Litigation Law Newsletter, Volume 2, Number 3: Can Your Employer Spy on You?

Can Your Employer Spy on You?

Suppose you are an employee of a company and given a work cellphone and laptop computer.  Since you don’t want to walk around with two phones and two computers, you decide to use the cellphone and laptop for personal use as well. 

What rights, if any, does your employer have to review the information contained in your cellphone and computer (pictures, text messages, emails, etc.)?  In other words, what reasonable expectation of privacy is the employee entitled to from the employer?

The answer to this question is complicated. In order to establish that an employee’s privacy rights have been violated, the employee must first establish the existence of a reasonable expectation of privacy, which itself must be determined based on a totality of the circumstances. Some of these factors include the following:

• Whether the employee was granted exclusive use and possession of the cellphone or laptop?

   

• Whether the cellphone or laptop was password protected?

   

• Whether the employee was permitted to take home the computer/laptop on weekends or vacation?

   

• Whether there was a policy or procedure in place from the employer that permitted the personal use of the cellphone or computer?

In Cole, a decision of the Ontario Court of Appeal, the main issue was whether a high school teacher, who had been criminally charged with possession of child pornography and unauthorized use of a computer, had a reasonable expectation of privacy in the contents of a work computer on which he was entitled to store personal information. In the course of routine security work on the school board’s IT system, a school board technician had accessed, through the school server, the contents of the teacher’s laptop, and had found nude sexually explicit images of a student on the hard drive.  He had advised the principal, who directed the technician to copy the images onto a disc, and the principal required the teacher to give him the laptop.  A school board official searched the laptop and copied temporary internet files from the teacher’s internet surfing history onto another disc. The two discs and the laptop were later turned over to the police.

The Court of Appeal held that the teacher had a reasonable expectation of privacy since the teacher was (i) granted exclusive possession of the laptop, including on his off-work hours; (ii) permitted by the school to use it for personal purposes; and, (iii) using the computer to store sensitive banking and financial information, a fact known to the school. However, the Court also held that the teacher’s expectation of privacy was modified. The Court found that the teacher had no expectation of privacy with respect to access to his hard drive by the school board technician for the limited purpose of maintaining the technical integrity of the school’s information network and the laptop.  Therefore, the Court held that the search by the technician, the principal, and board officials, did not violate the teacher’s reasonable expectation of privacy.

What does this mean for employees going forward?  It means that employees should be careful about what information they store on their work cellphones or laptop computers, even when they are permitted to use it for personal use.