REASONABLE EXPECTATION OF PRIVACY ON WORK COMPUTERS

October 25, 2012


The Supreme Court of Canada (“SCC”) recently decided in R. v. Cole that employees may have a reasonable expectation of privacy in the information contained on their work computers where personal use is permitted or reasonably expected. The SCC declined to go into further details about the “finer points of an employer’s right to monitor computers issued to employees”, but the decision does provide a helpful discussion that is noteworthy for both public- and private-sector employers.
 
The accused in this case, Mr. Cole, was a high school teacher who had a laptop issued to him by the school board. The school board policies provided that users should not expect privacy in their files, and that all data generated or handled by school board equipment was the property of the school board. However, users were permitted to use the laptop for “incidental personal purposes”, which Mr. Cole did, including browsing the internet and storing personal information on the computer’s hard drive.

While performing routine maintenance, a school board technician found a hidden folder containing photographs of an underage female student on Mr. Cole’s laptop. The technician copied the photographs and the temporary internet files onto two discs and notified the principal, who seized the computer and handed it over to the police, along with the discs.   The police then reviewed the contents of the laptop and the discs, and made a mirror image of the laptop’s hard drive, all without a warrant. Mr. Cole was charged with possession of child pornography and unauthorized use of a computer.
 
The trial judge excluded all of the computer material, finding that the manner in which it was obtained constituted a breach of the teacher’s rights under the Canadian Charter of Rights and Freedoms. On appeal, the Ontario Court of Appeal found that the photographs of the student were legally obtained and therefore admissible, but excluded the other computer material.

The SCC allowed the admission of all of the computer material because, while the police infringed Mr. Cole’s rights under the Charter, the infringement was not egregious and the admission of the evidence in all of the circumstances of this case did not bring the administration of justice into disrepute. The SCC found that the exclusion of the evidence would have a “marked negative impact on the truth seeking function of the criminal trial process.”

The SCC also considered whether Mr. Cole’s expectation of privacy was objectively reasonable, and offered the following points to consider when determining whether an employee’s expectation of privacy is reasonable:
  1. The closer the subject matter of the alleged search lies to the “biographical core” of personal information, the greater the reasonable expectation of privacy;
     
  2. 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”, and accordingly, contain information that “falls at the very heart of the biographical core” protected by the Charter;
     
  3. Ownership of property is a relevant consideration,  but it is not determinative;
     
  4. Work place written policies alone are likewise not determinative; and
     
  5. The totality of the circumstances, including the policies, practices, customs, and “operational realities” of the work place, must be considered in order to determine whether privacy is a reasonable expectation in the particular situation.

On looking at the “totality of the circumstances,” the SCC found that Mr. Cole had a reasonable expectation of privacy.

Although this case centred on a Charter analysis, the lesson for all employers arising out of  R. v. Cole is that employees may have some expectation of privacy where personal use of computers is permitted. Employers should therefore ensure that work place policies are communicated clearly and consistently, and are, in fact, put into practice. However, employers should also keep in mind that the SCC described such policies and practices as only diminishing, and not eliminating, an employee’s reasonable expectation of privacy in personal content stored on an employer-issued computer.

For more information, please contact Jeffrey Kriwetz at jkriwetz@garfinkle.com

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