Sunday, January 25, 2009

Is the Snoop in PIPEDA Poop?

Is the Snoop in PIPEDA Poop?

Mr. Snoop employs Mr. Innocent. Mr. Snoop downloaded information from Mr. Innocent’s computer. Mr. Snoop suspected Mr. Innocent of using the company email system to send out personal communications (during work hours). Mr. Innocent perceives this as an invasion of privacy and decides to sue Mr. Snoop under PIPEDA.

Well, PIPEDA or the Personal Information Protection and Electronic Documents Act is only enforceable in Canada. So if Mr. Snoop and Mr. Innocent are doing business elsewhere the lawsuit would be quite pointless. Canada is sort of naked in regard to personal privacy protection regarding invasion of employee privacy by businesses however the legislation itself appears to be designed to protect the privacy of the public or customers of companies and not their employees. That said it would be tempting for businesses to invade employee privacy with impunity especially if thats what managers think motivates their workers to increase productivity. It looks more like Chuckie harassing the gerbils.

However it doesn't look like Mr. Innocent really has a case.

A search of the Privacy Commisson of Canada's, "Overview of Privacy Legislation" sugggests that while the PIPEDA Act of 2004 does apply to all commercial activities, it does not extend to employment unless it is a federal (or provincial according to CIPPIC) work, undertaking or business and further explains that provincial laws govern the privacy of employee information.

So, if Mr. Innocent is working for a federal agency like EDC perhaps he may have a case under PIPEDA legislation. Otherwise he may need to rely upon other provincial laws regarding electronic privacy of employees which may prove absent.

At the same time, The Privacy Commissioner makes a few recommendations to employers in Canada. First, that they should always inform their employees of what personal information may be collected, used, and/or disclosed, either in advance of employment or perhaps under terms of contract or inter-office memoranda. Also that employees should be clearly informed as to policies regarding Web, e-mail, or telephone use. Random or continuous surveillance should be revealed to the employees. It would be difficult to work under such conditions. However I do get the impression that Canadians generally trust each other less than perhaps they did ten or twenty years ago. Chalk it up to Americanisation?

The Privacy Commissioner also states, "ensure that information they collect for one purpose isn't used for an unrelated purpose without the employee's consent." Finally the Commissioner agitates that while current laws may not require it, employers should provide access to all personal information held about employees, so that they may qualify or contest the accuracy or completeness of that information.

These would appear to be considerate or common sense approaches for Mr. Snoop to take on to ensure a smooth managerial relationship with Mr. Innocent among others of his descent. If personal information is being used by Mr. Snoop for commercial or illicit/illegitimate purposes above and beyond monitoring personal use of the internet during working hours then perhaps Mr. Innocent could pursue a claim under PIPEDA but again this might be difficult to prove.

A collation of provincial privacy legislation is well represented at The University of Ottawa in "The Canadian Internet Policy and Public Interest Clinic" (CIPPIC) which provides an entire selection of links to various judicial acts across the country but admits, "personal information of private sector workers is not uniformly covered by privacy legislation across Canada. As of March 2007, only those companies that are federally regulated or provincially regulated in Alberta, B.C., or Quebec, are subject to data protection laws in Canada."

So unless Mr. Innocent works for the federal government and/or provincial government or lives and works in Alberta, BC or Quebec there are no clear recourses for him to rely upon if he sues Mr. Snoop and PIPEDA would not be moot for the snoop. A better policy for Mr. Innocent would be to refrain from any internet use at work which might compromise his employment or privacy. Whistle while you work.

As for Korea, I do not write anything on my office computer that I would not mind my employer reading. As I do not have a home computer I frequent my office at any or all hours mixing personal emails, telephone calls, internet use, etc. with no real qualms about disturbing any policies whatever they might be. I am a bird in the attic. The caretaker routinely leaves a light on for me on the stairs. I certainly hope my employers occasionally read my homework.

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