Transcript: Sherry Liang and Avner Levin | Apr 01, 2007

[Theme music plays]

The opening sequence rolls. The logo of “Big Ideas” featuring a lit lamp bulb appears against an animated yellow slate.
Then, Andrew Moodie appears in the studio. The walls are decorated with screens featuring lit lamp bulbs, and two signs read “Big Ideas.”
Andrew is in his early forties, clean-shaven, with short curly black hair. He's wearing a gray shirt.

Andrew says HELLO, THIS IS
BIG IDEAS
AND I'M
SOMEBODY.
I WORK HERE, THAT'S ALL YOU NEED
TO KNOW.
I MEAN WHY DO YOU NEED TO KNOW
MY NAME?
DO I GO TO YOUR PLACE OF WORK
AND ASK FOR YOUR NAME?
AND HOW WOULD YOU FEEL IF I DID?
HOW WOULD YOU FEEL IF I SAT DOWN
AND WATCHED YOU WORK JUST LIKE
YOU'RE WATCHING ME WORK?
HUH?
IF YOU REALLY MUST KNOW, MY NAME
IS ANDREW MOODIE, AND TODAY'S
PROGRAM IS ABOUT PRIVACY AND THE
WORKPLACE.
WE LIVE IN AN ERA WHERE AS AN
EMPLOYEE YOU MAY BE ASKED TO
GIVE UP INFORMATION ABOUT
YOURSELF AND YOUR ACTIVITIES
THROUGH SWIPE CARDS, FINGER
PRINT RECOGNITION, KEY STROKE
MONITORS, INTERNET LOGS, EMAIL
LOGS, GPS LOGS, VIDEO CAMERAS
AND TELEPHONE WIRE TAPPING.
WHAT SHOULD YOUR EMPLOYER BE
ALLOWED TO KNOW ABOUT YOUR?
AND WHAT PRIVACY RIGHTS DO YOU
HAVE AN AND EMPLOYEE?
SHERRY LIANG IS AN ADJUDICATOR
WITH THE INFORMATION AND PRIVACY
COMMISSIONER OF ONTARIO AND
AVNER LEVIN IS A PROFESSOR AT
RYERSON'S FACULTY OF BUSINESS
AND HE'S THE LEAD AUTHOR OF
UNDER THE RADAR.
A NEW STUDY ON WORKPLACE
PRIVACY.
LET'S LISTEN TO WHAT THEY HAVE
TO SAY.

A clip plays in which Sherry Liang stands on a stage behind a wooden podium and addresses a large audience.
A presentation on a wall screen reads “Workplace privacy: an introduction.”
Sherry is in her late thirties, with straight black hair in a bob. she’s wearing glasses and a red blazer.

She says LAST NIGHT
WHILE I WAS PREPARING FOR THIS
PRESENTATION I STARTED DOZING
OFF.

[Audience laughing]

Sherry continues AND I FOUND
MYSELF HAVING THE ODDEST DREAM.
I DREAMT THAT I ARRIVED AT WORK
ONE DAY TO BE CONFRONTED BY MARY
WHO HAD JUST WHO'S JUST GIVEN ME
THE NICEST INTRODUCTION BUT JUST
LET ME TELL YOU WHAT HAPPENED IN
MY DREAM.
SHE SHOWED ME A PILE OF PAPERS,
AND THEY TURNED OUT TO BE COPIES
OF EMAILS THAT I SENT OR
RECEIVED OVER THE LAST YEAR AND
DETAILED LOGS OF ALL MY INTERNET
USE.

A caption appears on screen. It reads "Sherry Liang. Legal Counsel, Information and Privacy Commissioner of Ontario. Arts and Letters Club, Toronto. February 15, 2007."

Sherry continues UNFORTUNATELY I HAD FALLEN INTO
AN ONLINE GAMBLING ADDICTION.
AND THESE
RECORDS SHOWED THAT I'D BEEN
SPENDING HOURS OF WORK EVERY
SINGLE DAY WITH MY ADDICTION.
I CRIED, I APOLOGIZED, I SAID I
WOULD NEVER ABUSE MY COMPUTER
PRIVILEGES AT WORK AGAIN, I SAID
I WAS JOINING A SUPPORT GROUP.
AND MARY FORGAVE ME.
THIS IS IN MY DREAM.

[Audience laughing]

Sherry continues UNFORTUNATELY I
WASN'T ABLE TO KEEP MY WORD.
AND I STARTED TAKING DAYS OFF TO
GO TO THE CASINO.
I EVEN STARTED PHONING IN SICK
SO I COULD GO TO THE CASINO.
UNKNOWN TO ME, MARY HIRED A
PRIVATE DETECTIVE TO FOLLOW ME
AROUND, AND ONE DAY SHE
CONFRONTED ME WITH VIDEO TAPES
THAT SHOWED THAT INSTEAD OF
BEING AT WORK OR AT HOME SICK, I
WAS AT THE CASINO.
SO I WAS FIRED.
WELL I HAD A HARD TIME FINDING
WORK AFTER THAT BUT TURNED OUT
THAT I WAS ABLE TO FIND AN
EMPLOYER THAT SEEMED WILLING TO
TAKE ME ON.
UNFORTUNATELY THERE WERE A FEW
CONDITIONS.
THIS EMPLOYER WANTED ME TO GIVE
A URINE SAMPLE TO TEST FOR DRUG
AND ALCOHOL USE.
THEY ALSO SUGGESTED THAT I HAD A
RADIO FREQUENCY IDENTIFICATION
CHIP IMPLANTED NEAR MY WRIST.
THEY SAID THIS WAS FOR ACCESS
PURPOSES, AND BY THE WAY THERE
WOULD BE A SIDE BENEFIT.
I COULD BUY MY MEALS AT THE
COMPANY CAFETERIA WITHOUT
CARRYING CASH AROUND.
I NEEDED THE JOB SO I AGREED TO
THOSE CONDITIONS.
ONE DAY I WAS ON A BUSINESS TRIP
AND USING A COMPANY CAR.
THERE WAS A SEVERE WEATHER
WARNING AND THEN OUT OF THE
BLUE, A TORNADO STRUCK.
ONE OF THE BUILDINGS WORST HIT
HELD THE OFFICES OF A CLIENT
THAT I WAS TO BE VISITING THAT
DAY.
MY FAMILY WAS VERY CONCERNED
THAT I WAS IN THAT BUILDING AND
SO THEY ASKED THE COMPANY TO
TRACK ME DOWN.
FORTUNATELY MY COMPANY CAR WAS
EQUIPPED WITH A GPS.
A GLOBAL POSITIONING SYSTEM.
AND THEY WERE ABLE TO GIVE MY
FAMILY THE COMFORT OF KNOWING
THAT I WASN'T IN THE BUILDING.
UNFORTUNATELY THEY WERE ALSO
ABLE TO DISCOVER THAT I WASN'T
ANYWHERE NEAR THE BUILDING AND I
WAS AT THE CASINO INSTEAD.
SO AT THAT POINT I WOKE UP.
WELL LIFE HAPPILY ISN'T USUALLY
LIKE THAT.
INTO MY FICTITIOUS DREAM I
ROLLED TOGETHER A NUMBER OF
EXAMPLES OF THE WAYS IN WHICH
THE WORKPLACE CAN HAVE AN IMPACT
ON OUR PRIVACY.
SOME OF THOSE EXAMPLES ARE QUITE
FAR OUT AND ARE UNLIKELY TO EVER
HAPPEN.
SOME OF THEM DO OCCUR EVERYDAY
IN SOME WORKPLACE OR ANOTHER.
AND ARE PRETTY COMMON PLACE
PRACTICES OR POLICIES.
AND WHILE MY DREAM WAS MEANT TO
SHOW YOU SOME OF THE WAYS IN
WHICH WORKERS CAN BE MONITORED
AND TRACKED IN THE WORKPLACE IT
ALSO SHOWS THAT THERE ARE TWO
SIDES TO THE COIN AND THAT
EMPLOYERS HAVE IMPORTANT
INTERESTS THAT ARE EFFECTED BY
WHAT VIEW WE TAKE OF WORKPLACE
PRIVACY AND HOW FAR WE GO IN
PROTECTING PRIVACY INTERESTS.
WHAT I PLAN TO DO IN THE NEXT
LITTLE WHILE IS TO PROVIDE A BIT
OF AN INTRODUCTION TO SHOW HOW
THE LAW TREATS WORKPLACE
PRIVACY, THE SOURCES OF WORKER
PRIVACY RIGHTS AND SOME OF THE
LIMITS ON THOSE RIGHTS.
IN 1993, THE INFORMATION AND
PRIVACY COMMISSIONER ISSUED A
PAPER CALLED “WORKPLACE PRIVACY,
THE NEED FOR A SAFETY NET.”
AND IN THAT PAPER WE SURVEYED
SOME AREAS IN WHICH EMPLOYEES
WERE VULNERABLE TO INTRUSIONS ON
THEIR PRIVACY.
CONCLUDING THAT...

A slide pops up titled “Introduction: The IPC and Workplace Privacy.”

A highlighted section of the slide reads “The IPC believes that issues of workplace privacy cannot be left unattended. There is a need for a privacy safety-net for all employees in Ontario. The existing regulatory framework in Ontario is fragile on several fronts.”

