Friday, November 9, 2012

Canadian Supreme Court Strongly Articulates That Employees Have a Protectable Privacy Interest in Their Company-Issued Computers



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In R. v. Cole, 2012 SCC 53 (Can.) the Court further elaborated on its holding in R. v. Morelli, [2010] S.C.R. 253, 2010 SCC 8 (Can.) that Canadians may reasonably expect privacy in the information contained on their own personal computers by holding that Canadians also may reasonably expect privacy in the information contained on their work computers, “at least where personal use is permitted or reasonably expected.” In Cole, the School Board, according to its Policies and Procedures Manual, owned “all data and messages generated on or handled by [School] Board equipment.”  Additionally, the school Principal reminded teachers, annually, that the Acceptable Use Policy applied to them, a policy that provided that “[t]eachers and administrators may monitor all student work and e-mail, including material saved on laptop hard drives”, and further warned that “[u]sers should NOT assume that files stored on network servers or hard drives of individual computers would be private”.  The Court noted that while statements, policies, and ownership of the devices at issue were all relevant, none were dispositive as to the question of whether defendant possessed a reasonable privacy interest in the information stored on the device.  

The Court found that the employer’s actions in searching the laptop were not improper, primarily because defendant conceded that the initial inspection by an authorized school technician, did not violate his rights.  In so holding, the Court “[left] for another day the finer points of an employer’s right to monitor computers issued to employees.”  The failure of the police, to whom the laptop was subsequently provided, to obtain a warrant prior to inspecting the laptop was, however, a violation of Section 8 of the Canadian Charter of Rights and Freedoms.  

While holding that Mr. Cole had a reasonable expectation of privacy in his Internet Browsing History and the informational content of his work-issued laptop the majority nevertheless found that the lower court erred in excluding this evidence during trial.  In so doing the majority emphasized that, while Mr. Cole possessed a reasonable expectation of privacy in the contents of his work laptop, that it was a “diminished  expectation of privacy in comparison with the privacy interest considered in Morelli”.  (emphasis in original).  Relying in part on the diminished nature of the privacy expectation, in part on the fact that the information provided to the police by the school board “would doubtless have permitted the police to obtain a warrant to search the computer for the contraband[,]” and in part of the searching officer’s alleged good faith, the Majority found that exclusion was inappropriate under the circumstances.

Although agreeing that the behavior of the police violated defendant’s rights under the Charter, Justice Abella dissented from the majority’s conclusion that exclusion was inappropriate.  In so doing, Justice Abella emphasized the privacy interests at stake, first reiterating the Court’s holding in Morelli, that “it is difficult to imagine a more intrusive invasion of privacy than the search of one’s home and personal computer” before going on to state that: “[w]orkplace computers, while clearly engaging different considerations, nonetheless attract many of the same privacy concerns as home computers.”  Finally, Justice Abella opined that:

Workplace computers are increasingly given to employees for their exclusive use, and employees are allowed — and often expected — to use them away from the workplace for both work-related and personal use.  And as more data is stored in the cloud and accessed on both workplace and personal computers, the ownership of the device or the data, far from being determinative of the reasonable expectation of privacy, becomes an increasingly unhelpful marker. In deciding whether to exclude evidence illegally seized from workplace computers, this blurring of the line between personal and workplace usage should inform the analysis.

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