Findings under the Personal Information Protection and Electronic Documents Act (PIPEDA)
PIPEDA Case Summary #2003-114
Employee objects to company's use of digital video surveillance cameras
An employee of a railway complained that his employer was collecting the personal information of employees without consent. The complainant was concerned that the digital video recording cameras recently installed at a company yard could collect the personal information of employees, specifically, their conduct and work performance, and that such information could then be used for disciplinary purposes.
Summary of Investigation
The Commissioner's Office reviewed the new digital video camera system, which was the subject of the complaint, as well as the existing operational video camera system.
The new digital video cameras are stationed at various locations in the yard and the system is operated from a central console. The cameras are fixed, do not have zoom capacity and tape for 48-hour periods. The company informed employees of the system, its purposes and camera locations. It specifically stated that the cameras were not intended to be used for productivity issues and that they were positioned away from work areas and trained on areas of access.
The purpose of this system is to reduce vandalism and theft, liability for property damage, and minimize threats to staff safety. If there was an occurrence, the company could view the recordings. However, the company admits that the actual picture quality from these tapes is poor.
The company and the union differed on the need for such a system, with the company citing incidents of vandalism, and the union indicating that security should not be an issue given the number of employees entering and exiting the site at approximately the same time.
When the company learned that some of the cameras (both operational and digital) were inadvertently trained on certain areas where either there was a reasonable expectation of privacy or where employees were working, the company changed the camera position or installed shields to protect employee privacy.
The existing operational video cameras rotate, have zoom capacity but do not record. They are used by managers to monitor train movements and to inform crew members of train locations. They are not trained on areas where there is a reasonable expectation of privacy, such as changing facilities or washrooms. The company and the union agree that these camera systems are needed, provided they are used for operational purposes only.
Issued January 23, 2003
Jurisdiction: As of January 1, 2001, the Personal Information Protection and Electronic Documents Act (the Act) applies to any federal work, undertaking, or business. The Commissioner had jurisdiction in this case because a railway company is a federal work, undertaking, or business as defined in the Act.
Application: Section 5(3) states that an organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances.
In making his findings, the Commissioner stressed that when examining this section, he must consider both the appropriateness of the organization's purposes for collecting personal information, as well as the circumstances surrounding those purposes.
The Commissioner acknowledged that the company's stated purposes, namely, to reduce vandalism and theft, improve staff security, and limit the potential liability for damages, would seem to be appropriate. However, to ensure compliance with the intent of section 5(3), the Commissioner stressed that the circumstances must also be considered. In determining whether the company's use of the digital video cameras was reasonable in this case, he found it useful to consider the following questions:
- Is the measure demonstrably necessary to meet a specific need?
- Is it likely to be effective in meeting that need?
- Is the loss of privacy proportional to the benefit gained?
- Is there a less privacy-invasive way of achieving the same end?
Given that the incidents of vandalism were relatively minor, with the most significant damage occurring to the cameras themselves, the actual threat to security was in question, and the risk from liability claims was unclear, the Commissioner determined that the company had not demonstrated the existence of a real, specific problem, only the potential for one.
Similarly, he was not convinced that the digital system was in fact effective. Although there had been no incidents since the cameras were installed, he noted that this could equally be explained by the fact that the signs warning people entering the site also serve as a deterrent to would-be vandals. While acknowledging that the system provided poor picture resolution and was not trained on areas where there was a reasonable expectation of privacy, the Commissioner determined that it might be possible to identify an individual during the day. He also noted his concern that the mere presence of these cameras may have given rise to the perception among employees that their comings and goings were being watched, even if that was not objectively the case, and that the adverse psychological effects of a perceived privacy invasion may have been occurring. Finally, he noted that the company did not appear to have evaluated the cost and effectiveness of less privacy-invasive measures, such as better lighting in the parking lots, which could address the issue of employee security, with no effect on employee privacy.
Based on this analysis, the Commissioner did not believe that a reasonable person would consider these circumstances to warrant taking such an intrusive measure as installing digital video cameras. Therefore, the company's use of this type of video surveillance for the stated purposes is not appropriate and the company is in contravention of section 5(3).
The Commissioner therefore concluded that the complaint was well-founded.
The Commissioner recommended that the company remove the digital video cameras.
Finally, although the complaint centered on the digital video recording system, the Commissioner also took the opportunity to comment on the operational systems. While noting that the purposes for these systems were appropriate in the circumstances, he was concerned about an incident that had come to light during the course of the investigation, in which information collected from one of the systems was used in a disciplinary action against two employees. The Commissioner stated that had this incident formed part of the complaint, he would have been strongly inclined to look upon such usage of this system with disfavour. He then cautioned the company that using its operational camera systems for purposes other than the stated ones of efficiency and safety, without employee consent, would likely put the company in a situation where it would be in contravention of the Act.