An arbitrator has found that Lakehead Uni­versity did not violate a collective bargaining agreement when it replaced its campus e-mail network with Google’s e-mail service.

Lakehead University Faculty Association contested the switch to Google’s e-mail in 2007, alleging violations of collective agreement rights to privacy and academic freedom.

In his decision, arbitrator Joseph Carrier acknowledged the university exposed its aca­demic staff to greater danger because “…the likelihood of such incursions by U.S. authority into a private e-mail system (Lakehead’s own former system) was marginal compared to what might occur in the presence of the Google system.”

He also commented favourably on the opinion of Stephen Schulhofer, the faculty association’s expert witness and the Robert B. McKay Professor of Law at New York University.

“I am satisfied Professor Schulhofer’s opinion was valid and more than adequate to confirm that e-mail originating within Canada and coming within the jurisdiction of U.S. authorities would be open to surveillance by agencies of that country and, but for safeguards here, would expose the author to potential consequences of the U.S. antiterrorism legislation,” Carrier’s decision states.

Yet, the collective agreement language does not prevent the employer from endangering the privacy of LUFA members because the agreement does not specify the obligation to ensure “absolute privacy to faculty members,” Carrier argues.

“LUFA’s collective agreement language does not ask the employer to do the impossible of providing absolute privacy,” said CAUT exe­cutive director James Turk. “But it does obligate the employer to protect the right to privacy of members of staff in ‘personal and professional communications and files.’

“A reasonable interpretation of those words would suggest the employer cannot voluntarily choose to put LUFA members’ privacy at risk by moving to an e-mail service that subjects e-mail traffic to the antiterrorism laws of the United States.”

Carrier, however, disagrees, seeing the problem as a “weakness” of e-mail rather than as greater risk created by the university’s choice of U.S. provider — Google.

Turk said in light of Carrier’s decision, CAUT intends to provide advice to all associations across Canada about the need to review the protection of privacy language in their collective agreements.