How To Navigate Through The Digital Era: A Review of Digital Evidence: A Practitioner’s Handbook

Advocacy is not simply a creature of the courtroom but is, in essence, a state of mind informed by legal principles and enhanced by strategic and tactical concerns. A skilful advocate will be able to approach each case with a tactful mindfulness, which will start from the moment the client calls to the moments after the case is decided. There are many such legendary advocates such as Clarence Darrow,G. Arthur Martin, and Eddie Greenspan. Natural talent does make a difference but truly what separates the great from the good is the desire to be continually curious about the craft. This continual renewal means being on the cutting-edge of the law. Today, such a skilful advocate melds old school advocacy with knowledge and appreciation of what’s next. What’s next, and actually already here, is technology as a legal platform. In criminal law, this means technology is not just a place people do business but a space in which people live. The key is to superimpose skilful advocacy onto the circuit board of the future. To help us successfully navigate through the digital era isDigital Evidence: A Practitioner’s Handbookby Gerald Chanand Susan Magotiaux,from the Emond’s Criminal Law Series, specially written with the technologically inclined skilful advocate in mind.

The lawyer by nature is a multi-tasker: trained to see the trial not as a linear exercise but as a multi-layered, multi-dimensional entity in which all of the moving parts of a case must be artfully molded into a workable case to be persuasively and successfully presented to the court. Throw into this delicate mix new age technology and you have, not a work of art, but a machine. Digital evidence in the courtroom re-constructs the traditional case – essentially taking a file from the Clarence Darrowinspired Inherit the Windbased on the Scopes “Monkey Trial” of 1925and plunking it down into the delightfully digital melange of Blade Runner 2049.  The Handbook appreciates the nuances of this task and is a helpful “all in one” guide for the practitioner faced with the challenge such digital cases bring. 

The practitioner bent is nicely explicit throughout the book as it continually and consistently metes out trial advice not as an afterthought to the law but as a practical outcome of it. For example, in the opening pages of the chapter on reasonable expectation of privacy, the authors remind the practitioner to focus on what was seized digitally as opposed to emphasizing the static location of the hardware. Of course, this focus on content over form just happens to be consistent with the focus of the Supreme Court in recent decisions on technology-based searches. In this way, these trial tips sharpen the law into a useable trial tool. But the Handbook does more than offer tools. Throughout the Handbook, the authors provide suggested factors to consider in dealing with the various in and out of court issues, which may arise in such cases. This attention to everyone means that the trial tools are “non-denominational” as they are useful for every player in the justice system defence, Crown, police and even judge. Essentially, the Handbook endeavours to create a virtual tool box that can be custom made for whomever has the need to create a case. Better yet, these tools are not saved into an outbox folder for view at the end of the book but reside within each discussion byte-point as the digital journey proceeds in the Handbook. 

Even if you are attracted to the Handbook purely for the tips, you will certainly read it, cover to cover, for the more traditional discussion of the various legal issues engaged by digital evidence. With a “bit to byte” approach, the Handbook is a smart guide on all of the technological dimensions of a criminal case from Part I on search and seizure, to Part II on disclosure, and finally ending in Part III on the use to be made of the evidence. These Parts divide the Handbook into three conceptual areas: the investigative stage, the pre-trial or case building stage, and concluding with the trial stage where digital technology is used both within the trial process as evidence and as part of the trial process as a tool for presenting that evidence. 

Each Part is further divided into discrete chapters. I am particularly impressed with the opening chapter on the Reasonable Expectation of Privacy in Digital Data. I agree with the authors that reasonable expectation of privacy (REP) “opens and ends the s. 8 analysis” (page 4). Actually, I would go further and suggest REP is theplace in which s. 8 resides (although that depiction may be too ‘territorial’ in aspect for some) and as such is the lens through which digital evidence must be viewed throughout any analysis, be it for legal commentary or trial use. Then there is the less esoteric but equally important chapter 7 in Part II Disclosure on Practical Constraints on Crown and Defence. This chapter is a tell all discussion of how to maneuver through disclosure undertakings, the real cost burden of giving and receiving digital disclosure and the myriad of access to justice issues resulting from the thousands of pieces of data disclosure connected to these files. This big-picture through a magnifying lens approach to digital evidence strikes the right balance between practice and principle – just what a skilful advocate needs and wants. 

Another highlight of the Handbook is the high-level discussions of technological terminology such as the “chipping” and “parsing” required to extract and copy data from a smart phone (page 168). Or the introduction to the “thumbnail” database (page 202) as an indicator someone has viewed a particular computer file. My favourite techie talk is the “Trojan Horse defence,” wherein the defence position goes “viral” by suggesting illegal computer data was parachuted onto the computer through the back door by a hacker or by the use of malicious software. 

