Whose Business is it Anyway

When personal use meets company-owned technology, situations can be complex

By Simon Garfinkel & Alex Lam

As lawyers, we understand the challenges that come with carrying only one device for both business and personal use. There are certain considerations that individuals should take into account to protect their privacy and ensure they do not infringe on any ownership rights.

In this article, we will outline several key points that individuals should consider when using a company device for personal business, including phone calls and messaging, and how it affects privacy and ownership of content.

Company Policies

The first consideration for individuals using a company device for personal business is to review the company policies on device usage. Many companies have strict policies in place that prohibit or limit personal use of company devices. Employees should ensure that they are familiar with these policies and understand the potential consequences of violating them. If personal use is allowed, employees should make sure they are following any guidelines or restrictions set out in the policy.

Separating Personal and Business Matters

When using a company device for personal business, individuals should be careful to keep personal matters separate from business matters. This means keeping personal contacts and messages separate from work contacts and messages. One way to achieve this is by using separate apps or folders for personal and business use. This will help to prevent any accidental sharing of sensitive or confidential information.

Protecting Sensitive Information

When using a company device for personal business, individuals should be aware of the potential risks of storing sensitive information on the device. This includes personal information such as passwords, credit card numbers, and personal identification information. Individuals should take steps to protect this information by using strong passwords and enabling two-factor authentication where possible.

Device Inspections

It is important to note that individuals who carry a device for both personal and business use may be subject to device inspections at border crossings or by security personnel. These inspections could potentially compromise the privacy and security of personal and business data stored on the device. As such, individuals may want to consider taking steps to protect their data before travelling, including backing up important data and removing any sensitive or confidential information from the device. Additionally, individuals may want to consider using a separate device for personal use while travelling to minimize the risk of any personal data being accessed or compromised during an inspection.

Privacy Considerations

Individuals using a company device for personal business should also consider the potential privacy implications. This includes the potential for the employer to monitor the device and the information stored on it. Employers may have the right to monitor company devices to ensure compliance with company policies and to protect against data breaches. However, employees still have a reasonable expectation of privacy when using the device for personal matters. As such, it is important for employees to understand the extent of their privacy rights and to ensure they are not infringing on the privacy rights of others.

Expectation of Privacy in Context of a Criminal Investigation

During a criminal investigation, generally, law enforcement must obtain a court-approved search warrant to seize and search the contents of an individual’s device to further their investigation. The search warrant is prepared by an investigating officer and sets out reasonable and probable grounds that 1) a criminal offence has been committed, and 2) the search of the device will yield evidence of the offence. In some cases, authorities can proceed without a search warrant only where “exigent circumstances” exist, meaning that delaying the search or seizure any longer would result in the imminent danger of the loss, removal, destruction, or disappearance of the evidence in the device.

Expectation of Privacy in Context of Employment

In the course of employment, however, employees still retain a reasonable expectation of privacy in the devices they use regardless of who owns those devices. In one leading case, the Supreme Court of Canada was tasked with determining what, if any, privacy rights attached to an employee found to have engaged in criminal activity on his employer-provided device. There, the Court accepted the proposition that computers are reasonably used for personal purposes, even in the workplace. As such, Canadians may reasonably expect privacy in the information contained on the devices they use where personal use is permitted or reasonably expected, whether in the workplace or at home. 

That’s not to say that employees should expect complete privacy in the employer-owned devices they use. Whether privacy is a reasonable expectation in a given situation will depend on the totality of the circumstances. A factor that weighs against and reduces an employee’s expectation of privacy is the existence of internal workplace policies governing the use of these devices. However, the Court is clear about one thing: even though an employer’s internal workplace policies may reduce an employee’s expectation of privacy in their use of its device, it won’t remove this expectation completely. As the Court put it, a reasonable though diminished expectation of privacy is nonetheless a reasonable expectation of privacy.

Ownership of Content

Finally, individuals should consider the issue of ownership of content when using a company device for personal business. The company may claim ownership of any data or information stored on the device, including personal information. Employees should be aware of their rights to ownership of personal information and take steps to protect it. This includes using personal accounts for personal use and ensuring that personal information is not commingled with business information.

In Summary

To summarize, individuals who use a company device for personal business should be aware of the potential risks and take steps to protect their privacy and ensure they are not infringing on any ownership rights. This includes reviewing company policies, separating personal and business matters, protecting sensitive information, considering privacy implications, and understanding ownership of content. 

By following these guidelines, individuals can help to ensure their personal information remains private and protected while using a company device for
personal business.

Simon Garfinkel and Alex Lam are lawyers at Taylor McCaffrey LLP in Winnipeg.