Case Report – Ontario C.A. comments on faculty e-mail privacy

On February 17th, the Ontario Court of Appeal affirmed an order that required images of two work computers of a university professor to be sent to France for use in a terrorism investigation. In its earlier leave decision, the Court commented generally on a faculty member’s privacy interest in her work e-mails.

Simmons J.A., sitting in chambers, made a decision to grant leave last December 22nd. In doing so, he commented on the applicant’s privacy interest in her work computer based on evidence of faculty collective agreement provisions that granted a right of privacy in personal communications. He did not have the university’s acceptable use policy before it, and refused to take judicial notice that there was a privacy-limiting policy in place. Simmons J.A. said:

I am not prepared to take judicial notice that a similar acceptable-use policy exists in this case. As I see it, the work and research generally done by university professors is qualitatively different than done by high school teachers [as in the Cole case] and could require a heightened level of personal privacy and security. In the absence of evidence on the subject, I am not prepared to assume that an acceptable use policy exists or that university network administrators were entitled to access the applicant’s private e-mail or electronic files or to monitor her Internet usage.

On the contrary, in my view, the collective agreement referred to above suggests that Carleton University professors are entitled to use their work computers for personal communications and research and that they have an objectively reasonable expectation of privacy in relation to personal electronic data. Moreover, because computers can be used to store large quantities of personal information (e.g. banking records, personal contacts, personal communications, etc.), in my opinion it is at least arguable that the applicant’s claim to a reasonable expectation of privacy in her electronic data is a matter of significant importance to her.

Though very qualified and therefore limited in its authority, this statement reveals a different attitude than is commonly expressed about stored communications on employer systems whether inside or outside of the university sector.

On February 17th, a three-judge panel of the Court dismissed the appeal without commenting on the reasonable expectation of privacy issue. The Court held that the order was lawful because there were reasonable grounds to suspect that the terrorism suspect was using the applicant’s work computers to e-mail others.

France (Republic of) v. Tfaily (2009), 98 O.R. (3d) 161 (C.A.) [not online] and 2010 ONCA 127 (CanLII).

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