Legal Commentary

LABOUR ARBITRATION: It is not always practical to keep all of our information within our borders

By David Canton

For the London Free Press - July 13, 2009

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A labour arbitrator recently considered whether Lakehead University’s switch to Google mail violated the faculty collective agreement.

The university stated that the main reason for the switch to Google was because of the growing cost and effort of having an internal e-mail system. It was first university in Canada to outsource its e-mail service to a private company such as Google or Microsoft.

This dispute between the university and its faculty association arose from the discrepancy between the university’s policy and the Google terms of service regarding privacy and access.

The association approved the university policy that stated that their electronic mail privacy would be compromised only on consent or in limited circumstances. The Google policy was more liberal than the university policy. The discrepancy led the association to seek protection under the collective agreement.

The association took the position that by switching to Google, the university violated the rights to privacy and academic freedom of its members.

A critical issue with Google mail was that Google is a corporate entity based in the United States and uses servers in the U.S. Under the Patriot Act, Protect America Act, and Foreign Intelligence Surveillance Act, Washington has the power to monitor and intercept e-mails within its jurisdiction no matter the person’s nationality.

The arbitrator dismissed the faculty association grievance. The arbitrator stated that while the collective agreement provided that “members have a right to privacy in their personal and professional communications and files, whether on paper or in electronic form,” it did not define the scope of the right to privacy.

The arbitrator also pointed out that the faculty members did not have to use the Google e-mail service. There were faculty members using other systems for their school e-mail accounts.

The arbitrator pointed out that during a discussion of e-mail privacy at the university’s Senate before the Google system was introduced, Michael Pawlowski, a representative of the university’s board of directors, said, “One should consider e-mail communications to be as private as words on a postcard.”

The decision in this case was based on particular wording in the faculty agreement, so it does not have great precedent value. But it illustrates the controversy over foreign governments’ ability to get access to private e-mail and other electronic information.

It is not always practical to keep all of our information within our borders. It is more practical, for example, for the hosting of a customer database, than it is for e-mail providers or web commerce.

The basic question is: Just how serious is this risk? Are the odds of it happening so slim that in practice it doesn’t really matter, or are we giving up something fundamental?

Full post as published by eLegal Canton on July 13, 2009 (boomark / email).