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By Malcolm MacKillop and Meighan Ferris-Miles Computer privacy Balancing employee privacy rights against employer's right to search workplace computers. W orkplace privacy is one of the fast- est evolving areas in employment law. Recently, the Ontario Court of Appeal recognized for the first time an employee's right to privacy in the personal information they store on workplace computers. While the case was a criminal proceeding, the prin- ciples laid down by the court are appli- cable to employment law. Employers will want to carefully consider the 2011 decision in R. v. Cole when drafting their computer-use policies. charged Cole with possession of child pornography. Cole sought to have the evidence excluded. At issue on appeal was whether Cole had a reasonable expectation of privacy to the contents of a work computer. The evidence obtained from Cole's computer was excluded from the trial. The court found that Cole had a rea- sonable expectation of privacy in the laptop's hard drive and the personal information it contained. In coming to the decision, the court relied heavily on the computer-use policy in place between the parties. Ownership of the device is no longer determinative in assessing whether employees have a reasonable expectation of privacy. Richard Cole was a computer science teacher. He was provided a laptop by the school board and had access to data stored on student computers connected to the network. Cole accessed a student's e-mail account and found nude photo- graphs that his underage girlfriend, also a student at the school, had sent. Cole copied them onto his own computer and stored them in a hidden file. One of the board's IT technicians remotely accessed Cole's history of Internet access and one of his drives. The technician found the hidden folder and opened it, uncovering the nude images of the young student. The technician copied the photo- graphs onto a disc and notified the principal, who provided them to the police with the computer. The police Although the computer was owned by the board, teachers were expressly permitted to use their computers for personal reasons, to store personal information on them, and to take them home during weekends and vacations. Furthermore, the policy did not assert the right of the board to search, moni- tor, or otherwise police the laptops, except for the purposes of maintaining the technical integrity of the school's information network. The technician's search of Cole's computer was reasonable because of his right of access to protect the integri- ty of the school's information network. However, the technician's discovery of the photographs during the course of his implied right of access did not change Cole's reasonable expectation of privacy in the contents of his laptop in relation to the police. The police did not have the right to search the laptop without obtaining a search warrant. Although the board owned the lap- top, it was not entitled to give police permission to search it. Cole's charter rights were breached. What employers should know: This case involves an important issue for employers. Employers often provide their employees with technology to help them perform their duties, whether it is a laptop, BlackBerry, or other device. Employers who do so should consider the following tips: Consider prohibiting personal use. Ownership of the device is no longer determinative in assessing whether employees have a reasonable expectation of privacy. Allowing employees to use their devices for personal use now cre- ates a reasonable expectation of privacy that could hinder an employer's ability to properly manage its workplace. Develop a clear and comprehensive policy. As this decision demonstrates, an employee's reasonable expectation of pri- vacy can be diminished or eliminated through a properly worded policy. Ensure your computer- and Internet-use policy is updated to regulate the use of all compa- ny-owned equipment. Consider adding to your policy a warning that employees have no expectation of privacy in their use of workplace technology. Include a warning to employees that the employer reserves the right to monitor their use of technology. A clear policy is critical both in terms of communicating your expecta- tion to employees and in terms of control- ling the reasonable expectation of privacy of employees. IH Malcolm MacKillop and Meighan Ferris-Miles practise employment law at Shields O'Donnell MacKillop LLP in Toronto. INHOUSE AUGUST 2011 • 11