Sherry continues THAT WAS 1993
AND AT THAT TIME PUBLIC SECTOR
EMPLOYEES WERE THE ONLY ONES IN
ONTARIO COVERED BY COMPREHENSIVE
PRIVACY PROTECTION LAWS.
WELL A FEW YEARS LATER IN 1995
THE LAWS WERE CHANGED AND THESE
PROTECTIONS WERE TAKEN AWAY FROM
PUBLIC SECTOR EMPLOYEES BY
AMENDMENTS TO OUR LEGISLATION.
WE'VE BEEN HOPING THAT
SUCCESSIVE GOVERNMENTS WILL
RESTORE THOSE RIGHTS TO PUBLIC
SECTOR EMPLOYEES.
IN 2003 FOR EXAMPLE IN OUR
ANNUAL REPORT WE CALLED FOR A
REPEAL OF THOSE CHANGES.
THE IPC HAS ALSO URGED THE
PROVINCIAL GOVERNMENT TO ENACT
PRIVACY LAW THAT APPLY TO THE
PRIVATE SECTOR AND THAT WOULD
INCLUDE SOME COMPREHENSIVE CODE
TO DEAL WITH ISSUES AROUND
WORKPLACE PRIVACY.
BECAUSE AS YOU'LL SEE IN THE
NEXT LITTLE WHILE, THE LEGAL
FRAMEWORK AROUND WORKPLACE
PRIVACY IN ONTARIO IS A BIT OF A
PATCH WORK.
THERE'S NO ONE LAW, NO ONE SET
OF REGULATIONS, ONE CODE THAT
YOU CAN POINT TO THAT TELLS YOU
WHAT THE RULES ARE FOR BALANCING
EMPLOYEES' INTERESTS AND PRIVACY
AND EMPLOYERS' INTERESTS IN
MANAGING THE WORKPLACE.
THAT LEAVES EMPLOYEES
VULNERABLE.
IN THAT THEY'RE NOT SURE WHETHER
THEY HAVE ANY RECOURSE IF THEY
ARE CONFRONTED WITH A WORKPLACE
PRACTICE OR POLICY THAT THEY
FEEL THREATENS THEIR PRIVACY
INTERESTS.
IT ALSO LEAVES EMPLOYERS UNSURE
OF THE SCOPE OF THEIR RIGHTS AND
OBLIGATIONS.

A new slide reads “What are the interests?”

Sherry continues WELL WHEN WE TALK ABOUT
WORKPLACE PRIVACY WE OFTEN TALK
ABOUT A BALANCING OF INTERESTS.
WHEN WE DEBATE WHETHER OR NOT A
POLICY OR PRACTICE THAT INTRUDES
ON WORK OR PRIVACY IS JUSTIFIED,
WHAT ARE THE INTERESTS AT STAKE?
FOR EMPLOYEES THERE IS A WISH TO
MAINTAIN SOME BOUNDARIES BETWEEN
THEIR PERSONAL LIVES AND THEIR
WORK LIVES
EMPLOYEES UNDERSTAND THAT WHEN
THEY COME TO WORK THERE IS SOME
DEGREE OF MONITORING.
THEY DON'T EXPECT THAT
MONITORING TO FOLLOW THEM HOME.
THERE'S A DESIRE TO BE TREATED
WITH DIGNITY IN THE WORKPLACE.
JUST AS THE RIGHT TO BE TREATED
EQUALLY REGARDLESS OF RACE OR
PLACE OF ORIGIN OR RELIGION IS
BASED ON RESPECT AND INHERENT
WORTH OF EACH INDIVIDUAL, SO IS
THE RIGHT TO BE FREE OF
UNWARRANTED INTRUSIONS ON
PERSONAL PRIVACY.
AND ALSO EMPLOYEES WANT TO BE
TREATED FAIRLY AND WITH DUE
PROCESS.
THEY WANT TO KNOW WHAT THE
GROUND RULES ARE.
FOR EMPLOYERS THE RATIONAL FOR
POLICIES THAT MAY INTRUDE ON
WORKER PRIVACY IS OFTEN BASED IN
SAFETY CONCERNS.
AN EMPLOYER MAY WANT AN EMPLOYEE
WHO HAS GONE THROUGH ALCOHOL
TREATMENT AND WHO IS RETURNING
TO A JOB OPERATING HEAVY
MACHINERY TO AGREE TO A PROGRAM
OF ALCOHOL TESTING.
IN SOME CASES IT'S AN ISSUE OF
PRODUCTIVITY.
AN EMPLOYER THAT OPERATES A CALL
CENTRE MAY WANT TO MONITOR
TELEPHONE CALLS MADE BY ITS
OPERATORS.
FOR SOME EMPLOYERS THERE MAY BE
ISSUES AROUND PROTECTION OF
PHYSICAL OR INTELLECTUAL
ASSETS.
AN EMPLOYER MAY WANT TO INSTALL
A VIDEO CAMERA I A SHIPPING AREA
WHERE THERE'S BEEN A HISTORY OF
THEFT.
OR PUT TRACKING SOFTWARE OF A
COMPUTER OF AN EMPLOYER
SUSPECTED OF BREACHING COMPANY
CONFIDENTIALITY.
AND FINALLY SOME EMPLOYERS MAY
BE CONCERNED ABOUT EMPLOYEES
DOWNLOADING COPYRIGHTED
MATERIAL, OR PORNOGRAPHY AND FOR
LIABILITY AS WELL AS OTHER
REASONS, THEY WANT TO
INVESTIGATE BY REVIEWING THEIR
EMPLOYEES ONLINE ACTIVITIES.
NOW, HAVING SET UP THIS
DICHOTOMY BETWEEN EMPLOYEE
INTERESTS ON THE ONE HAND AND
EMPLOYER ON THE OTHER, I DO WANT
TO MAKE A POINT THAT IT ISN'T
ALWAYS A DICHOTOMY.
THE CASES THAT MAY LEAD TO
LITIGATION TO LEGAL CHALLENGES
AND INTO THE NEWS ARE GENERALLY
ONES WHERE THERE'S A
DISAGREEMENT.
BUT IN MANY CASES EMPLOYEES AND
EMPLOYERS DO NOT DISAGREE
BECAUSE THEIR INTERESTS OVERLAP.
IT IS IN THE INTEREST OF
EMPLOYERS TO RESPECT THEIR
EMPLOYEES RIGHTS TO A PERSONAL
LIFE TO BE TREATED WITH DIGNITY,
WITH DUE PROCESS.
BECAUSE THEY KNOW THAT IN A
MODERN ECONOMY ONLY A STABLE,
LOYAL AND MOTIVATED WORKFORCE
WILL PROVIDE WITH THE MEANS TO
SURVIVE AND THRIVE.
IT IS ALSO IN THE INTERESTS OF
EMPLOYEES TO RECOGNIZE THE
OVERALL NEEDS OF MANAGING THE
WORKPLACE BECAUSE THEY ARE JUST
AS MUCH THREATENED BY BREACHES
OF COMPANY CONFIDENTIALITY, A
POOR SAFETY RECORD, OR A
WORKPLACE POISONED BY
PORNOGRAPHY AS THEIR EMPLOYER.
I'M JUST GOING TO DIGRESS FOR A
MOMENT TO MAKE A POINT ABOUT THE
ROLL OF TECHNOLOGY IN THE
WORKPLACE PRIVACY DEBATE.
BECAUSE WE ALL KNOW THAT
TECHNOLOGY HAS TRANSFORMED THE
WORKPLACE.
IN THE OLD WORKPLACE THERE WAS
MONITORING AND SURVEILLANCE BUT
IT WAS DONE BY FOREMEN, LEAD
HANDS, QUALITY CONTROL PEOPLE,
AND QUITE SIMPLY, THE BOSS.
TODAY THOSE POSITIONS STILL
EXIST BUT WE ALSO HAVE DOZENS OF
NEW WAYS TO MONITOR AND CONDUCT
SURVEILLANCE AND AVNER WILL BE
TALKING ABOUT SOME OF THOSE.
IN THE OLD WORKPLACE THE
INFORMATION THAT COULD BE
COLLECTED ABOUT WORKERS BY THEIR
BOSSES WAS LIMITED BY THE BOSS'S
ABILITY TO OBSERVE AND RECORD.
IN THE NEW WORK PLACE,
MONITORING AND SURVEILLANCE CAN
BE DONE IN WAYS THAT ARE MUCH
MORE DETAILED, PERVASIVE,
SURREPTITIOUS AND FRANKLY
INVASIVE.
IN THE OLD WORKPLACE EMPLOYERS
MAY LOSE COMPANY SECRETS IN A
BROWN ENVELOPE CARRYING A
STRATEGIC PLAN OUT THE DOOR.
IN THE NEW
WORKPLACE IT MAY TAKE A TWITCH
OF A FINGER TO SEND VOLUMES OF
DETAILED COMPANY INFORMATION TO
A COMPETITOR.
SO MY POINT IS
THAT TECHNOLOGY HAS BEEN AN
ENABLER OF GREATER SURVEILLANCE
AND MONITORING IN THE
WORKPLACE.
BUT AS WELL PROVIDES BY THE SAME
TOKEN THE JUSTIFICATION FOR IT.

A new slide reads “A patchwork of workplace privacy regulation.”

