Employee’s personal files on work computer private: Court

Police needed a warrant to search teacher’s work laptop in child pornography investigation
|employmentlawtoday.com|Last Updated: 03/23/2011

The Ontario Court of Appeal has established boundaries when it comes to privacy for employees’ online activities, even if they are performed on computers owned by the employer.

Sudbury, Ont., communications technology teacher Richard Cole was charged with possessing child pornography after numerous explicit images of an underage female student were found on his work laptop computer. Cole was responsible for checking out students’ emails and files on the school system and came across the images. He then copied them onto the laptop he had been issued by the school, which allowed him to use it for personal items as well as work.

A computer technician found the images on Cole’s laptop while doing maintenance and informed the school principal, who asked Cole to turn in the laptop for a search by a school board official. The official copied the Internet browsing history onto a compact disc and turned over the laptop and disc to police. After police searched the materials, Cole was charged.

The Ontario Court of Justice found the evidence from the laptop should be excluded from his trial because police obtained it without a warrant and infringed on Cole’s expectation of privacy with regards to his personal computer use. The decision was overturned by the Ontario Superior Court, which brought the case before the Court of Appeal.

The Court of Appeal agreed with Cole’s argument that his charter rights were violated by the police when it searched the files from his personal Internet browsing. However, the court found the image files found by the school’s technician were acceptable as evidence because the technician’s search was part of normal maintenance procedure and not beyond reasonable expectations of privacy for the laptop. The technician also only searched and copied the images and didn’t delve further into Cole’s personal files.

The appeal court found the evidence gathered from the police search could not be included in Cole’s trial but the images of the student found and copied by the school’s computer technician could.

“The technician was acting within the scope of his functions when he came across the student photographs and thus did not violate (Cole’s) modified privacy interests,” said the Court of Appeal. However, the police search of the laptop “potentially exposed intimate details of (Cole’s) personal choices and could have exposed intimate details of a personal nature.”

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