Case Report – Federal Commissioner dismisses GPS complaint

20 Jan

In a recently published decision that is dated May 27, 2009, the Office of the Privacy Commissioner of Canada dismissed a GPS complaint as not-well founded. The decision is evidence of a developing model for permissible GPS use in the Canadian privacy commission and arbitral jurisprudence.

Decision-makers have recognized that vehicle-based GPS systems entail the collection of non-sensitive personal information. Such systems are therefore ordinarily upheld for common fleet management purposes such as dispatch, scheduling and driver safety. Use of GPS data in support of investigations or exception follow-up also appears to be safe. In this case, for example, the OPC held that it was reasonable for a transit organization (the custodian of the GPS data) to report late arrivals to its contracted driver’s employer. Other requirements include notification and the implementation of reasonable security measures.

The limits? There is an expressed aversion to the use of GPS for routine supervisory purposes; in ordinary circumstances GPS is not a substitute for calling a driver to check on his or her whereabouts. Use of GPS as a tool to manage a documented performance management problem on a time-limited basis might be looked upon more favorably.

The case also raises an notable scenario about PIPEDA application, but I will save my thoughts on this complex subject for another day.

PIPEDA Case Summary #2009-011.

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2 Responses to “Case Report – Federal Commissioner dismisses GPS complaint”

  1. Kevin January 20, 2010 at 11:28 am #

    The case seems to suggest that it would be inappropriate to use the data to manage employee performance. I have always been baffled by this. How could it possibly be wrong to use data about hte way you do your job in order to manage your performance?

    I understand the proportionality-type arguments for technology like video surveillance, which captures a lot of non-work-related data. But data that directly indicates whether and how you’re doing your job, and nothing else? Is it privacy-invasive for me to ask you whether you made all of your assigned stops on time that day? Is it privacy-invasive for me to check with customers to ask the same questions?

  2. Dan Michaluk January 20, 2010 at 11:58 am #

    Thanks for the comment Kevin. Needless to say, I agree.

    The aversion, as I understand it, is against continuous monitoring. Employers have made a classic pro surveillance argument in some cases – I have the right to walk the workplace and observe my employees working so why can’t I use a camera (or GPS…) to do the same thing? This hasn’t received a warm reception, and there does seem to be norm that weighs against the use of all technologies as the “eyes and ears” of the workplace. Not right for all contexts though, and I really don’t like the recent Halifax Regional Municipality call centre case of which I’m no doubt sure you are aware. (Of course, your Supreme Court didn’t like it either, but in one of the most honest standard of review decisions I’ve ever seen, left it standing! Amazing.)

    Exception-reporting, investigations and quality audits are really different, and I again agree that employers must be able to do these things.

    Dan

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