Sherry continues I'VE STATED THAT THERE'S NO ONE
CODE OR ONE LAW THAT WE CAN
POINT TO IN ONTARIO THAT GOVERNS
WORKPLACE PRIVACY.
INSTEAD THERE'S A PATCHWORK OF
RULES AND REGULATIONS SOME OF
MORE OR LESS RELEVANCE IN
ONTARIO.
STARTING AT THE VERY TOP OF
COURSE IS THE CHARTER OF RIGHTS
AND FREEDOMS WHICH IS THE
FUNDAMENTAL LAW OF THE LAND.
IT IS PART OF OUR CONSTITUTION
WHICH MEANS THAT IT PLACES
LIMITS ON ALL GOVERNMENTS ACROSS
THE COUNTRY IN THE LAWS THEY
ENACT, THE POLICIES THEY CREATE,
AND THE PRACTICES OF IT'S CIVIL
SERVANTS, OFFICIALS AND AGENTS.
AND THE RIGHT TO BE FREE OF
UNREASONABLE SEARCH AND SEIZURE
HAS BEEN UH FOUND TO BE A
PRIVACY RIGHT UNDER THE CHARTER
THAT APPLIES AS MUCH TO SEIZURE
OF INFORMATION AS TO SEIZURES
OF PHYSICAL THINGS.
IN ADDITION TO THE CHARTER, ALL
GOVERNMENTS IN CANADA HAVE
PRIVACY LAWS.
IN SOME JURISDICTION THESES
PRIVACY LAW COVER BOTH THE
PRIVATE AND THE PUBLIC SECTOR
EMPLOYEES.
AND I WILL SPEAKING ABOUT THOSE
IN A MINUTE.
ONTARIO IS UNIQUE IN THAT NONE
OF ITS PRIVACY LAWS COVER
PRIVATE OR PUBLIC SECTOR
EMPLOYEES.
IN ADDITION THERE ARE COLLECTIVE
AGREEMENTS.
ABOUT 31 percent OF THE WORKPLACE IN
CANADA IS UNIONIZED.
UNIONIZED WORKPLACES ARE COVERED
BY COLLECTIVE AGREEMENTS AND
THESE AGREEMENTS OFTEN SERVE TO
PROTECT THE WORKPLACE PRIVACY
INTERESTS OF EMPLOYEES COVERED
BY THEM.
COLLECTIVE AGREEMENTS AND THE
DECISIONS MADE BY ARBITRATORS
INTERPRETING THEM ARE OFTEN
REFERRED TO AS THE LAW OF THE
WORKPLACE.
NOW ALL OF THE PROVINCES AS WELL
AS THE FEDERAL SECTOR HAVE OTHER
LAWS THAT MAY NOT BE DIRECTED AT
WORKPLACE PRIVACY ISSUES BUT
CONTAIN PROVISIONS THAT EFFECT
WORKPLACE PRIVACY.

The slide pops up again, highlighting an item that reads “Other legislation: human rights, employment standards, workers compensation.”

