For the London Free Press – May 30, 2011 - Read this on Canoe
The recent Ontario Court of Appeal decision in R v. Cole establishes that employees have a reasonable expectation of privacy in the personal use and contents of their work-provided laptop computers.
The case involved a Sudbury high school teacher whose work-provided laptop was investigated by a school board computer technician after a higher than normal amount of network use was noticed. The technician accessed the content on the teacher’s laptop through the school server and found sexually explicit images of a student on the hard drive. The school obtained the laptop and turned it and two discs over to the police who searched both without a warrant and charged the teacher with possession of child pornography and unauthorized use of a computer.
The Court of Appeal ruled that the teacher had a reasonable expectation of privacy in the personal use of his work laptop and in the contents of his personal files on the hard drive. Even though the laptop was owned by the school board and issued for work purposes, the court found that a reasonable expectation of privacy existed.
The Court of Appeal ordered a new trial and that certain of the evidence obtained without a warrant could not be used.
While this decision is regarded by some as a game changer for employee privacy rights, its real impact may be limited by two significant factors. First, the court’s finding of a reasonable expectation of privacy was based on specific facts which may not be typical of all workplace situations. In Cole, the teachers were provided with laptops for use in teaching but they were also explicitly allowed to use the laptops for personal use.
Second, the impact of the decision is tempered by a finding that the teacher did not have an expectation of privacy with respect to access to his hard drive by the school board’s computer technician for the limited purposes of maintaining the technical integrity of the school’s information network and the laptop.
While some commentators are heralding this decision as a significant change in the law, it really doesn’t stray far from conventional wisdom. It may, however, make employers more cautious in how they treat their employees’ personal use of work technology. For those employers who have not implemented a comprehensive technology use policy, this decision should be the impetus for them to do so.