, both the IT and the teacher did similar things, yet the IT, the principal and the police are condemned for it, whereas the teacher (whose actions were actually illegal) is seen as the victim of arbitrary, unjustified search and seizure. Just how just is our criminal justice system?

    The court said that the School Board had the right to access the guilty teacher’s computer, but that the police should have obtained a warrant before going through it. If
    the principal seizes and searches the computer, and stumbles upon the evidence
    (i.e. nude pictures of underage female student), wouldn’t that be enough to give the
    police lawful access to the information stored on that computer, with or without a judicial warrant? The principal confirmed that the evidence was there, and even witnessed it with their own eyes. It’s not like the principal merely suspected there was child porn on the teacher’s computer and handed it over to the police who then went through it without a warrant. Nor did the principal act outside of his/her authority by seizing the computer, since the School Board is responsible for its teachers and students safety and security.

    It is common knowledge that employees have a diminished expectation of privacy in their workplace. This is particularly the case when it comes to being assigned a computer for work-related purposes, since it might be monitored. This is why it is unwise to store personal information on public computers, work computers or computers that belong to someone else (i.e. company, school, etc.) since that information can be easily retrieved, copied, shared and misused. Because the accused teacher failed to abide by the school rules and regulations, and willingly chose to break the law with the help of the computer assigned to him by the school, the IT personnel, the principal, and the police did not act
    unreasonably, and did not infringe on the teacher’s rights under s. 8 of the Charter.

    I am somewhat satisfied with the decision of the Court of Appeal, because I do not believe that the evidence should be dropped/discredited because of the way it was
    obtained. I think the way in which it was acquired in this case was perfectly lawful and justifiable under the circumstances. All parties (except for the defendant) acted within their legal boundaries. I am not convinced that the teacher’s rights were violated under the Charter, but I do agree that a new trial is in order.

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