Sherry continues ARE JUST
SOME THAT COME TO MIND.
THEN THERE IS THE COMMON LAW OR
JUDGE MADE LAW.
AND THIS IS EVER EVOLVING.
AND IN THE PAST FEW DECADES
WE'VE SEEN PARTIES TO LAWSUITS
RAISING PRIVACY ISSUES.
SOME OF THOSE COMING OUT OF AN
EMPLOYMENT CONTEXT.
AND FINALLY THERE'S BEEN A
BLOSSOMING OF INTEREST AMONG
HUMAN RESOURCES PROFESSIONALS
AND ISSUES OF WORKPLACE PRIVACY.
INDUSTRY ORGANIZATIONS AND
CONFERENCE PROVIDERS HAVE BEEN
OFFERING MORE AND MORE TRAINING,
EDUCATION AND DISCUSSION
OPPORTUNITIES TO PRIVATE
INDUSTRY AS WELL AS TO PUBLIC
SECTOR EMPLOYERS.
AVNER WILL SPEAK TO YOU ABOUT
WHETHER WE MAYBE EXPERIENCING
THE BEGINNING OF A SENSE OF
WORKPLACE PRIVACY AS A CORPORATE
SOCIAL RESPONSIBILITY ISSUE.
BUT WHAT I WANT TO SPEND THE
REST OF MY TIME TALKING ABOUT
ARE WHAT I SEE AS THE THREE MAIN
SOURCES OF WORKPLACE PRIVACY
PRINCIPLES.
AND THESE ARE UNDER FEDERAL
LEGISLATION.
THE ALBERTA AND B.C. PRIVATE
SECTOR PRIVACY LAW AND
COLLECTIVE AGREEMENTS.
The personal information protection and electronic documents act
IS A MOUTHFUL, AND WE USUALLY CALL IT
PIPEDA.
IT'S ROOTED IN AND INCORPORATES
THE PRINCIPLES SET OUT IN THE
NATIONAL STANDARD OF CANADA
ENTITLED “MODEL CODE FOR THE
PROTECTION OF PERSONAL
INFORMATION.”
IT'S A MODEL BASED ON THE IDEA
OF FAIR INFORMATION PRACTICES.
AND IT REGULATES PRIVACY THROUGH
ROLES ABOUT THE COLLECTION, USE
AND DISCLOSER OF PERSONAL
INFORMATION.
I SHOULD TELL YOU THAT PIPEDA IS
NOT PRIMARILY ABOUT WORKPLACE
PRIVACY AT ALL.
IT EXTENDS FAR BEYOND PROTECTING
EMPLOYEE PRIVACY INTERESTS, TO
THE RIGHTS OF CONSUMERS IN
GENERAL AND ANYONE HAVING
DEALINGS WITH A BUSINESS THAT
GIVES RISE TO AN EXCHANGE OF
PERSONAL INFORMATION.
THE CENTRAL THEME IN PIPEDA IS
THE REQUIREMENT THAT PERSONAL
INFORMATION BE COLLECTED, USED
AND DISCLOSED ONLY WITH THE
KNOWLEDGE AND CONSENT OF THE
PERSON TO WHOM IT RELATES.
WITH LIMITED EXCEPTIONS.
AND ALSO THAT THE COLLECTION,
USE AND DISCLOSER IS DONE ONLY
FOR PURPOSES THAT A REASONABLE
PERSON WOULD CONSIDER
APPROPRIATE.
I'VE BEEN TALKING HERE ABOUT
PERSONAL INFORMATION AND THE
COLLECTION, USE AND DISCLOSURE
OF PERSONAL INFORMATION.
UNLESS YOU THINK WHAT WE'RE
TALKING ABOUT IS THE COLLECTION
OF PERSONAL INFORMATION THROUGH
SOMEBODY WITH A CLIP BOARD
STANDING NEXT TO YOU, ASKING YOU
QUESTIONS ABOUT YOUR PERSONAL
LIFE, IT'S IMPORTANT TO KNOW
THAT PERSONAL INFORMATION CAN BE
COLLECTED IN A NUMBER OF
DIFFERENT WAYS.
A VIDEO CAMERA COLLECTS PERSONAL
INFORMATION ABOUT YOU.
A MEDICAL CERTIFICATE CONVEYS
PERSONAL INFORMATION.
SOFTWARE THAT TRACKS COMPUTER
ACTIVITY COLLECTS PERSONAL
INFORMATION.
AND THE USE OF A BIOMETRIC
HANDSCAN SYSTEM STARTS WITH THE
COLLECTION OF YOUR UNIQUE
HANDPRINT.
SO WHO DOES PIPEDA APPLY TO?
WELL AS YOU KNOW, CANADA'S
CONSTITUTION DIVIDES POWERS
BETWEEN THE FEDERAL GOVERNMENT
AND THE PROVINCIAL GOVERNMENTS.
THE FEDERAL GOVERNMENT FOR
INSTANCE IS RESPONSIBLE FOR
REGULATING SUCH INDUSTRIES AS
BANKS, TRAINS,
TELECOMMUNICATIONS, SHIPPING AND
BROADCASTING.
THE PROVINCIAL GOVERNMENT
REGULATES MANUFACTURING, THE
SERVICE SECTOR AND THE RETAIL
SECTOR AMONGST OTHERS.
LABOUR RELATIONS AND EMPLOYMENT
RIGHTS FOLLOW THIS
CONSTITUTIONAL DIVISION OF
POWERS, SO THAT PIPEDA AS
FEDERAL LEGISLATION APPLIES TO
EMPLOYEES OF FEDERALLY REGULATED
INDUSTRIES.
THERE ARE ABOUT A MILLION OF
THOSE INDIVIDUALS EMPLOYED IN
THE FEDERALLY REGULATED
INDUSTRIES IN CANADA GIVE OR
TAKE.
THE SECOND IMPORTANT SOURCE
OF WORK PLACE PRIVACY
PRINCIPLES HAVE BEEN DECISIONS
UNDER PRIVATE SECTOR PROVINCIAL
LEGISLATION.
ALTHOUGH QUEBEC HAS PRIVATE
SECTOR PRIVACY LEGISLATION
COVERING WORKPLACE PRIVACY, AS
WELL AS ITS OWN CHARTER OF HUMAN
RIGHTS AND FREEDOMS, I'LL FOCUS
MOSTLY ON ALBERTA AND B.C. LAWS
BECAUSE THEY ARE MORE LIKELY TO
HAVE INFLUENCE IN ONTARIO.
IN ALBERTA AND B.C., WORKPLACE
PRIVACY IS REGULATED THROUGH A
MODIFIED FAIR INFORMATION
PRACTICE MODEL.
AND I SAY MODIFIED BECAUSE THE
EMPHASIS ON CONSENT WHICH IS KEY
TO PIPEDA HAS BEEN REMOVED.
INSTEAD BOTH OF THESE PROVINCES
TREAT WORKPLACE PRIVACY AS AN
ISSUE OF REASONABLENESS.
IN ALBERT AND B.C. THE RULE IS
THAT personal information about employees may be collected, used or disclosed without consent if it is reasonably required for the purposes of establishing, managing or terminating the employment relationship.
THE THIRD
IMPORTANT SOURCE OF WORKPLACE
PRIVACY PRINCIPLES ARE CONTAINED
IN THE DECISIONS OF ARBITRATORS
MADE UNDER COLLECTIVE
AGREEMENTS.
THESE DECISIONS CONTAIN A WEALTH
OF IDEAS AND PRIVACY
COMMISSIONERS HAVE ALSO BEEN
DRAWING FROM THOSE.
ALTHOUGH THEY ARE INTENDED TO
RESOLVE THE DISPUTE BEFORE THEM
IN THE CONTEXT OF A COLLECTIVE
AGREEMENT APPLYING TO A
PARTICULAR WORKPLACE THEIR
INFLUENCE THEREFORE EXTENDS TO
BEYOND THE WORKPLACE OR EVEN
OTHER ARBITRATORS APPLYING
COLLECTIVE AGREEMENTS BUT TO THE
GENERAL LAW.
NOW ALTHOUGH THE THREE MAIN
SOURCES OF WORKPLACE PRIVACY
PRINCIPLES THAT I'VE SPOKEN TO
YOU ABOUT HAVE DIFFERENT
FOUNDATIONS IT'S INTERESTING
THAT SIMILAR THEMES DO EMERGE
FROM ALL OF THEM.
AND A RECENT DECISION OF THE
FEDERAL PRIVACY COMMISSIONER
GIVES US A GOOD JUMPING OFF
POINT TO CONSIDER THOSE THEMES.
IN A RECENT CASE SOME EMPLOYEES
OF A TELECOMMUNICATIONS COMPANY
COMPLAINED ABOUT THEIR
EMPLOYER'S INSTALLATION OF GPS
SYSTEMS IN THEIR CARS.
SAYING THAT THEY HAD NOT
CONSENTED TO THIS COLLECTION OF
THEIR PERSONAL INFORMATION.
AFTER INVESTIGATION THE PRIVACY
COMMISSIONER DECIDED THAT THE
COMPANY HAD JUSTIFIED ITS USE OF
THE GPS SYSTEMS FOR... CONTROL
PURPOSES, DISPATCH PURPOSES AND
LIMITED EMPLOYEE MANAGEMENT
PURPOSES.
SHE ALSO DECIDED THAT THE
EMPLOYEES HAD GIVEN THEIR
IMPLIED CONSENT FOR THE
COLLECTION AND USE OF THEIR
INFORMATION FOR THESE PURPOSES.
SHE DID EXPRESS SOME CONCERNS
FOR THE POTENTIAL OF WHAT SHE
CALLED FUNCTION CREEP WHICH IS
TO SAY THE USE OF A GADGET TO DO
SOMETHING BEYOND WHAT IT WAS
ORIGINALLY INSTALLED FOR.
IN THAT CASE THE COMPANY HAD
PLENTY OF EVIDENCE AND IT WAS
ABLE TO ANSWER THE FOUR
QUESTIONS THAT THE PRIVACY
COMMISSIONER PUT TO IT, WHICH
WERE...
Could it show that the GPS was necessary to meet a legitimate business need?
Did the company show it was effective to meet that need?
Was the loss of privacy proportionate to the benefit gained through using the GPS?
Were there any less privacy-invasive means of serving the same business goals?
I'M GOING TO
LOOK AT THESE FOUR QUESTIONS IN TURN.
THE FIRST, WHAT ARE THE
EMPLOYER'S INTEREST AT STAKE?
AND IS THE PRIVACY INVASIVE
POLICY OR PRACTICE NECESSARY TO
MEET THOSE INTERESTS?
WELL NO ONE DENIES THE
LEGITIMACY OF THE BUSINESS
INTEREST THAT I IDENTIFIED
EARLIER.
BUT PRIVACY COMMISSIONERS AND
ARBITRATORS HAVE LOOKED TO
EMPLOYERS TO HAVE THE
INFORMATION AVAILABLE TO THEM TO
JUSTIFY THEIR USE OF THESE
TECHNIQUES TO JUSTIFY THEIR OWN
INTERESTS TO PROVE THAT IT IS A
CONCERN IN THAT PARTICULAR
WORKPLACE.
FOR INSTANCE
THERE HAVE BEEN A NUMBER OF
ARBITRATION DECISIONS IN WHICH
THE USE OF SURREPTITIOUSLY
OBTAINED VIDEO SURVEILLANCE
EVIDENCE WAS CHALLENGED.
AND IN THOSE
CASES THE EMPLOYER MUST USUALLY
SHOW THAT IT WAS REASONABLY
NECESSARY TO RESORT TO SUCH A
PRIVACY INVASIVE WAY OF
GATHERING EVIDENCE AS WELL AS
THAT IT WAS CONDUCTED IN A
REASONABLE MEASURED WAY.
AND IN SOME CASES THE EMPLOYER
WAS NOT PERMITTED TO USE THAT
EVIDENCE IN THE ARBITRATION.
THE SECOND QUESTION, THE
EFFECTIVENESS OF THE TECHNIQUE
TO MEET A BUSINESS OBJECTIVE.
I'LL GIVE YOU AN EXAMPLE.
IN ONE COMPLAINT TO THE ALBERTA
PRIVACY COMMISSIONER.
A CANDIDATE FOR AN
ADMINISTRATIVE JOB WAS ASKED TO
AGREE TO A CREDIT CHECK.
ALTHOUGH THE COMMISSIONER
THOUGHT IT WAS REASONABLE FOR
THE COMPANY TO WANT TO ASSESS
HER ABILITY TO MANAGE PETTY
CASH, IT DID NOT THINK THAT
OBTAINING THE KIND OF
INFORMATION THAT WOULD BE IN A
CREDIT CHECK WAS A VERY
EFFECTIVE WAY OF MEASURING THAT.
AND THAT WAS PARTICULARLY SO
GIVEN THAT THERE WERE OTHER WAYS
AVAILABLE THAT WERE LESS
INTRUSIVE.
SUCH AS PHONING A LIST OF PAST
EMPLOYERS FOR WHOM THAT EMPLOYEE
HAD EXERCISED DUTIES IN RELATION
TO CASH MANAGEMENT.
SO THE COMMISSIONER DECIDED
THAT THE COLLECTION OF CREDIT
INFORMATION WAS NOT REASONABLY
REQUIRED FOR PURPOSES OF
MANAGING THAT WORKPLACE
IN ANOTHER EXAMPLE, A MEAT
PROCESSING PLANT SET UP CAMERAS
THROUGHOUT ITS PLANT INCLUDING
IN THE EVISCERATION ROOM.
THE COMPANY CLAIMED THAT THE
CAMERAS HELPED TO MONITOR
HYGIENE SAFETY AND PRODUCT SAFETY.
HOWEVER THERE WAS SIMPLY NO
EVIDENCE THAT THE CAMERAS WERE
USEFUL IN MEETING THOSE PURPOSES
PARTICULARLY GIVEN THE DEGREE OF
HANDS ON INSPECTION AND
MONITORING BY BOTH FOOD
INSPECTION AGENCY PERSONNEL AND
THE COMPANY'S OWN SUPERVISORS.
SO THE PRIVACY COMMISSIONER
FOUND THE USE OF THOSE CAMERAS
INCONSISTENT WITH THE PIPEDA
RIGHTS.
THE THIRD QUESTION IS WHETHER
THE BENEFIT OUTWEIGHS THE
PRIVACY INVESTIGATION.
AND HERE THE ISSUE IS THE UH
DEGREE OF THE PRIVACY INVASION
MEASURED AGAINST THE BENEFIT TO
BE GAINED.
A GOOD EXAMPLE OF THIS IN THE
AREA OF DRUG AND ALCOHOL
TESTING.
THERE HAVE BEEN MANY ARBITRATION
DECISIONS THAT HAVE LOOKED AT
WHETHER DRUG AND ALCOHOL TESTING
IS JUSTIFIED WITHIN A WORKPLACE.
AND IT HAS BEEN ACKNOWLEDGED
THAT DRUG AND ALCOHOL TESTS ARE
HIGHLY INTRUSIVE MEASURES
BECAUSE THEY INVOLVE THE TAKING
OF BODILY SAMPLES.
BECAUSE IT IS SO INTRUSIVE,
ARBITRATORS HAVE BEEN VERY
CAUTIOUS ABOUT APPROVING OF IT.
IN GENERAL, RANDOM DRUG AND
ALCOHOL TESTS ARE NOT PERMITTED
BUT A PROGRAM OF TESTING FOR
EMPLOYEES RETURNING FROM REHAB
IS JUSTIFIED.
OR TESTS FOLLOWING AN ACCIDENT
WHERE THERE IS SOME CAUSE TO
BELIEVE THAT DRUG OR ALCOHOL
IMPAIRMENT WAS A FACTOR.
IN THESE CASES IT IS RECOGNIZED
THAT EMPLOYER'S INTERESTS ARE
QUITE SIGNIFICANT.
PARTICULARLY IN SAFETY SENSITIVE
WORKPLACES.
AND SO WHERE THERE IS REASONABLE
CAUSE THAT JUSTIFIES THE SERIOUS
INTRUSION ON PRIVACY THAT COMES
WITH DRUG AND ALCOHOL TESTS.
BUT IN THE ABSENCE OF THOSE THE
BENEFIT OF HAVING RANDOM
WORKPLACE WIDE UNANNOUNCED
TESTING OF EMPLOYEES ABOUT WHOM
THERE IS NO REASON TO BELIEVE
DRUG OR ALCOHOL USE IS AT PLAY
IS AN UNJUSTIFIED INTRUSION.
CONTRAST THIS WITH ANOTHER CASE
INVOLVING A SUPERMARKET IN
ALBERTA THAT WANTED TO INTRODUCE
A HAND SCANNING SYSTEM FOR
PAYROLL AND ATTENDANCE.
AND IN THAT CASE THE ARBITRATOR
DECIDED THAT THE PRIVACY
INVASION WAS AT THE LOW END OF
THE SCALE.
HE FOUND THE NEW SYSTEM TO BE A
REASONABLE CHOICE TO MEET THE
EMPLOYER'S NEEDS FOR AN
EFFICIENT PAYROLL AND ATTENDANCE
SYSTEM.
SIMILARLY THE FEDERAL PRIVACY
COMMISSIONER FOUND THAT A VOICE
PRINT SYSTEM USED TO ALLOW
EMPLOYEES OF A
TELECOMMUNICATIONS COMPANY TO
REMOTELY ACCESS THE COMPANY'S
SYSTEMS WAS NOT UNDULY INVASIVE
GIVEN ITS BENEFITS.
THE FINAL FACTOR IS WHETHER
THERE ARE LESS PRIVACY INVASIVE
WAYS TO ACHIEVE THE SAME
LEGITIMATE BUSINESS PURPOSES.
AN EXAMPLE OF THAT WAS THE
CREDIT CHECK CASE FROM ALBERTA
THAT I SPOKE ABOUT.
IN ONTARIO AN ARBITRATOR FOUND
THAT A FINGER SCAN SYSTEM FOR
PAYROLL AND TIME KEEPING WAS NO
JUSTIFIED BECAUSE THE EVIDENCE
BEFORE HER SHOWED THAT THERE
WERE OTHER LESS INVASIVE WAYS TO
MEET THE COMPANY'S PURPOSES.
AND IN ANOTHER CASE THE FEDERAL
PRIVACY COMMISSIONER DID NOT
APPROVE OF THE USE OF WEB CAM AS
POINTED AT SALES AND MARKETING
AND TECH SUPPORT STAFF TO
MONITOR PRODUCTIVITY.
IN PART SHE SAID THAT THERE WERE
OTHER EQUALLY COST EFFECTIVE AND
LESS PRIVACY INVASIVE WAYS OF
ACHIEVING THOSE PURPOSES.
SO IN SOME, WHEN ARBITRATORS AND
PRIVACY COMMISSIONERS HAVE
LOOKED AT WHETHER A WORKPLACE
PRACTICE OR POLICY IS CONSISTENT
WITH EMPLOYEE PRIVACY, THEY'VE
LOOKED AT THE BUSINESS INTEREST
AT STAKE, THE EFFECTIVENESS OF
THE PRACTICE IN MEETING THAT
INTEREST, THE LOSS OF PRIVACY
PROPORTIONAL TO THE BENEFIT
GAINED AND WHETHER THERE ARE
LESS PRIVACY INVASIVE WAYS OF
PROTECTING THOSE SAME INTERESTS.
I'VE NECESSARILY LEFT OUT SOME
NUANCES HERE.
NOT ALL PRIVACY COMMISSIONERS OR
ARBITRATORS APPLY THE FACTORS AS
I'VE DESCRIBED THEM EXACTLY AND
SOMETIMES THE FACTORS ARE
COLLAPSED.
BUT I WANTED TO GIVE YOU A
FLAVOUR OF WHAT THE ANALYSIS IS
THAT IS APPLIED HERE.
JUST WANT TO END WITH A FEW
SHORT WORDS ABOUT SAFEGUARDING
EMPLOYEE INFORMATION.
ONE OF THE FAIR INFORMATION
PRACTICES IS THE DUTY TO
SAFEGUARD PERSONAL INFORMATION.
AND THIS HAS MADE ITS WAY INTO
PRIVACY LEGISLATION IN ALL
CANADIAN JURISDICTIONS.
I'M SURE THAT IF YOU ARE A
BUSINESS, YOU THINK ABOUT THIS
IN RELATION TO YOUR CUSTOMERS.
I SUGGEST THAT IT'S ALSO
IMPORTANT IN TERMS OF YOUR
EMPLOYEES.
IF YOU'RE A BUSINESS OR ANY KIND
OF EMPLOYER YOU DON'T WANT TO
FACE FIND YOURSELF IN THE NEWS
BECAUSE OF A MAJOR PRIVACY
BREACH.
AND YOU DO NOT WANT TO BE
RESPONSIBLE FOR THE POSSIBILITY
OF IDENTITY THIEVES USING
PERSONAL INFORMATION THAT YOU
DIDN'T PROPERLY PROTECT.
WHETHER IT BE YOUR CUSTOMERS OR
EMPLOYEES.
I SUGGEST THAT THIS SHOULD
PROVIDE AN INCENTIVE TO ALL
EMPLOYERS TO BE VERY RIGOROUS IN
ASSESSING THEIR NEED TO COLLECT
LARGE AMOUNTS OF PERSONAL
INFORMATION FROM THEIR
EMPLOYEES, BECAUSE REMEMBER ONCE
YOU HAVE IT, YOU HAVE TO TAKE
CARE OF IT.
THANKS VERY MUCH FOR HAVING ME,
I UH, INVITE YOU TO VISIT OUR
WEBSITE, WE DO HAVE A LARGE
NUMBER OF PUBLICATIONS AND
RESOURCES AVAILABLE AND I LOOK
FORWARD TO HEARING FROM AVNER.

