An IT manager fired from his job at the Alabama Department of Transportation for installing spyware on his boss’s computer is trying to win back his job, in a case that raises questions about limits on the use of this technology.

Vernon

Blake was trying to prove his boss, George Dobbs, spent most of his time at work playing computer games like Solitaire at the Montgomery-based department. Blake is also said to have installed the software on the computers of two other employees, including his wife’s. His manager received only a written warning for his misbehavior.

According to a story in the state’s Decatur Daily News, testimony alleged a computer hacker in Australia breached the department’s computer firewall last year as a result of Blake’s downloading the free WinSpy software.

The Department of Transportation did not return phone calls at press time to discuss its Internet use policies.

Barbara Roth, a lawyer leading Torys’ labour and employment group in New York, said most American firms have guidelines about work-related use of computers.

“”Most companies would, consistent with those policies, find this (case) to be an unauthorized use of the computer system. The fact this employee is a computer professional doesn’t change anything, because his job as a computer professional was to install authorized computer software and perform authorized functions on the company’s computer system.””

As IT manager, Blake’s role was presumably not to be the watchdog of employees’ daily activities, even though part of his job may have been to ensure workers weren’t looking at harassing or illegal materials on the Internet, added Anne Gallop, a lawyer working in Ogilvy Renault’s labour and employment group in Toronto.

Although Blake’s “”hiding behind a whistle-blowing defence,”” this kind of legislation is typically put in place so employees don’t suffer retaliation from their employer when reporting illegal activities. “”Goofing off at your desk generally isn’t considered an illegal or criminal activity. This is not similar to an Enron situation, where there’s destruction of documents allegedly contrary to the law.””

Had Blake been an employee at a provincial department of transportation who lost his case to be re-instated, “”I don’t think there would be any real effect on IT managers”” in Canada because his actions transcended his job description, Gallop said.

Under Canadian privacy law, the collection, use and disclosure of personal information must be done with the consent of the person concerned, Charles Morgan, a lawyer in the technology law group at McCarthy Tétrault in Montreal, explained.

Morgan recommended companies develop “”a basic consent framework”” dictating the circumstances under which companies monitor employees’ and managers’ use of e-mail and the Internet. Issues covered in such a policy include staff privacy, access to illegal or inappropriate Web sites and activities interfering with an employee’s ability to perform work-related tasks, he said.

Yet companies, under the limited collection principle in Canada, cannot collect more personal information than is needed —— a tendency inherent in certain spyware brands, Morgan said. For example, if a firm is collecting personal data to ensure employees aren’t abusing access rights to e-mail and the Internet, it’s not necessary to “”read absolutely every e-mail message or have somebody visit every Web site that the employee is visiting.””

At the same time, added Morgan, “”It is unreasonable to expect that employees will make no personal use of e-mail and the Internet. Sometimes, even while you’re at the office, you’re going to call your wife or you’re going to send an e-mail that’s related to your kids.””

Barring a weak Alabama Department of Transportation policy on this subject, Roth said, it would be surprising if Blake were re-hired. She said Blake should have reported the situation to the HR department instead of single-handedly trying to trap his boss.

A state personnel hearing is said to be hearing evidence from the parties involved in the case, and the presiding judge will give recommendations to the state Personnel Board on Aug. 18.

Comment: info@itbusiness.ca

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