Google and the end of privacy

Earlier this year, Arbitrator Carrier released an important decision (Lakehead University and LUFA (right to Privacy and Academic Freedom) 184 LAC 4th 338) undermining faculty privacy rights when the University contracted out its email service to Google. In November 2006, Lakehead University decided to get rid of its existing internal email system and move to gmail for all student, faculty and staff accounts. Because Google is headquartered in the United States and uses servers situate in the USA, Lakehead faculty members’ email messages became subject to the USA Patriot Act, the Protect America Act and the Foreign Intelligence Surveillance Act. The Union grieved this intrusion into contractual privacy rights but lost.

The Lakehead University Faculty Association collective agreement provided for the protection of both academic freedom and the privacy of personal and professional communications. The Collective Agreement further provided that each faculty member was entitled to both a computer and computer connection. The Union contended that this created a contractual obligation to provide email service conforming to the protection of privacy enshrined in the agreement.

The arbitrator agreed with the Employer that a “computer connection” only mandated the provision of a cable connection to the outside world and not necessarily an email account. The arbitrator also averred that the right to privacy contained in the agreement did not prevent the University from contracting out its email service even if that made electronic communications subject to US law and surveillance. Fundamental to the arbitrator’s decision in this regard was the reality that electronic communications are “as confidential as are postcards.”

What is troubling in this case is that the University has previously adopted an email policy with the participation and consent of the Faculty Association which was more stringent than the Google terms of use, yet the University was not held to its own policy in the determination of this grievance. In other words, the Faculty Association participated in good faith in the development of an email policy which was eventually adopted by Senate and which should have protected faculty members’ rights not to be subject to electronic surveillance except with consent of the courts. Nonetheless, Lakehead administration blithely ignored its own policy when executing the agreement with Google.

From my point of view, this raises real labour relations issues with respect to negotiating in good faith. How can the Faculty Association participate in the policy process of the University knowing that the Administration does not feel itself bound by its own policy? Does the fact that email is generally assumed to be "public" have an impact here?