The end slide reads “How to contact us. Information and Privacy Commissioner Ontario. 2 Bloor Street East, Suite 1400, Toronto, Ontario, M5S 2V1.
Phone: 416-326-3333. Web: www.ipc.on.ca”

(Applause)

Now Avner Levin appears at the podium addressing the audience. He’s in his late forties, clean-shaven, with short wavy black hair. He’s wearing a dark gray suit, white shirt, and pin dotted blue tie.

He says SO WE'VE BEEN
LOOKING AT WORKPLACE PRIVACY FOR
UH, TWO YEARS NOW I SHOULD SAY
WE BECAUSE I'M JUST PART OF A
TEAM, MY OTHER COLLEAGUES THAT
ARE NOT HERE TODAY ARE...
NICHOLSON WHO COORDINATES THE
INTERNATIONAL BUSINESS AREA.
UM, AT THE FACULTY OF BUSINESS.
MARY FOSTER WHO IS THE CHAIR OF
THE DEPARTMENT OF MARKETING AT
THE FACULTY AND TONY HERNANDEZ
WHO FOLLOWED KEN JONES AS THE UH
DIRECTOR OF THE CENTRE AND STUDY
OF COMMERCIAL ACTIVITY.
AND WHAT WE ACTUALLY DID AS A
PROJECT IS WE WENT AND CONTACTED
SEVERAL EMPLOYERS AND CONDUCTED
UM INTERVIEWS WITH THEM AND
ASKED THEM SEVERAL QUESTIONS AND
SEVERAL THEMES.
WE ASKED THEM FIRST OF ALL, WHAT
ARE YOU DOING IN TERMS OF
MONITORING AND SURVEILLANCE IN
THE WORKPLACE?
WHAT ARE YOUR PRACTICES?
WHAT ARE YOUR POLICIES AROUND
THESE PRACTICES TO THE EXTENT
THAT YOU HAVE SUCH POLICIES.

A caption appears on screen. It reads "Avner Levin. School of Business Management, Ryerson University. Arts and Letters Club, Toronto. February 15, 2007."

Avner continues AND ALSO WHAT
ARE YOUR THOUGHTS ON THE LEGAL
BASIS, THE ETHICAL BASIS FOR
YOUR ACTIVITIES ON THE ONE HAND,
OR FOR ANY KIND OF EMPLOYEE
PRIVACY THAT UM YOUR EMPLOYEES
MIGHT HAVE ON THE OTHER.

A table pops up titled “Sample, 3 percent of employees.”

