March 2011-A recent Court of Appeal decision in Ontario has provided guidelines on the privacy that you may expect in using a computer supplied by your employer.
Portability of computers is now commonplace. Laptops, tablets and smart phones are with us and used 24/7. It is also commonplace that employers are providing these devices to employees. It is reasonable to expect that these portable devices will be used for personal communications as well as work related functions and that all of this information will be stored on the mobile device.
What privacy can you expect under these circumstances?
In the recent Court case, teachers had been provided with laptops, owned by the School Board, with explicit permission to use the laptops for personal use and permission to take the computers home on evenings, weekends and summer vacations. The teachers used their computers for personal use and employed passwords to exclude others from their laptops and stored personal information on their hard drives. There was no clear and unambiguous policy to monitor, search or police the teachers use of their laptops.
In remotely searching one of the teachers laptops, the School Boards IT personnel discovered images that gave rise to criminal charges.
The Court found that the teacher had a reasonable expectation of privacy in the personal use of the employer owned and employer supplied laptop. This right of privacy was limited by the employers right to have its technicians perform work related functions. The teacher had no expectation of privacy with respect to any work related files on his computer.
The important principle decided by the Court is that an employer does not have the right to search through your personal files on the computer simply because the device is owned by the employer in the absence of the employees consent.
The Court concluded that if an employer wants to reserve the right to monitor and review all content on the computers hard drive, personal as well as work related, the employer must make this absolutely clear to the employee. The best way to handle this between the employer and an employee is to have a written policy signed and acknowledged by the employee at the time the computing device is supplied to the employee.
Our advice to employers would be to constantly monitor the development in the law of privacy as it relates to the workplace and to constantly update your policies and procedures. Informed consent can avoid workplace problems.