Case Report – Arbitrator dismisses faculty association challenge to e-mail outsourcing

On May 11th, Arbitrator Joseph Carrier dismissed a grievance that claimed a university violated faculty members’ right to privacy by outsourcing its e-mail system to Google.

The association relied on a collective agreement provision that required the university to provide a “computer connection” and another by which the university agreed, “that members have the right to privacy in their personal and professional communications and files, whether on paper or in electronic form.”

Mr. Carrier held that the promise to provide a “computer connection” was not a promise to provide members with e-mail service. He also held that, having provided e-mail service, the university did not breach its privacy-related undertaking by outsourcing to Google. His conclusion on the privacy claim rested on a finding that e-mail communications are inherently insecure. He said:

It is doubtful, and, indeed, there was no evidence offered to demonstrate that such comprehensive e-mail privacy is technologically achievable. It is beyond credulity that the University or indeed the faculty would have intended such a broad and impractical meaning. How could the University reasonably fulfil such an obligation and, for instance, ensure that no third party would seek out or otherwise gain access to a faculty member’s personal files let alone his or her professional communications? It is my view that the provision as worded has a much narrower meaning. It is not an undertaking to protect members’ privacy from all manner of intrusion by third parties; rather, it is an acknowledgement that those rights exist and, at best, an undertaking by the University itself not to subvert or undermine those rights. If it was intended as an absolute guaranty of privacy from all sources, the language used ought to have been much clearer than exists in this provision. It would have to say, for instance, “the University warrants that it will protect the e-mail privacy of faculty from all manner of surveillance, intrusion and/or interception”. Indeed, as Mr. Bickford argued, privacy rights insofar as they exist in law are never absolute. Canadian courts may and do endorse subpoenas which probe into confidential information held by, for instance, banks and similar institutions. It would be surprising if the University could even begin to insulate its faculty from such intrusion.

Professors Schulhofer and Geist gave expert evidence in the matter.

Lakehead University (Board of Governors) v. Lakehead University Faculty Association, 2009 CanLII 24632 (ON L.A.)

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