Avner continues UM, HERE ARE
SOME DETAILS ABOUT THE PEOPLE
THAT WE DISCUSSED, UM... WE OF
COURSE FOCUSSED ON PEOPLE ON
EMPLOYERS THAT WERE OF INTEREST
TO THE FEDERAL PRIVACY
COMMISSIONER THAT ARE UNDER
FEDERAL JURISDICTION.
SO WE TALKED TO EMPLOYERS IN THE
FINANCIAL SERVICES, THE BANKING
SECTOR, THE TELECOMMUNICATIONS,
UM, BUT WE ALSO UM, SPOKE UM
WITH RETAILERS THAT ARE NOT
DIRECTLY FOR WORKPLACE PURPOSES
UNDER THE FEDERAL PRIVACY
COMMISSIONERS MANDATE.
WE TALKED TO LARGE NATIONAL
RETAILERS, WE TALKED TO
HOSPITALITY CHAINS.
AND WE GOT SOME VERY LARGE
EMPLOYERS AS PART OF OUR
SAMPLES.
BUT WE ALSO WERE VERY INTERESTED
IN WHAT SMALLER EMPLOYERS DO IN
TERMS OF THE SIZE OF THE
EMPLOYERS THAT OPERATE WITHIN
THE PROVINCE OF ONTARIO FOR
EXAMPLE EXCLUSIVELY, AND ALSO
EMPLOYER WITHIN THE PUBLIC
SECTOR.
WHICH IS AS SHERRY SAID HAS BEEN
A BIT OF AN ISSUE IN ONTARIO
SINCE 1995.
WE WANTED TO SEE WHAT'S
HAPPENING WITH RESPECT TO
PUBLIC SECTOR EMPLOYERS.
SO WE'VE GOT A MIX OF UNIONIZED
AND NON UNIONIZED AND WE FEEL WE
HAD A VERY OVERALL GOOD
REPRESENTATION IN THAT SENSE.
UM WHAT WE WEREN'T SO SUCCESSFUL
WAS IN ACTUALLY GETTING PEOPLE
THAT WERE HAVING A NEGATIVE OR A
BAD DAY IN THE PRESS SO TO SPEAK
TO TALK TO US ABOUT THEIR
EXPERIENCE AROUND WORKPLACE
PRIVACY.

A new table pops up with the title “Refusals, 2 out of 3.”

Avner continues SO TWO OUT OF THE THREE PEOPLE
THAT WE CONTACTED IN TERMS OF
EMPLOYERS REALLY SAID NO TO US
FOR A VARIETY OF REASONS AND
THE REASONS ARE LISTED THERE.
WE APPROACHED EVERYBODY, WE
ESPECIALLY THOUGHT IT WOULD BE A
GOOD OPPORTUNITY FOR PEOPLE THAT
HAD BEEN EXPERIENCING SOME BAD
PRESS, UM TO GIVE SOME KIND OF A
POSITIVE SPIN ON WHAT THEY WERE
DOING.
TURNED OUT THAT THEY WERE NOT
INTERESTED IN THE EXERCISE FROM
THAT PERSPECTIVE.
BUT IT'S A POINT TO KEEP IN
MIND YOU KNOW FOR THE SECOND
PART OF MY TALK THAT THE PEOPLE
THAT WERE WILLING TO TALK TO US
WERE PEOPLE THAT WERE HAPPY TO
TALK TO US AND PEOPLE THAT WERE
FAIRLY CONFIDENT OF WHAT THEY
WERE DOING IN TERMS OF BEING
GOOD PRACTICES AND SOUND
POLICIES AND REALLY VIEWED
THEMSELVES AS LEADERS IN THE
FIELD OF UM YOU KNOW PRIVACY IN
THE WORKPLACE.
HERE IS WHAT UM, THEY REPORTED
TO BE DOING.
THIS IS THEIR REPORTS.

A new slide reads “Reported methods of surveillance.
Closed Circuit Television (CCTV), Access Control Systems (ACS), Digital Point-of-Sale (DPoS), Supply Chain Management Technologies (GPS, RFID), Telephone Recordings (Analog, VoIP), Personal Computer Monitoring )(Internet, email, spyware, keystroke), Employee records.”

Avner says THOSE FOR
EXAMPLE ARE MAGNETIC SWIPE CARDS
THAT PEOPLE WOULD SWIPE WITH
PERHAPS OR WITHOUT BIOMETRIC
IDENTIFIERS.
USING DIGITAL POINT OF SALE SUCH
AS DIGITAL CASH REGISTER TO KEEP
TRACK OF WHAT AN EMPLOYEE IS
DOING AND YOU KNOW THERE ARE
RETAILERS THAT NOW HAVE THOSE
SYSTEMS LINKED SO AN EMPLOYEE
COMES IN, THUMB PRINT ON THE
REGISTER, THAT'S IDENTIFIES
UNIQUELY WHO IS IN CONTROL OVER
THAT REGISTER FOR THE ENTIRE
SHIFT.
VARIOUS SUPPLY CHAIN MANAGEMENT
TECHNOLOGIES.
THE GLOBAL POSITIONING SYSTEMS,
UM, THAT WERE MENTIONED, RADIO
FREQUENCY IDENTIFIERS, THAT
SHERRY DREAMT ABOUT BUT WE SAW
WELL, RELATIVE TO THE DATE OF
WHEN WE WERE CONDUCTING THIS WAS
LAST YEAR, THEY WEREN'T ACTUALLY
BEING ROLLED OUT THAT MUCH TO
THAT EXTENT BY EMPLOYER.
TELEPHONE RECORDINGS, BOTH
ANALOGUE AND THROUGH VOICE OR
INTERNET PROTOCOL.
VARIOUS FORMS OF MONITORING THE
PERSONAL COMPUTER, THROUGH THE
INTERNET LOGS, THE e-mail LOGS,
UM, SPYWARE AND EVEN SOME PEOPLE
REFER TO KEYSTROKE MONITORING.
ALTHOUGH EVERYONE SAID WELL WE
DON'T ACTUALLY DO THAT BUT WE
HEARD THAT SOMEBODY ELSE DOES
THAT.
AND OF COURSE FROM THE
PERSPECTIVE OF EMPLOYEE RECORDS,
AND THAT'S ALWAYS BEEN THE
TRADITIONAL WAY OF GATHERING
INFORMATION ABOUT AN EMPLOYEE
AND THAT HAS NOT GONE AWAY.
SO THIS IS WHAT THE LEADERS THAT
ARE PROACTIVE IN THE FIELD ARE
DOING.
HERE ARE THE PURPOSES FOR WHICH
THEY ARE DOING THEM.
SAFETY AND SECURITY A MAIN
CONCERN, THEFT BY EMPLOYEES
ANOTHER ONE.
Conduct which is in violation of human rights legislation SUCH AS
SEXUAL HARASSMENT OR OTHER
CONDUCT THAT'S PERHAPS
OFFENSIVE.
MAINTAINING THEIR VEHICLE fleets... THE
RECENT GPS DECISION,
INFORMATION SYSTEMS MANAGEMENT.
KNOWLEDGE MANAGEMENT REFERS TO
TRADE SECRETS, CONTROL OVER THE
INFORMATION THAT MAY UM, SEND
OUT.
TRAINING AND DEVELOPMENT
PURPOSES.
AND LAST BUT NOT LEAST,
PRODUCTIVITY.
SO WHAT WE TRY TO DO IS WE TRY
TO GROUP THESE IN TERMS OF THEIR
PURPOSES AND METHODS.
AND WE CAME UP WITH A LITTLE BIT
OF A CHART THAT SORT OF
IDENTIFIES EACH TECHNOLOGY WITH
RESPECT TO THE UM, PRIVACY,
PRIMARY PURPOSE IT SERVES.
SO YOU'VE GOT THE CAMERAS AND
THE CARD SWIPES ARE REALLY IN
PLACE FOR SAFETY AND SECURITY
MAINLY, YOU'VE GOT ALL VARIOUS
TECHNOLOGIES THAT HELP THE
EMPLOYER MAINTAIN THEIR
RESOURCES SUCH AS THE GPS, THE
PERSONAL COMPUTER MONITORING THE
PERSONNEL FILES, THE DIGITAL
CASH REGISTERS AND YOU'VE GOT
THE VARIOUS TECHNOLOGIES THAT
ARE USED PRIMARILY FOR YOU KNOW
PURPOSES OF EMPLOYEE MISCONDUCT,
UM, TELEPHONE RECORDINGS, THE
DIGITAL CASH REGISTERS AND
MONITORING OF THE PC AS WELL.
PRODUCTIVITY HAS REALLY SORT OF
LEFT US A LITTLE BIT OF AN
ORPHANED CHILD IN TERMS THAT NO
EMPLOYER THAT WE TALKED TO
REALLY OWNED UP TO THE FACT THAT
THE PRIMARY PURPOSE FOR WHICH
THEY'RE PROPOSING OR INTRODUCING
A TECHNOLOGY OR A FORM OF
MONITORING WITH SURVEILLANCE IS
REALLY TO MONITOR THE
PRODUCTIVITY.
PEOPLE UM WERE A LITTLE BIT
RELUCTANT TO ADMIT TO THAT AND
IT TIES IN I THINK TO WHAT WE
FOUND IN GENERAL AS A RESULT OF
ALL OF THESE FACTS THAT THEY
PROVIDED TO US.
HERE'S WHAT WE FOUND.
WE FOUND THAT EMPLOYERS VIEW
THIS WHOLE ISSUE AS
NON-EXISTING.
UM THAT WAS A BIT OF A
SURPRISING FINDING.
BUT THAT'S WHAT WE FOUND.
THEY SAID WELL NOBODY'S
COMPLAINING TO US.

