Top court to decide if data on work computer is private
How much privacy Canadians can expect when they use work computers for personal use will be under a microscope when the Supreme Court begins hearing arguments this week in a case that could have wide implications for many employees.
The nation's highest court will have to determine how much privacy workers are entitled to for the personal data they store on computer devices they don't own. It's expected to be an important ruling in an era when many Canadians use work-provided computers and mobile devices for everything from personal email, to shopping, to storing family photos.
The case before the Supreme Court of Canada involves a high school teacher in Sudbury, Ont. who was charged with possession of child pornography, after nude pictures of a student were found on his work-issued laptop.
The teacher, Richard Cole, supervised his school's computer network and allegedly used his computer to access the email account of a male student and then copy explicit photos of the student's girlfriend onto his laptop.
A network technician at the school, who noticed a sudden increase of activity between Cole's computer and the male student's account, suspected a computer virus and accessed the laptop remotely. That's when he found the photos.
The principal was called and ordered that copies of the files be made. The school then turned Cole's laptop over to police, who copied Cole's entire hard drive without obtaining a search warrant.
Cole was charged with possession of child porn and fraudulently obtaining data from another computer hard drive.
His lawyers argued that when the police went through his hard drive, his Charter right against unlawful search and seizure was violated.
Police argued that they believed a search warrant wasn't necessary, because it was the school board that owned the computer, not Cole, and the school had voluntarily handed the device over.
The trial judge excluded the evidence gleaned from the hard drive, but a Superior Court judge later overturned that decision. The Ontario Court of Appeal then waded in and ruled that Cole did indeed have a right to expect his personal files on the computer's hard drive would remain private and that police should have gotten a warrant.
However, the court said because the explicit images were easily accessed during a routine maintenance check, they were admissible.
Now, the case is before the Supreme Court of Canada, which has to weigh a number of issues, says lawyer Scott Hutchison, who has litigated and written extensively on search and seizure law.
The court is being asked to decide where the right to privacy ends when it comes to the work computers that are also used for personal activities, Hutchison says.
"Everyone knows that while the computer belongs to their employer, everyone expects they can use it as their own personal property. That's just the reality of how we use them. The question for the court is: How do you reconcile that reality with expectations of privacy? It's a very difficult question," Hutchison tells CTVNews.ca.
It's important to remember that one's expectation of privacy is not absolute, says Hutchison; it changes with the context.
So while employees might agree to forfeit some of their privacy to allow their employer's IT teams to monitor their computer activities, they're not necessarily giving their consent for the police to examine their activities as well.
The Supreme Court now has to decide whether police were entitled to look through Cole's computer on the basis that the school board -- which owned the computer -- had given police its consent to do so.
The Court of Appeal ruled that when the board handed the whole computer to the police, they violated Cole's right to an expectation of privacy. It's a ruling that Hutchison says he agrees with, because it "strikes a reasonable, principled balance."
"It's one thing to say that the employer should have the right to fire you if you have porn on your work computer. No one is saying employers can't be vigilant over their employees and to ensure that their computers aren't being misused," he says.
But it's another to say that the state and police have the right to "piggyback" on that right too, says Hutchison.