This post was also written by Frederick Lah.
Standards for determining whether an employee has privacy rights with respect to an employer-issued communications device continue to develop. The analysis continues to be grounded in a detailed, fact-specific analysis of what the employee has been told, and permitted to do, by the employer. Recently, the Court of Appeals for Ontario found that a high school teacher had a reasonable expectation of privacy in personal information stored on his work computer based on the facts presented.
A high school teacher was issued a laptop by the school to take home and use on weekends for his exclusive personal use. In addition to keeping some personal files on the laptop — which was protected by a password determined by the teacher — the teacher allegedly possessed sexually explicit photos of a student at the high school where he was employed. When one of the school’s computer technicians noticed an unusual volume of activity on the teacher’s laptop, he investigated the teacher’s computer as part of his duties and found the photos. Upon informing the school’s principal of the photos, the school then handed the laptop over to the police who took a mirror image of the laptop’s hard drive without obtaining a warrant. The officer believed that any data, including personal data, on the school’s laptop belonged to the school. The teacher was arrested thereafter.
The Court of Appeals for Ontario disagreed with the officer, and held that the teacher had a reasonable expectation of privacy, subject to the technician’s limited right of access to investigate the network pursuant to his work responsibilities. Therefore, the police’s independent warrantless search violated the teacher’s reasonable expectation of privacy in the personal data stored on the computer. With little Canadian law on the issue, the court distinguished the case from the leading American decision on the issue, United States v. Ziegler, 474 F.3d 1184 (9th Cir. 2007), cert. denied, 552 U.S. 1105 (2008) (employer had right to search computer because employer maintained control of the computer). The court explained that unlike Ziegler, the teacher in this case was expressly permitted to store personal information on his work computers and thus, the school board did not have the authority to consent to the warrantless search of the computer. The court concluded that, “Searching a computer that is used for personal purposes is potentially among the most invasive of searches.”
This case shows that the recognition of employee privacy rights with employer-issued communications devices will continue to depend on the specific factual circumstances of what the employee is expressly permitted to do by the employer.