Litigating the Surveillance Society - Wilfrid Laurier University, Whole Foods, T-Mobile & Chicke

Earlier this month Wilfrid Laurier University teaching assistant and masters student Lindsay Shepherd was censured for showing a video in her class on the pros and cons on whether to use gender neutral pronouns. 1 The university backed down after Shepherd went public with a surreptitious recording she made of the meeting with her supervising professor, another professor, and the manager of Gendered Violence Prevention and Support at the school. The entire recording was made public. 2 Wilfred Laurier President and Vice-Chancellor Deborah MacLatchy (and the supervising professor) subsequently made a public apology to Shephard, but also indicated that an independent party had been engaged to assess the facts of the matter including a review of related processes going forward. 3

In her article on the incident Heather Mallic of The Star condemns our tattle tale culture, taking a shot at the anonymous individual who first complained about Shepherd’s showing of a televised clip of a TVOntario debate involving University of Toronto professor Jordan Peterson in her classroom:

In a gig economy, anonymity is the nastiest weapon consumers have against the semi-employed who serve them. You can snitch on your Uber driver, film your flight attendant, catch another driver on your dashcam and shame him on Twitter. Stores will send you a form to rate a salesperson, even offering you her name, so you can get them fired and then stalk them, I guess.

…

We’re not paranoid. We are indeed being taped, tracked, timed, watched and recorded. I hesitate to apply to teach a university semester course on column-writing, lest it be recorded and used against me. I would have to record the class to protect myself from non-contextual quoting.

What with all the taping, quoting and snitching, no student will dare to speak freely which is the only way you can learn to write freely. And I would sit at the front of the class muttering apologetic instructions and looking furtive, fiddling with my phone. Sad!

Indeed, depending on how the class lecture was captured and disclosed to Wilfred Laurier Administration, many Universities have prohibitions on students recording their classes. While I couldn’t find one for Wilfred Laurier (except for their music program), Concordia University has a well spelled out policy on audio and/or video recording of lectures:

1. Students shall not make any recording (audio or video) of a classroom lecture without having obtained the prior written permission from the instructor.

2. Permission to record may be granted to a student at the discretion of the instructor and normally for the sole purpose of accommodating a student’s particular needs and only for the purposes of private study.

3. Students who have obtained permission to record a lecture must do so in a manner which ensures the privacy of other students present.

4. Students who have obtained permission to record a lecture shall respect all related intellectual property rights in accordance with applicable laws and the University’s Policy on Copyright Compliance (SG-2).

5. Recordings of lectures made by students shall not be shared, reproduced or uploaded to any publically accessible web environment or used for any purpose not specifically authorized by the instructor.

6. Any violation of this Policy shall be treated as a violation of the applicable University policy, such as the Code of Rights and Responsibilities (BD-3) and the Academic Code of Conduct.4

However what are the rules outside the classroom -- of conversations between teachers and students, supervisors and subordinates, staff and academics, classmates or colleagues? All members of the University should reasonably expect to pursue their work, studies and other activities in a safe and civil environment. This includes respecting freedom of speech, thought and belief as much as it does privacy and confidentiality.

In my recent paper on Policing Surreptitious Recordings in the Workplace I suggest that employers should have clear policies prohibiting surreptitious workplace recordings. Openness and transparency about any recordings should be the rule. While I provide an example of a policy from the United States Federal Aviation Administration, a similar policy was recently struck down by the U.S. Fifth Circuit Court of Appeals in T-Mobile USA, Inc. v. NLRB as being overly broad. 5

The T-Mobile policy in question prohibited all surreptitious recordings in the workplace by employees (including audio and video) without prior management approval. The purpose of the workplace policy was “to prevent harassment, maintain individual privacy, encourage open communication, and protect confidential information employees”. A noble purpose to be sure. However the National Labor Relations Board (NLRB) argued that the ban was overly broad and potentially encroached on an employee’s rights to collective bargaining or other mutual aid or protection as guaranteed by s. 7 of the National Labor Relations Act (NLRA). 6 The Fifth Circuit agreed, stating the policy could be interpreted by reasonable people as discouraging protected activity, such as that of an off-duty employee photographing a wage schedule posted on a corporate bulletin board.

This is not to say that every “no-recording” policy will necessarily intrude on employee rights to collective bargaining or other mutual aid or protection in the United States. The rules would just need to be more specifically defined to differentiate between recordings protected by s. 7 and those that are not. Nevertheless, while the NLRA is federal legislation, it only applies to private sector employers in the United States -- not to workers who are federal, state or local government employees such as the police.

Moreover, even if such a law existed in Canada I suspect the dissenting opinion of NLRB Member Miscimarra in a very similar decision involving Whole Foods Market Group would prevail here, and that such an interpretation of our labour laws would similarly “strain credulity”:

I believe employees would reasonably read the rules to safeguard their right to engage in union-related and other protected conversations. The rules themselves state their purpose: “to encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust” and “to eliminate a chilling effect on the expression of views … especially when sensitive or confidential matters are being discussed.” The rules are no less solicitous of open, free, spontaneous and honest conversations about union representation or group action for the purpose of mutual aid or protection than of other subjects of conversation. And if employees want to record a conversation, they may do so upon mutual consent. 7

For example, in a recent Manitoba case, Justice Edmond found that a secret workplace recording by an employee amounted to a breach of confidentiality and trust such that the employer could have justified terminating the employee for cause.