A new slide reads “Findings. Workplace privacy is ‘under the radar.’”

Avner continues THEY DIDN'T HAVE ANY POLICIES IN
PLACE, UM, THEY DIDN'T HAVE ANY
POLICIES THAT WERE ADDRESSED TO
THEIR EMPLOYEES, THEY DIDN'T
HAVE ANY POLICIES THAT WERE
ADDRESSED INTERNALLY TO THE
VARIOUS DEPARTMENTS.
UM, WHY THAT IS, IT'S NOT CLEAR
TO US, WE'RE HOPING TO DO SOME
FOLLOW UP RESEARCH THIS YEAR AND
TALK TO THE EMPLOYEES SIDE UM,
AND SEE WHETHER THAT IS INDEED
THE CASE THAT EMPLOYEES ARE NOT
CONCERNED AND THIS IS NOT AN
ISSUE BUT THIS IS CERTAINLY
SOMETHING THAT THE EMPLOYER SAID
QUITE STRONGLY AND REMEMBER
THESE ARE EMPLOYERS THAT WERE
HAPPY TO TALK TO US.
YOU KNOW THE LEADERS IN THE
FIELD.
WE FOUND THAT EMPLOYERS HAVE
SEVERAL DIFFERENT IDEAS OF WHAT
IT IS THAT IS THE BASIS OF THEIR
ACTIVITIES.
ONE THAT SHERRY TOUCHED UPON THE
IDEA THAT YOU KNOW WHAT YOU ARE
DOING IS REASONABLE OR FROM THE
OTHER PERSPECTIVE THAT THE
EMPLOYEE SHOULD HAVE REASONABLE
EXPECTATIONS, BUT ALSO THERE'S
AN IDEA OUT THERE THAT EMPLOYEES
ENJOY A MEASURE OF DIGNITY AND
THAT YOU COULD TALK ABOUT AN
EMPLOYEE'S PRIVATE LIFE THAT IS
KEPT INTACT AND SEPARATE FROM
WHATEVER IT IS THAT THEY'RE
DOING AT THE WORLD PLACE.
AND THE THIRD THAT WAS MOST
INTERESTING WAS THAT EMPLOYERS
SAID THAT ALL OF THIS THE
EMPLOYERS THAT WE TALKED TO,
ALL OF THIS MONITORING AND
SURVEILLANCE ACTIVITIES THAT
UNDERMINES THE TRUST THAT THEY
SEE AS THE FOUNDATION OF THEIR
RELATIONSHIP WITH THEIR
EMPLOYEES.
TH SAID THE MORE WE DO IT, AND
SOME PEOPLE SAY YOU KNOW WE'VE
DONE IT IN THE PAST, WE HAVEN'T
BEEN DOING IT NOW, WHY BECAUSE
IT REALLY UNDERMINES THE TRUST
THAT WE THINK IS IMPORTANT TO
HAVE WITH OUR EMPLOYEES.
SO THESE ARE AGAIN AS I SAID,
UM, THE LEADERS.
AND THE LAST POINT THERE IS
NOBODY WANTED THE GOVERNMENT TO
ANYTHING ABOUT THE SITUATION,
NEITHER DID THEY WANT THE
RESPECTIVE INDUSTRIES TO DO
ANYTHING ABOUT THE SITUATION.
WE ASKED THEM, OH YOU BELONG TO
HOSPITALITY INDUSTRY, OR RETAIL,
YOU'VE GOT A COUNSEL, HAVE THEY
BEING DOING ANY WORK ON IT?
SO, NO, LET'S KEEP IT THAT WAY,
WE'RE VERY HAPPY THE WAY THINGS
ARE.
AND SO THAT WAS INTERESTING.
NOW UM, YOU KNOW THERE ARE MANY
IMPLICATIONS TO THIS UM, WORK,
ONE THAT I WANT TO MENTION
BECAUSE IT'S A TIMELY AND BEFORE
CONNECTED TO WHAT SHERRY HAS
BEEN DISCUSSING AND ALSO IN THE
NEWS TODAY IF YOU OPENED UP THE
GLOBE YOU SAW THE LATEST SCANDAL
OVER IN HALLIBURTON WITH RESPECT
TO HIDDEN CAMERAS AND THE
WORKPLACE ON FIREFIGHTERS AND
SOME FIREFIGHTERS WERE CAUGHT.
THEY WERE DISMISSED BECAUSE OF
THEIR, THEY WERE CAUGHT ON TAPE
DRINKING.
AND SO I THINK
THE ONE IMPLICATION THAT COMES
OUT OF THIS FINDING IS THAT WHEN
YOU INSERT OR INTRODUCE A
MEASURE INTO THE WORKPLACE YOU
HAVE TO HAVE A PURPOSE TO WHICH
IT IS CONNECTED.
THESE HIDDEN
CAMERAS, THE STATED PURPOSE WITH
THEM WAS TO PREVENT VANDALISM,
AND THEFT.
HOW THE COUNSEL THERE AND THE
FIRE CHIEF GOT TO PREVENTING
VANDALISM AND THEFT TO
DISMISSING EMPLOYEES BECAUSE
THEY WERE DRINKING WHILE THEY
WERE, WHICH IS IN ITSELF A
LEGITIMATE REASON WHY THEY
SHOULD BE DISMISSED OR AT LEAST
DISCIPLINED IS NOT CLEAR BUT IT
SPEAKS A LOT ABOUT WHAT THE
LATEST PRINCIPLES THAT THE
FEDERAL PRIVACY COMMISSIONER SET
OUT AND WHAT SHERRY HAS BEEN
DISCUSSING ABOUT FUNCTION CREEP
AND TECHNOLOGY BEING INTRODUCED
FOR ONE REASON AND THEN USED FOR
ANOTHER.
BUT REALLY WHAT I WANT TO TALK
ABOUT IS MORE IN THE FEW MINUTES
I HAVE LEFT IS ABOUT THE ETHICAL
IMPLICATIONS OF ALL OF THIS.
IN LIGHT OF THE STATE OF THE
LEGISLATION ACROSS CANADA AND
PARTICULARLY HERE IN ONTARIO, IN
LIGHT OF THE FACT THAT WE HAVE A
PATCHWORK QUILT AND IN LIGHT OF
THE FACT THAT REALLY IT IS VERY
DIFFICULT FOR AN INDIVIDUAL IN
ONTARIO TO FIND RECOURSE WHEN
THEY FEEL THAT AS AN EMPLOYEE
WHETHER THEY'RE IN THE PUBLIC
SECTOR AND PARTICULARLY PERHAPS
IN THE PRIVATE SECTOR WHEN THEY
FEEL THEIR PRIVACY HAS BEEN
INVADED BY THEIR EMPLOYER IT IS
VERY DIFFICULT TO FOR THEM TO
FIND SOMEWHERE TO TURN TO.
NOW UH, YOU KNOW I'M QUALIFYING
EVERYTHING BY SAYING THAT I'M
NOT AN ETHICIST BUT I WANTED TO
TALK A LITTLE BIT ABOUT
CORPORATE SOCIAL RESPONSIBILITY
AND IT'S ORIGINS.
THE ORIGINS OF CORPORATE SOCIAL
RESPONSIBILITY UM IN THE 70'S
WERE MAINLY INTERNAL.
EMPLOYERS FELT THAT THEY HAD TO
DO THE RIGHT THING BY THEIR
EMPLOYEES AND THAT TRANSLATED
REALLY IN PROVIDING SOME
MEASURES OF HEALTH AND SAFETY.
IT'S A PHENOMENON OF RECENT
YEARS THAT CORPORATE SOCIAL
RESPONSIBILITY HAS TURNED
OUTWARDS, AND WE'RE TALKING
ABOUT A CORPORATIONS ROLE IN
SOCIETY AT LARGE AND WE'RE
TALKING ABOUT FINANCIAL
ACCOUNTABILITY BUT ALSO
RESPONSIBILITY FOR THE
ENVIRONMENT AND ALSO CHARITY
WORK.
ALL OF THOSE ARE EXAMPLES OF YOU
KNOW CORPORATIONS TURNING
EXTERNALLY TO SOCIETY AT LARGE.
WHAT I'M SAYING TODAY IS I THINK
THEY SHOULD PERHAPS TURN THEIR
GAZE INWARDS AGAIN AND PRIVACY
IN THE WORKPLACE SHOULD BE
THOUGHT ABOUT YOU KNOW RETURNING
THIS CORPORATE SOCIAL
RESPONSIBILITY DISCUSSION TO ITS
ORIGINS.
WHAT CAN THE EMPLOYERS PROVIDE
THEIR EMPLOYEES WITH, REALLY AT
LEAST AS A MINIMAL STANDARD.
FOR EXAMPLE, CAN THEY NOT
PROVIDE A GUARANTEE THAT THEY
WON'T PUT CAMERAS IN WASHROOMS?
OR CAMERAS IN LOCKERS.
IS THAT SO MUCH TO ASK?
IN THE UNITED STATES OF AMERICA,
YOU KNOW THAT GREAT BASTIAN YOU
KNOW OF CAPITALISM YOU KNOW
WHERE EMPLOYERS ARE FREE TO DO
WHATEVER THEY WANT, THE STATE IF
WEST VIRGINIA HAS A STATUTE ON
THE BOOKS THAT SAYS YOU ARE NOT
ALLOWED TO CONDUCT ELECTRONIC
SURVEILLANCE IN UM AREAS SUCH AS
WASHROOMS OR LOCKERS,
REGARDLESS OF WHAT THE STATE OR
PURPOSE IS.
IF IT'S FOR THE HEALTH OR
PERSONAL COMFORT OF THE EMPLOYEE
IN THE WORKPLACE YOU ARE NOT
ALLOWED TO CONDUCT SURVEILLANCE
THERE AS AN EMPLOYER.
WHY CAN'T EMPLOYERS IN ONTARIO
AND ACROSS CANADA ADOPT A
SIMILAR STATUS AND SAY THAT THIS
IS THE MINIMAL THING THAT WE
HAVE TO OFFER OUR EMPLOYEES?
REGARDLESS OF WHETHER IT'S
LEGISLATED OR NOT.
IT SEEMS TO ME JUST TO BE COMMON
SENSE AND NOT TIPPING THE
BALANCE TO YOU KNOW ONE WAY OR
ANOTHER TO UM A GREAT DEGREE.
AND THIS IS NOT JUST ABOUT THE
PRIVATE SECTOR EMPLOYERS, THIS
IS ABOUT THE PUBLIC SECTOR
EMPLOYERS AS WELL.
THEY HAVE THE SIMILAR
RESPONSIBILITY, YOU TALK A LOT
ABOUT THE CORPORATE SOCIAL
RESPONSIBILITY BUT THERE'S A
RESPONSIBILITY OF THOSE
EMPLOYERS WHO ARE AGENCIES OF
THE GOVERNMENTS AT VARIOUS
LEVELS TO BEHAVE IN A SOCIALLY
RESPONSIBLE WAY AS WELL.
IF THAT MEANS THAT THEY NEED TO
PROVIDE A MINIMAL STANDARD TO
THEIR EMPLOYEES REGARDLESS OF
WHETHER THE LEGISLATION WAS
REPEALED SOME TEN OR TWELVE
YEARS AGO OR NOT, THEN I THINK
THAT THEY SHOULD BE DOING THAT.
AND NOT JUST SAYING WELL THE
LEGISLATION HAS BEEN REPEALED
AND SO THEREFORE WE FEEL THAT WE
PERHAPS HAVE GREATER FREEDOM TO
MONITOR EMPLOYEES THEN THAN WE
DID WHEN WE DID BEFORE.
IT GOES TO THE SECOND POINT OF
HOW DO YOU VIEW YOURSELF AS A
CITIZEN WITHIN SOCIETY?
WHAT IS YOUR ROLE?
ARE YOU JUST NARROWLY COMPLYING
WITH WHATEVER YOU KNOW YOUR
LEGAL DEPARTMENT TELLS YOU, HERE
IS THE LEGISLATION OUT THERE,
HERE IS WHAT YOU NEED TO DO AND
HERE ARE PERHAPS THE WAYS IN
WHICH YOU CAN CIRCUMVENT THE
LEGISLATION OR DO YOU SEE
YOURSELF AS SOMEBODY WHO IS
REALLY A CITIZEN, PART OF
SOCIETY, WHETHER YOU'RE A
GOVERNMENT AGENCY, ACTING AS AN
EMPLOYER OR WHETHER YOU'RE A
MEMBER OF THE PRIVATE SECTOR, A
CORPORATION.
SHOULD YOU NOT SIMPLY DO THE
RIGHT THING AND FOLLOW THE
GENERAL PRINCIPLES THAT WE HOLD
DEAR UM IN THIS COUNTRY.
AND I'LL LEAVE YOU JUST WITH ONE
FINAL THOUGHT THAT ALL TIES UM
TOGETHER, IN THE AREA IF
INTERACTION BETWEEN EMPLOYERS
AND THE GOVERNMENT, WE KNOW FROM
OTHER COUNTRIES THAT GOVERNMENTS
ONCE DATABASES EXIST TURN TO
THEM AND RELY ON THEM FOR A
VARIETY OF PURPOSE.
IN OUR
SURVEILLANCE IN UM AREAS SUCH AS
WASHROOMS OR LOCKERS,
REGARDLESS OF WHAT THE STATE OR
PURPOSE IS.
IF IT'S FOR THE HEALTH OR
PERSONAL COMFORT OF THE EMPLOYEE
IN THE WORKPLACE YOU ARE NOT
ALLOWED TO CONDUCT SURVEILLANCE
THERE AS AN EMPLOYER.
WHY CAN'T EMPLOYERS IN ONTARIO
AND ACROSS CANADA ADOPT A
SIMILAR STATUS AND SAY THAT THIS
IS THE MINIMAL THING THAT WE
HAVE TO OFFER OUR EMPLOYEES?
REGARDLESS OF WHETHER IT'S
LEGISLATED OR NOT.
IT SEEMS TO ME JUST TO BE COMMON
SENSE AND NOT TIPPING THE
BALANCE TO YOU KNOW ONE WAY OR
ANOTHER TO UM A GREAT DEGREE.
AND THIS IS NOT JUST ABOUT THE
PRIVATE SECTOR EMPLOYERS, THIS
IS ABOUT THE PUBLIC SECTOR
EMPLOYERS AS WELL.
THEY HAVE THE SIMILAR
RESPONSIBILITY, YOU TALK A LOT
ABOUT THE CORPORATE SOCIAL
RESPONSIBILITY BUT THERE'S A
RESPONSIBILITY OF THOSE
EMPLOYERS WHO ARE AGENCIES OF
THE GOVERNMENTS AT VARIOUS
LEVELS TO BEHAVE IN A SOCIALLY
RESPONSIBLE WAY AS WELL.
IF THAT MEANS THAT THEY NEED TO
PROVIDE A MINIMAL STANDARD TO
THEIR EMPLOYEES REGARDLESS OF
WHETHER THE LEGISLATION WAS
REPEALED SOME TEN OR TWELVE
YEARS AGO OR NOT, THEN I THINK
THAT THEY SHOULD BE DOING THAT.

