Can Criminal Law Keep Up With The Digital World?

A mere ten years ago, we did not “google” or “friend” or “wiki.” Twenty years ago, we did not listen to music on an iPod or talk on a Blackberry. Back then we bought Kodak film and waited to view our photos. The next decade should prove to be even more progressive as we start to use “bio interfaces” to directly connect to the Internet, thereby cutting out the “middle-man” or, to be more accurate, the “middle-machine.” With the direct ability to connect with technology, we will also see more data interfaces with which to interpret data, such as Wolfram Alpha. The advances and changes in technology have indeed been incredible.

With these new technologies, there will be challenges. Not in terms of how well we will adapt to the new advances: history has shown humans to be great adapters to new environments. Our challenge will be how well our institutions will be able to adapt and respond to the rapid changes. It is this challenge of how the criminal law responds to the new digital age, which was the subject of the panel presentation at the recent Alberta Law Conference.

To discuss this pressing issue, the panel consisted of two prosecutors with an expertise in presenting digital evidence in criminal cases: Daniel Scanlan, a B.C. Crown Attorney and author of Digital Evidence In Criminal Law and Marc Cigana, presently prosecuting the Quebec Hell’s Angels case. The discussion was first framed in the privacy context through the realities of society’s paradigm shift away from a full and robust privacy protection network, where personal information is jealously guarded and access to it is restricted, to a society of informed by social media, where intimate details are publically revealed and dynamically transferred world wide in seconds.

It is this new paradigm, which has kept the courts, the lawmakers, and the advocates behind the “eight-ball” and has created a legal disconnect. Decisions are rendered on technology, which by the time of the decision is no longer in use, thereby making the decision useless. Similarly, any legislative response is outdated by the time of the enactment date. The result is a patchwork of case law, too specific to be of much use as a precedent and lacking the informational basis to become legal principle.

The solution was a call by the panel for a more principled approach to technology. Instead of approaching digital evidence on a case-by-case basis, the participants in the criminal justice system must look beyond the facts and provide the evidentiary basis needed for a meta-decision on the use of digital technology. Such a decision or principle would produce a more measured response by our criminal justice system to new technological advances, thus promoting just results congruent with our digital age.

As it stands, the Courts struggle to conceptualize the new technology’s place in the legal literature. A neat example is the determination of the validity of a warrantless search of a cell phone based on the presence or absence of a reasonable expectation of privacy. Instead of viewing cell phones, as cell phones, and thus as a new entity requiring a unique reasonable expectation of privacy determination, the Courts struggle to pigeonhole cell phones into known categories. Thus the Court asks: Is a cell phone like a notebook? Or is a cell phone like a purse? Or is a cell phone like a computer? Unsurprisingly, the answer differs from case-case and from province to Province, leaving the case law in flux.

What is the Supreme Court of Canada’s position in this conundrum? So far, they have not made any cohesive determination on the issue but there is hope they will enter the fray with the Telus case, which recently received leave to appeal to the Supreme Court of Canada pursuant to s.40 as an issue of national importance, without being heard at the Court of Appeal level. In Telus, the police used a general warrant under s.487 of the Criminal Code to seize Telus records of text messages from the accused’s cell phone. The difficulty was the warrant gave authority not only for the seizure of historical messages, already sent, but also for the seizure of messages as they were being generated. Telus took the position such a seizure was akin to an interception of electronic communication under Part VI of the Criminal Code, which required a wiretap authorization.

Unfortunately, the framing of the case appears to be inviting the pigeonhole approach: Are the text messages merely letters in transit or are they more like a private conversation over the telephone? Instead of focusing on the characterization, the Court should be focusing on crafting a judgment, which will set down the general legal principles to be followed when faced with digital technology in the criminal law.

How they will in fact approach the issue will determine whether the digital future can easily live within our traditional precepts or whether our criminal justice system is just too outdated to face the challenges of tomorrow.