The issue of privacy on computers, that are used in a professional work environment, has become a discussion where legal parameters are regarding the limitations of personal and professional use. There are situations that arise within the legal system in which the courts must determine the lines of personal privacy of employees on work-supplied computers.
In R. v. Cole, 2012 SCC 53 (“Cole”), A high school teacher, Mr. Cole was charged with possession of child pornography. The school’s computer technician was performing regular maintenance on school computers when he discovered nude photographs of an underage female student in another student’s school email account. Mr. Cole saved these images onto his school supplied laptop’s hard drive.
Mr. Cole’s laptop information was copied to a disk by the technician and then notified the school principal regarding the situation. The next day, law enforcement seized the copied disks and the physical laptop. The police officer who was involved in the investigation and who also took the computer did not obtain a warrant to search and seize the hard drive or the disks.
The Supreme Court found that Mr. Cole had a reasonable expectation of privacy to the information stored on the hard-drive and the disks, even though they were owned by the school. Since he used his workplace computer to store personal information, financial records, and internet browsing, the teacher had demonstrated both a direct interest in and a subjective expectation of privacy in the information stored on his laptop. The Supreme Court decided Mr. Cole’s subjective expectation of privacy to this information was objectively reasonable.
The Supreme Court held that Mr. Cole’s subjective expectation of privacy was objectively reasonable because the subject matter of the police search fell close to a biographical core of personal information about him. A biographical core of personal information is information which an individual in a free and democratic society would wish to maintain and control from dissemination to the state, including information which tends to reveal intimate details of the lifestyle and personal choices of the individual. The information stored on the laptop was exactly this kind of information, as it revealed the details of Mr. Cole’s personal and financial situation as well as his interests and propensities. The information on the laptop, therefore, weighed in favour of the objective reasonableness of Mr. Cole’s expectation of privacy.
The Supreme Court found that the police had violated Mr. Cole’s reasonable expectation of privacy in conducting an unreasonable search and seizure of his laptop, contrary to the Charter of Rights and Freedoms (the “Charter”). Ways to ensure that problems like this do not arise in the workplace would be to place clear policies regarding the use and limitations of employer-issued technology.
This is an abridged section from the book, “Employment Law Solutions” by Malcolm MacKillop, Hendrik Nieuwland, Meighan Ferris-Miles.