Lakehead University in Thunder Bay, Ontario, switched from an internal email system to Google Mail. The Faculty Association objected on the grounds that this breached terms in the collective agreement giving faculty the right to privacy in their personal and professional communications. ((Article 16.01.03 of the Collective Agreement provides: The Board agrees that members have the right to privacy in their personal and professional communications and files, whether on paper or in electronic form. )) The argument was that because Google and the relevant servers are based in the United States, authorities from that country would have legitimate and other access to faculty members’ communications.
The grievance went to arbitration and the arbitrator ruled [PDF] that Lakehead’s use of Google Mail did not breach the terms of the collective agreement. The faculty association was unable to demonstrate that Lakehead’s email was in fact stored on servers outside Canada, the best evidence being that it was currently stored within the country. Testimony was given (including some by Michael Geist) that in any case the U.S. authorities had various ways of reading faculty mail whether or not it was stored on servers in the United States. Principally, however, the association failed because the arbitrator found that the agreement did not require the university to provide an email system exempt from outside penetration.
The arbitrator concluded:
The Collective Agreement, I have found, does not provide that level of protection. While I am sympathetic to their plight and the fact that big brother could be watching over their e-mail communications, it simply brings to the fore the caution advanced by [University Vice-President] Mr. Pawlowski when he commented upon e-mail systems generally before the [University] Senate. One should consider e-mail communications as confidential as are postcards.
I trust that after numerous warnings of this sort over the years, no lawyer regards email as a mode of communication that is at all secure or confidential. And that where confidential material is sent by email, lawyers use encryption.