Private Information on Work Computers and the Need for Clear Policies and Procedures

Published April 8, 2011

By LeeAnn Cupidio and Steven Indig

If your organization does not have a technology policy in place to deal with the use of electronic devices such as work-issued computers, Blackberrys and cell phones, now is the time to get one. For those organizations savvy enough to have one, it no doubt needs updating.

We bring this to your attention due to a recent Ontario Court of Appeal decision (R. v. Cole) which dealt with the issue of privacy rights in the workplace.  In the decision, the court stated that “if an employer provides devices and allows staff to use them on own time, then they have a right to expect privacy”. This is a complete turnaround from how the courts have typically viewed this issue in the past.

This case involves a teacher who was charged criminally with possession of child pornography after his school found nude photos on the laptop it had issued to him. The school came upon the photos during a regular maintenance check of the equipment.  The Principal of the school immediately took possession of the computer, copied the photos onto disc and notified the police. When the police arrived, they seized the laptop and copied the hard drive without obtaining a warrant, saying they believed that since the computer was school board property, they had authority to conduct a search. The court found that the employee had a “reasonable expectation of privacy with respect to the personal content on the computer”  and that “the school had no authority to consent to the search”.  As a result, the court found that the warrantless search constituted a “violation of his right to be free from unreasonable search and seizure” and the evidence obtained by the police was deemed inadmissible in court.

The school’s actions, however, were perceived differently by the court. The court deemed that the school did not act improperly when it accessed the teacher’s laptop and copied the photos to disc. The court reasoned that em“the photos were discovered while performing normal computer maintenance” and “the preservation of evidence for internal discipline procedure was in accordance with the employer’s obligation to ensure a safe and secure environment”.

What effect does this have in the workplace for NSOs and the like?

It is unlikely that this case will have a significant impact on the issue of privacy in the workplace.

For starters, this was a Charter of Rights case, and the expectation of privacy only applied to the police’s search and seizure of the computer, not the employer’s monitoring and/or disciplining of same. Had the police simply obtained the proper search warrant, the evidence would have been admissible in court.

What it does do, however, is make it clear that although an employer may own the mobile equipment being used by its employees (laptop computers, Blackberrys, I-phones, tablets), it does not own the personal content within the equipment, and therefore does not have authority to “consent” to its disclosure to outside parties – without a warrant.

On a more positive side, the decision does acknowledge that in appropriate circumstances, an employer may access data stored by employees on workplace devices, and that such data can be used in disciplinary proceedings. This is relevant to NSOs, PSOs and other sport organizations that employ coaches who work closely with athletes - and use employer-supplied technology to do so.

Who should be concerned with this decision?

This case is important for organizations with employees who work from home or on the road, and use portable devices issued to them by the organization (this would be most NSOs and PSOs with which we are familiar). As an employer, there are many reasons to be concerned with how your employees are using the equipment while away from work. For example, you want to ensure that they are not using the device to do anything illegal, to harass or bully other employees or members of the organization, or to otherwise harm the organization or its reputation.

What can organizations do to ensure they are protected?

Without clear policies, organizations will not be able to control how their computers and other electronic devices are being used. The Sport Law & Strategy Group recommends the following steps to ensure you are in a position to control the use of your property, while providing a safe environment for your employees:

• Have a clear, written policy to deal with the issue of workplace technology and its use.
• Revise existing technology policies to clarify what is an “inappropriate use” of devices;
• Ensure that your employment contracts clearly set out what is acceptable with respect  to the use of e-mail and internet, and that you intend to monitor that usage;
• Ensure that disciplinary action is clearly noted for misconduct; and
• Ensure that you actively maintain, monitor and enforce the policy.

The Sport Law amp; Strategy Group has provided many NSOs with technology policies in the past, and we encourage you to prepare one for your organization. Feel free to contact us if you have any questions or need help drafting or revising an existing policy. As well, check out our previous articles on this and related topics:
Ontario Bans Use of Handheld Devices While Driving (2009)
The Power of Social Networking and Social Media (2009)Some Thoughts on the Rapid Growth of Social Media (2009)