Do you have an Expectation of Privacy?
Many privacy advocates recently expressed concern over the discovery that the Canada Revenue Agency (the ‘CRA’) monitors Facebook, Twitter, and other social media networks in order to investigate citizens it believes could be cheating on their taxes. The CRA’s compliance section has essentially been scrutinizing the social media posts of Canadians it suspects are at “high risk” of cheating on their taxes, and make that judgement call based on wealth or the existence of offshore bank accounts.
The CRA defends the practice, saying it is simply using “publicly available information”. As stated by Scott Chamberlain, chairman of Canadians for Tax Fairness, the CRA has long used publicly available information to investigate tax fraud, such as taking pictures of a yacht or high-priced car (that didn’t match tax records) parked in front of someone’s home. However many privacy advocates feel the on-line world is different – many Canadian think they are only sharing pictures with their friends and family, but such content is more broadly publicly visible.
Personal Responsibility for one’s on-line reputation
In my view the individual posting details about their personal life on-line must be held responsible for protecting the privacy they desire. The federal privacy commissioner, Daniel Therrien, has often urged Canadians to be careful about their privacy settings and what they post on-line. If you are going to share revealing details on social media that could affect your on-line reputation, be absolutely clear about who can see these.
Ofcourse you can’t control what your friends post about you, so it is still important to regularly check your on-line profile. For example, by ‘Googling’ yourself regularly, you may discover content or photos you don’t want publicly displayed, so you can demand they be taken down.
Generally speaking, in today’s Internet era, when content is posted and made broadly available to the public, I believe it is critical to hold people responsible by deeming that in most circumstances, there is no reasonable expectation of privacy in such content.
Learning from the Employment World
When it comes to on-line surveillance of employees, the inquiry into whether an employee had a reasonable expectation of privacy in the intruded space is at the core of the law governing workplace privacy. Many cases indicate that the Canadian and American courts are reluctant to recognize a blanket workplace privacy right, and are willing to defer to employer policies and agreements for setting reasonable workplace and e-mail privacy expectations.
Aside from monitoring for productivity, security, and performance, firms have a vested interest in learning about their present and future employees’ moral constitution and personality traits that may affect on-the-job duties. Failure to uncover an obvious flaw in an employee’s background or character could lead to bad hiring or retention decisions, and serious consequences for a business.
The danger of “social media background checks” is that personal information presented out of context or inaccurately may lead employers to judge candidates unfairly, without their knowledge, or without providing an opportunity for rebuttal. Worse yet, the surreptitious quality of the information search may be a backdoor to illegal discrimination. For an in-depth and excellent review of this unregulated yet widespread practice, the American Business Journal published an article called “Blurred Boundaries: Social Media
Privacy and the Twenty-First-Century Employee“, Volume 49, Issue 1, 63–124, Spring 2012.
Thus, a structured framework that requires verifying information found on-line, clearly defined purposes, and complete transparency are critical when scrutinizing the on-line reputation of employees.
Transparency encourages an Accountable Government
Since ‘publicly available information’ was not addressed in the Privacy Act, being the federal law drafted in 1983 that governs the CRA and other federal government agencies, information on your Facebook page remains ‘personal information’ and is thus protected by this statute. This means the government cannot collect and use such content unless it is directly related to its operations, and such collection and use must be done with transparency.
Therrien, and former assistant commissioner, Chantal Bernier, say the Treasury Board should draft guidelines – a framework to ensure such collection is directly related to the government institution’s programs and services.
I agree that clear guidelines should be introduced that outline what exactly the CRA looks for, the methods used for conducting such on-line research, and how information collected on-line is verified. In an era where open government is encouraged for complete accountability, the public should be given the opportunity to examine the government’s fact finding techniques, to confirm they result in finding information that is directly related to the government’s activities and programs.
Just as organizations should be open about the fact that they check applicants’ on-line reputation as part of their recruitment process, the public should be clearly told that the CRA uses information publicly available on the Internet to identify inconsistencies with tax filings. It is then up to individuals to consider their on-line reputation responsibly.
For assistance with transparent policies, contact PRIVATECH.