Monitoring computer use: Are you within the law?

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Employers have had their right to monitor computer use – for security reasons, to prevent illegal activities, and to maintain productivity – upheld in court. However, some practices have been found to cross the line –specifically, to breach an employee’s right to privacy at work. In a 2005 Alberta case, for example, a privacy complaint against an employer who had installed keystroke logging software on the computer was upheld.

One key point is whether the employee has a “reasonable expectation of privacy”.  Password-protected or encrypted files, some other security measures, or working on a personal device are all things that can establish this ‘reasonable expectation’.

One borderline case involved a teacher who took a school-owned laptop home for both work and personal uses. In this case, the privacy complaint was not upheld, primarily because the school had issued specific guidelines and had sent out four reminders in the preceding year about ensuring all content on school-owned computers met with its policy; in other words, there was no expectation of privacy.

It is crucial to have a clear computer monitoring policy that is tailored to your workplace, and according to Toronto-based lawyer Jay Josefo, the policy should include the following elements:

  • All items on the corporate network are the property of the corporation and thus may be reviewed by management without notice
     
  • Management and the IT department reserve the right to examine the employee’s e-mail, personal file directory, hard drive, disks, files, and all other information stored on the company’s information systems, including on any portable electronic devices loaned to the employee by the corporation, where the “loan” is made for primarily corporate purposes and corporate use, with reasonable and limited personal use permitted
     
  • The employer may periodically and randomly audit and monitor communications, items saved, sent, or otherwise on the corporate server, or office-supplied equipment’s hard drive, avoiding any expectation of privacy arising for any such items on the part of the employee
     
  • “Inappropriate” files will be deleted immediately, and employees are subject to disciplinary action up to and including dismissal for inappropriate use of any employer-supplied technology

     

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