Yesterday the United States Supreme Court granted certiorari in the case of Ontario, CA, et al. v. Quon, Jeff, et al.. (No, not that Ontario; no, not that CA.) Quon is a police officer who sent hundreds of personal text messages to his girlfriend and others on a device provided by Quon's employer, which had an informal policy that it wouldn't inquire into an employee's use of the device if he or she paid for the cost of extra usage. The 9th Circuit Court of Appeals [PDF] ruled that the town's review of Quon's messages was an unreasonable search in the circumstances.
A brief review of the matter is provided by the Wall Street Journal.
It seems to me that in our occasional discussions here of employee privacy, we've assumed that the employer has the unalloyed right to review emails or other documents created during work hours on devices provided by the employer for the purposes of the job. Is that, essentially, the Canadian position on texting or emailing at work?
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In my view it certainly has been Simon, though the objective reasonableness requirement in privacy legislation changes the game. Even for employers who are not regulated, I've sounded a caution though, citing Quon in this article:
http://bit.ly/7GvVIx
And for more on the objective reasonableness requirement see my interview with Melanie Bueckert here:
http://bit.ly/3GOJTq
Great issue for the day.
Dan
Dan, is the employers' right to review legally entrenched or is it "just the way we do things"? If an employer does not have an IT/acceptable use policy which advises the employee that equipment supplied by the employer may be monitored, can they still take a peek at e-mails, texts, etc?
Thanks for the question Wendy.
First (and again), this is outside of the statutory context and about arbitrator or judge made law.
Unlike in other workplace privacy disputes, Canadian arbitrators have applied an analysis that rests on proof of a "reasonable expectation of privacy" in dealing with the monitoring of stored communications on their systems. The REP concept is a very limiting one. It is theoretically normative (i.e. about what ought to be done in a modern workplace), but is a concept that has proven to be very amendable to employers' power to control expectations through terms of contract and policies that put employees on notice of monitoring, audit and investigation powers. You're right, acceptable use policies have been critical in driving employer-favoured outcomes to date. The question now is whether, given the rise of personal use, they will continue to win the day (especially if drafted poorly or not really enforced…).
Courts haven't addressed the issue (in response to non-union employee claims) to same extent as arbitrators. I'm actually not aware of any court cases about looking at e-mails other than privilege waiver cases, which are based on bit of a different analysis. (Anyone?) In any event, courts are very familiar with the (conservative) reasonable expectation of privacy principle and I imagine they would be drawn to it in resolving monitoring disputes, which would make acceptable use policies front and centre. All the recent ISP customer registration information cases demonstrate courts' willingness to give weight to similar expectation-reducing terms.
Melanie B., you out there? Care to comment?
I agree that, currently, Canadian employers assume that they have the right to review e-mails and texts prepared by their employees on devices owned by the employer. While it certainly helps to have a consistently updated and enforced computer usage policy, such a policy does not appear to be a prerequisite to employers exercising such rights.
Dan's right that employers governed by PIPEDA (or substantially similar legislation) must also ensure that their conduct complies with the objective reasonableness standard imposed by that legislation. This objective reasonableness test is more stringent than the reasonable expectation of privacy test discussed by Dan in his comment here. Both the default position (i.e., ownership = right to snoop) and the reasonable expectation of privacy view tend to empower employers to do as they please with their employees' personal communications. In my personal opinion, as workplace norms evolve, the law will move to provide greater protection to employees' privacy interests and will curtail the ability of employers to review employees' personal communications. The idea of ownership trumping privacy has long been rejected by most academic commentators and numerous labour arbitrators – courts may soon (with the help of legislators?) start thinking this way, too.
I agree with Dan that there have not been many cases on this point, outside of the unionized environment, to date. Some examples are Foerderer v. Nova Chemicals Corp., 2007 ABQB 349, Milsom v. Corporate Computers Inc., 2003 ABQB 296 and Plotogea v. Heartland Appliances Inc. (2007) 60 C.C.E.L. (3d) 216 (Ont. S.C.J.).
I can't resist pointing out that further discussion of this interesting point is contained in chapter 5 of The Law of Employee Monitoring in Canada.