Expect privacy at work? You're not unreasonable, says Supreme Court - Macleans.ca

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

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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