The plaintiff’s inappropriate use of his cell phone in secretly recording meetings with his superiors does amount to a breach of his confidentiality and privacy obligations to the defendant … The misuse of his cell phone was also a breach of his personal code of conduct that he prepared as a result of his meetings …. 8

Furthermore, even where the surveillance is done overtly using body-camera with the knowledge of those doing the recording, it may still run “afowl” of privacy legislation.

On November 8th, 2017, Drew McArthur, Acting Information and Privacy Commissioner for British Columbia, released his investigation report into the use of employee surveillance by a BC chicken catching organization. 9

As a result of a covert video depicting disturbing images of abuse at a chicken farm was released to the media, the company involved decided to require their crews to wear audio/video cameras as they worked to (a) prevent future instances of employee misconduct and (b) to restore the company’s reputation.

McArthur was concerned that the audio/video surveillance was being used as a ‘quick fix,’ without thoughtful consideration of its potential privacy impacts and decided to investigate. As a result McArthur found that the company was collecting personal information without consent --not only about their own employees, but from other individuals, including farmers, truckers, and contractors.

[A] reasonable person standard requires that surveillance only be used as a last resort after less privacy invasive measures to achieve the business purposes have been exhausted” stated McArthur. To obtain consent for the collection of an individual’s personal information, McArthur continued an organization must provide the individual with notification of the purposes for the collection. Notification may be verbal or written, and must be sufficiently detailed for the individual to understand the purpose for the collection of their personal information. PIPA only considers consent to be valid if the individual is informed of the purpose for which their personal information will be collected.

As the company did not explicitly inform employees that the surveillance could be used for managing their employee relationship; that they could be disciplined if the recordings showed that they were not following proper procedures; that they might show the recordings to its customers to manage the company’s reputation; or that non-employees (who had also not consented) might have been subject to the surveillance, McArthur advised the company to cease collecting personal information and to destroy all existing records containing personal information collected via surveillance.

In Romeo and Juliet the Prince of Verona chides the Montagues and Capulets that their private quarrels are disrupting the “quite of our streets”. 10 As Laurier President and Vice-Chancellor Deborah MacLatchy noted in her letter of apology “I remain troubled by the way faculty, staff and students involved in this situation have been targeted with extreme vitriol”. 11

That three civil brawls erupted between faculty, staff and students is certainly one of the consequences of not dealing with the complaint against Shepherd in a fair and timely manner (considering the University was aware of the recorded conversation before it was released). However there should also processes in place that respect everyone’s rights less we all start recording our day to day interactions with people “from habit that becomes instinct -- in the assumption that every sound you made is overheard, and except in darkness, every movement scrutinized.” 12

* John Burchill, RobsonCrim. Member of the Manitoba Bar. JD (2010, Manitoba), LLM (2015, York).

1 Heather Mallic, “A brave teaching assistant gets humiliated and we all grow a little more leery of speaking too freely”, The Toronto Star, November 24, 2017. Online <https://www.thestar.com/opinion/star-columnists/2017/11/24/a-brave-teaching-assistant-gets-humiliated-and-we-all-grow-a-little-more-leery-of-speaking-too-freely.html>

2 Tristin Hopper, “Here 's the full recording of Wilfrid Laurier reprimanding Lindsay Shepherd for showing a Jordan Peterson video”, November 20, 2017. Online <http://nationalpost.com/news/canada/heres-the-full-recording-of-wilfrid-laurier-reprimanding-lindsay-shepherd-for-showing-a-jordan-peterson-video>

3 Deborah MacLatchy, “Apology from Laurier President and Vice-Chancellor Deborah MacLatchy”, Wilfred Laurier University, November 21, 2017. Online <https://wlu.ca/news/spotlights/2017/nov/apology-from-laurier-president-and-vice-chancellor.html>

4 “Policy on Audio and/or Video Recording of Lectures”, Concordia University, adopted by Senate at its meeting of November 6, 2015. Online <https://www.concordia.ca/content/dam/common/docs/policies/official-policies/PRVPAA-2.pdf>

5 T-Mobile USA, Inc. v. NLRB, 865 F.3d 265 (5th Cir., July 25, 2017). Also see Whole Foods Market Group Inc. v. NLRB, Nos. 16-0002-ag, 16-0346, 2017 WL 2374843 (2d Cir., June 1, 2017).

6 National Labor Relations Act of 1935 (49 Stat. 449) 29 U.S.C. § 151–169.

7 Whole Foods Market Group, Inc. and United Food and Commercial Workers, Local 919 and Workers Organizing Committee of Chicago, 363 NLRB No. 87 at p. 6 (Miscimarra, dissenting). Aff’d Whole Foods Market Group Inc. v. NLRB, Nos. 16-0002-ag, 16-0346, 2017 WL 2374843 (2d Cir., June 1, 2017).

8 Hart v. Parrish & Heimbecker, 2017 MBQB 68, at paras. 97-98

9 Investigation Report P17-01, 2017 BCIPC 58, [2017] B.C.I.P.C.D. No. 58.

10 William Shakespeare, Romeo and Juliet (c 1595), Act 1, Scene 1. Also see Heather Mallic, Ibid, note 1, where she said of the incident “There was widespread anger, another of those civil brawls bred of an airy word, as Shakespeare so aptly put it”.

11 Deborah MacLatchy, Ibid, note 3.

12 George Orwell, Nineteen Eighty-Four (1949), Chapter 1.