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    Home »  News »  National News

    Baumgartner case sharpens debate over online privacy rights of employees


    Travis Baumgartner is escorted by police at the Aldergrove, B.C. border crossing, Saturday, June 16, 2012. The internet has long been a no man's land for legal authorities and privacy experts across the country, but a recent Facebook post that preceded a multiple murder has caused both camps to prepare for battle. THE CANADIAN PRESS/Jonathan Hayward

    TORONTO - The Internet has long been a no man's land for legal authorities and privacy experts across the country, but a recent Facebook post that preceded a multiple murder has caused both camps to prepare for battle.

    Days before three armed guards were killed and a fourth wounded as they delivered cash to the University of Alberta, a controversial posting appeared on the Facebook page of a man whose name matches that of the primary suspect in the case.

    "I wonder if I’d make the six o’clock news if I just starting popping people off," read the quote on the page of a Travis Baumgartner.

    The post came June 1, less than two weeks before the shootings of the G4S Cash Solutions guards.

    A colleague of the slain and wounded guards, 21-year-old Travis Brandon Baumgartner, faces charges of first-degree murder, attempted murder and robbery of a firearm.

    He has not yet entered a plea.

    In the days following his arrest at the border between British Columbia and the U.S., the long-simmering debate over online privacy reached its boiling point.

    Editorials and public comment called for employers to keep an eye on their staff members' online activities, while privacy gurus sounded the alarm that the Baumgartner case could touch off a wave of intrusive electronic surveillance compromising people's rights.

    Those looking for clarity on the issue won't find much guidance in Canada's legal system, according to Fasken Martineau labour relations lawyer Karen Sargeant.

    Employment and privacy laws change from province to province, she said, adding the rules also change depending on whether a person is working in the public or private sector.

    Canada's legal climate tends to favour the privacy of employees over their employers, Sargeant said, adding most laws don't allow companies to take action against dubious online content that doesn't pertain to the workplace.

    The Baumgartner case, she said, illustrates exactly why she takes exception to this approach.

    "I think that's complete nonsense, myself," Sargeant said. "If an employer became aware of something exactly like this, I would say they'd be remiss not to act on it."

    Rules are murky for content that has been locked down under privacy settings inherent to most forms of social media, she acknowledged.

    Most employers would not be able to see their staff members' profiles or pictures if the user had opted to hide them from public view. In such cases, however, Sargeant said other laws could still come into play.

    Posts like the one by a Travis Baumgartner highlight the balancing act between privacy and workplace safety, she said, adding health and safety legislation must be considered in cases where comments suggest someone could wind up in harm's way.

    In such situations, coworkers who become alarmed by the contents of a secure profile may find the law is on their side

    "If an employer in Ontario, for example, saw this information, and even an employee ... one could argue that they have a positive obligation to act on it regardless of the privacy settings that were on it," Sargeant said.

    Privacy advocates, however, say such interpretations could lead Canadians down a slippery slope.

    Avner Levin, director of Ryerson University's Privacy and Cyber Crime Institute, said it's crucial to maintain boundaries between people's work and personal lives.

    He likened social media sweeps to "Google searches on steroids," saying monitoring personal profiles allows third parties to pry into areas that ought to remain sacred.

    The privacy settings of each individual profile ought to be respected, he said, adding the golden rule is to consider the intended audience for any form of online expression.

    Efforts to circumvent security barriers could quickly infringe on a person's freedom of expression, he said.

    "There are probably an awful lot of employees that have some kind of comments that could be seen as troublesome or worrisome, and hindsight is always perfect ... but the reality is that if you're looking at things ahead of time, it's very difficult to determine," Levin said.

    "People have all sorts of things that they're legitimately interested in and make all kinds of comments and never hurt a fly. It's very difficult to draw the connection."

    Canada's federal and provincial privacy commissioners acknowledge the challenge of balancing workplace safety with personal freedom, but ultimately support Levin's position.

    "Sometimes employers have to delve into private matters. But they can keep those instances to a minimum, and limit the impact on personal privacy," the federal Office of the Privacy Commissioner said on its website.

    "The possibility that an individual employee might do something harmful doesn't justify treating all employees as suspects."

    Despite these guidelines, the Baumgartner case has given businesses pause, including his former employer.

    G4S spokeswoman Robin Steinberg said the company has never been in the habit of monitoring employees' online activity, but is reviewing the possibility of doing so in light of the Baumgartner case.

    Levin cautioned against this approach.

    Wide-spread surveillance would subject a larger group of people to a less definitive but more insidious kind of harm, he said.

    Apart from that, monitors would encounter the formidable challenge of trying to distinguish strongly worded rants from genuine threats. All the social media surveillance in the world, he said, wouldn't be enough to guard against the potential actions of someone disturbed enough to commit a multiple homicide.

    "This is the type of case where the word privacy is thrown in there and it just gets dragged through the mud."


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