Email and texting may seem private, but we need some legal precedents to be sure. BBC news is reporting that European employers can read employees’ private messages at work.  The argument is that in this case there was a company policy that workers were not to use the internet for anything but work. Thankfully that is no longer very common in the Canadian workplace.

In Canada, email evidence is changing the law.  The requirement that anything with a “semblance of relevance” be disclosed means that law cases have to wade through all your email. They may change the law to remove the word semblance. In such cases, the privacy of the individual seems to be the default, but then special circumstances are argued to be an exception. You are doing this on work time. You did some work from your personal account. Suddenly, everything in your personal account is no longer private. How many exceptions will there be before we know where the line is and what is truly protected?

It is very important that a person be able to depend on the privacy of their electronic communication. We will not be able to use the new technologies if there is a worry that others may be listening in. Even if you decide to be just as honest or forthright despite privacy concerns, the person you are talking to may not feel that way. How will you know and how can you trust they are telling you everything?

Phone conversations on a party line were much different than what happened once the phone lines were individual and secure. And people have been fighting ever since to prevent phone taps except in dire cases that a judge has signed off on. Now we need to be sure there is the same awareness for texting and email.

Precedents are always needed to understand new law or how old laws pertain to new technologies. There are beginning to be several precedents regarding our electronic communication.  In Canada, we have a precedent as of 2013 that says the technology cannot deprive our communication of its privacy.  Texting and email are different than phone because the communication is preserved long after the conversation takes place. They are more like snail mail in that way. We also have a precedent that police can review, use your texts and phone log if your phone is not password protected.

I’m concerned for when employers would ever want to know about the private conversations of their employees. What ethics do they apply that makes them feel entitled to know what employees say to friends or family? The argument that these people are at work and so everything in their lives is owned by the company during work hours seems very draconian.

For that matter, presumably all adult employees are trusted to vote on national issues. Yet an employer wants to be able to review their private life?

There is a precedent in Canada where private files found inadvertently (by a technician checking for viruses) were allowed by the court, but the rest of the contents of the hard drive were excluded from evidence.  This case also sets the precedent that it does not matter who owned the hardware. Your desktops and blackberries from work are not automatically accessible by your employer.

So now we wait to see how precedents in Canada will compare to those in Europe. And the USA. And China. The thing about electronic communication over the internet is that we don’t always know where it will go. It may take a route through somewhere that the law is different. So then we need those international precedents too.

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