Material on Employer Computer Private, Court Rules
Mar 29, 2011
computer, porn, privacy, racialization
A recent court decision in Ontario has broke new ground on an issue that is exploding into the court system – the extent to which internet information is private and beyond the reach of the law.
The Ontario Court of Appeal has found a right to privacy in material contained on a work computer. The case involved a Northern Ontario high school teacher charged with possessing child pornography.
The defendant’s work responsibilities included monitoring students’ emails and files. He is alleged to have discovered a large collection of explicit nude photographs of an underage female student and copied them to the hard drive of his own computer. A school board technician later found the images, copied them onto a disc and seized the defendant’s laptop for a full search. It was then delivered to Ontario police.
The Court found that the school board employee did not breach the Charter protection against unreasonable search and seizure because he was mandated to do so. The police search, however, was an entirely different matter. On this issue the judge found that by giving tech devices to employees, along with permission to take them home on evenings and vacations, the employer gave “explicit permission to use the laptops for personal use.” Ontario police were found to have in fact violated the defendant’s privacy rights under the Charter.
It appears rather obvious that this decision has repercussions for all employees who use their electronic devices for personal purposes. Although the employer may own the laptop computer or BlackBerry, that doesn’t give them the power to waive the employee’s privacy rights. In that sense, people don’t just artificially “switch off” their privacy interests just because the electronic device in question is owned by somebody else.
Privacy experts point to the changing nature of work as contributing to situations such as this. If companies want their employees to be available at all hours and give them smartphones and laptop computers so that they can conduct business outside normal hours, it is inevitable that people are going to use those devices on their personal time as well as business time. That seems to be a consequence of being on call beyond eight hours a day.
What isn’t clear from this decision, however, is whether there is a distinction between portable devices and those – such as desktop computers – that never leave the workplace.
It’s a pretty safe bet that technological development will continue to outpace the law. We should expect to see more cases of a similar nature in the future.
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