Thursday, February 20, 2014

Blurred Lines – Privacy and the Work/Personal Computer

BY ANA KRALJEVIC, LAWYER, WISE LAW OFFICE

In today’s computer age, almost all of our actions, from banking to online shopping to private communications with loved ones can be accessed and viewed with just a few clicks and single successful password attempt.  

And while this naturally raises security concerns regarding privacy in our private lives, is our expectation of privacy diminished when it comes to computers in the workplace? 

Does it make a difference if the computer issued by the workplace is also permitted for personal use?

This was precisely the question that was addressed by the court in the decision of R. v. Cole.  This ruling shed some light as to when an employee has a right to a reasonable expectation of privacy and under what circumstances this right can be curtailed.  It recognized that the intersection of law with technology in today’s modern workplace requires that we define who can be privy to the sensitive information accessible by computers and how the expectation of privacy must be harmonized with competing interests. 

The Facts
The accused, a high-school teacher, was supplied with a laptop computer by the school where he taught communication technology.  The computer was for work purposes as well as for personal use.  The teacher was also a sitting member of the school’s technology committee which conferred him with domain administration rights to the school network.  The appellant was authorized to remotely access the data stored on student computers connected to the school network for the purposes of policing and monitoring. This was how he was ultimately able to access a student’s e-mail account and view nude, sexually explicit photographs of an underage female student.  The appellant then copied the nude photographs onto the hard drive of his school-issued laptop.

A computer technician employed by the school board accessed the contents of the accused’s laptop while monitoring the integrity of the school network and performing a virus scan.  The technician discovered a hidden folder on the appellant’s hard drive that contained the images of the underage student.  The technician took a screen shot, verified that the girl was a student and promptly informed the principal.  The principal instructed him to copy the images onto a disc.  A school board official then searched the laptop and copied temporary Internet files from the accused’s browser history onto a second disc.  The teacher was suspended from school and the computer was seized by school officials.  The two discs and laptop were handed over to the police who searched them without a warrant.  The accused was charged with possession of child pornography and authorized use of a computer. 
The accused successfully applied to exclude the evidence of the images under s. 24(2) of the Canadian Charter of Rights and Freedoms on the grounds that the searches violated his rights pursuant to s. 8 of the Charter.  The summary conviction appeal court overturned that decision and sent the matter back for a retrial.  The accused appealed.

The Key Issues
On appeal, there were a number of issues that the court turned its mind to:

1)   Did the technician’s access of the teacher’s hard drive for maintenance purposes violate the teacher’s s. 8 Charter rights?

The accused had no expectation of privacy with respect to access to his hard drive by his employer’s technician for the limited purpose of maintaining the integrity of the school’s information network.  Section 8 of the Charter was not invoked by either the technician’s or the principal’s actions.  The principal acted reasonably and lawfully in instructing the technician to copy the images onto a disc and in seizing the laptop from the accused.  The accused’s rights under section 8 of the Charter were not infringed by the principal’s search of the computer or the school board’s search of the computer.

2)  Were the teacher’s rights under s. 8 of the Charter infringed when police searched the computer without a warrant?

While the court did not flinch in affirming that the school board had a right to access the appellant’s hard drive for certain limited purposes, the warrantless police search of the laptop crossed the proverbial line and triggered a Charter violation.

The court found that the police search of the computer was too broad in scope and constituted a significant breach of the appellant’s privacy.  The school board was not vested with the authority to authorize the search or seizure of the private files which contained his browser history and included photographs of his wife that he had specifically requested remain private.  

Moreover, the court’s truth-seeking function, as well as the Crown’s case, would not be defeated by excluding the computer and the mirror image of the hard drive. 

Consequently, the evidence was excluded under s. 24(2) of the Charter.  The court held that there were no exigent circumstances that precluded obtaining a warrant before the search was conducted.  There was no potential harm to the students as the teacher had already been suspended and the computer was in the custody of school officials.  Also, it was unclear as to what specific purpose would be served by including the use of the temporary internet files. 

This decision demarcates the boundaries of privacy interests when the boundaries of work and private life seemingly blur together.  Its practical implications demand that we shift or re-orient our expectations of privacy.  As R. v. Cole teaches us, information that we subjectively believe to be subject to privacy may not be accorded privacy from a legal standpoint. 
- Ana Kraljevic, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

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