SOMETIMES IT MAY BE WARRANTED.
I'M NOT SUGGESTING THAT IT'S
ALWAYS WRONG TO LOOK AT IT FROM
THAT PERSPECTIVE BUT YOU HAVE TO
THINK ABOUT IT.
YOU HAVE TO REFLECT ON THAT, YOU
HAVE TO TAKE A CLOSE AND HARD
LOOK AT WHAT YOUR ROLE IS IN
SOCIETY WHEN FROM THE OUTSET
YOU'RE THINKING ABOUT
INTRODUCING THOSE PERHAPS TINY
INSIGNIFICANT MEASURES TO YOU
SUCH AS A GLOBAL POSITIONING
SYSTEM, HIDDEN CAMERAS OR A NEW
FANCY SOFTWARE TO MONITOR YOU
KNOW AND RECORD YOUR EMPLOYEES
IN THE WORKPLACE.
I THINK THAT'S ALL THE TIME I'VE
GOT SO THANK YOU VERY MUCH
EVERYBODY.

(Long applause)

The clip ends and Andrew reappears in the studio with a caption that reads “Andrew Moodie.”

Andrew says AS LEVIN AND
LIANG POINT OUT, ONE OF THE BIG
CONCERNS WITH PRIVACY AND
TECHNOLOGY IS FUNCTION CREEP.
HOW DO I KNOW THAT THE
INFORMATION YOU'RE TAKING ISN'T
GONNA BE USED FOR ANOTHER
PURPOSE?
ONCE I HAD TO
DO A FIGHT SCENE WITH AN ACTOR
WHO WAS EXTREMELY INEBRIATED.
THIS ACTOR PUT MY SAFETY AND THE
SAFETY OF THE FELLOW STUNT
ACTORS IN THE FIGHT AT GREAT
RISK.
AFTER THE INCIDENT I SWORE THAT
THERE SHOULD BE MANDATORY
ALCOHOL AND DRUG TESTS BEFORE
ANY FILMED FIGHT.
BUT THEN AS LEVIN RIGHTLY POINTS
OUT, EMPLOYEE TRUST WOULD GO
RIGHT OUT THE WINDOW.
SURVEILLANCE, HOWEVER OPENLY
ARTICULATED BY MANAGEMENT,
HOWEVER TRANSPARENT IS STILL AN
EXPRESSION OF MISTRUST.
AND I'M NOT SAYING THAT IT ISN'T
WARRANTED IN SOME CASES.
MISTRUST HOWEVER, IS REPAID WITH
RESENTMENT.
AND WE ALL KNOW HOW MUCH FUN IT
IS TO WORK WITH RESENTFUL
PEOPLE.
BUT I CAN TELL YOU THAT HERE AT
TV ONTARIO CAMERAS ARE SET UP TO
CATCH THIS EMPLOYEE THE SAME
TIME EVERY WEEK, RIGHT HERE.
FOR
BIG IDEAS
I'M...
WELL YOU KNOW WHO I AM.

[Theme music plays]

The end credits roll.

bigideas@tvo.org

416-484-2746

Big Ideas. Producer, Wodek Szemberg.

Producers, Lara Hindle, Mike Miner, Gregg Thurlbeck.

Logos: Unifor, Canadian Media Guild.

A production of TVOntario. Copyright 2007, The Ontario Educational Communications Authority.

Watch: Sherry Liang and Avner Levin