If there is a weakness to the Handbook it comes by it honestly. Although Canadian case law does not have the high-speed energy of sci-fi movies, it does have a large and I mean a mega large pool of case law on the use and misuse of digital evidence. The downside to the book, which is not a failing of the authors, is the sheer number of cases which now engage digital evidence. In fact, the book just missed the release of the Supreme Court’s pronouncements in Marakahand Jonesand as such the book, although in sentiment is reflective of these seminal cases, cannot reference them directly. This is where perhaps the publisher might want to use some digital magic of their own by turning the book into a digitally interactive hyperlinked online e-zine that can be updateable by a click of a mouse. Perhaps it will become an App, accessible on your smart phone or iPad. 

Whatever the format, this book truly is a “how to” guide to the digital world, reminiscent of the Hitchhiker’s Guide to the Galaxy, the subtext is - read this book and “Don’t Panic.” More accurately, read this book and you will become more skilful at technological advocacy.

 

Taking a Quick Survey of the Legal Landscape Through the Intersection of the Public and the Private Living Space

Sometimes law creeps into the most unlikely areas. I was sharing an article by Alex Bozikovic, the architecture critic in the Globe and Mail, with my son, who is studying for his Master’s Degree in Architecture. The article comments on a structure, a house, designed for a modern family, who requires multigenerational living space for aging parents. The plan of the house is at once typical, with kitchen, bedrooms and living space, but at the same time atypical as it accommodates “kitchens.” At the heart of the home is a lively transparent “public” space connecting the generations so, as suggested by the owner, to “allow us to be together when we wanted to be.” My son commented approvingly of, what he called, “the stratigraphy of semipublic and private” running throughout the design. What struck me about his remark and the design of the house was the acceptable integration and embracement of the public into the private. This caused me to pause and consider what this sentiment and the design behind it means for the future of the legal landscape.

In my criminal law focused mind, the immediate correlation this design concept has with law matters is in the area of section 8, search and seizure, which provides protection of privacy rights. As with all Charter rights, this protection is not absolute but is framed against the permissible intrusions into our private sphere for the purposes of law enforcement. To ensure this frame fits and sits properly within that privacy sphere, judicial oversight is required. The frame should sit lightly yet must cover enough of that sphere to ensure public safety is not compromised. Similarly, the greater good must not be advanced at the expense of who we are as a society. This delicate balancing is done through the judicial gatekeeper’s lens, which is carefully calibrated through case law with a “cut once measure twice” philosophy. Indeed, the recent decisions of Marakah and Jones, which I commented on in previous posts you can access here (Marakhah) and here (Jones), serve as an example of this balancing and re-balancing of privacy rights. The majority of the Supreme Court seem to be recognizing that privacy is not a static concept nor is it a contained one but is a changeable concept requiring the law to be as nuanced as those conceptions of privacy seem to be.

However, when I look at how architectural space is conceived, I wonder if our legal conception of space is in step with this living space formulation. In terms of Marakah and Jones, which only now recognizes the integration of technology into our “living” spaces and therefore changes our legal conception of those spaces, the concern becomes more fundamental: does the generation that fashioned “reasonable expectation of privacy” truly understand what this generation expects from their “reasonable expectation of privacy?” Public and private are not in opposition, but as vividly exemplified in the multigenerational design of the house, they live together harmoniously. But it goes further: public and private flow from one extreme to another continuously as the core meaning of these terms ebb and flow. When my son refers to the “semi-public” aspects of the house design, he isn’t just referencing the transparent walls which permits the public into that living space but is also referencing the semi-public inner space of the home, which fluxes between one generational family to another. Is our law that flexible? Can it understand the layering and flow of the new reality of space, which embraces public and private occurring within the same time frame and essentially creates a collapsing of time as space recombines these terms into one “space”?

The irony of this “new” conception of space is that it is not in fact new. In Ancient Rome and in Ancient Greece, the home or domus occupied by the upper class was both publicus, of the people, and privus, of the individual. The Ancient Roman domus, for example, was often sandwiched between commercial premises, which may be owned by the home owner as well. Additionally, the living space inside the domus was open to the public demands of the “master of the house” or the dominus, who would receive daily morning greetings (salutatio) from his clients (those whom he gave monetary and economic support to in exchange for their support often in the political arena). For more on this, start here. It is only as society expanded that our concepts of public and private separated. Now that technology has brought us in close contact again, it might be time to be open to a totally modern approach to the legally constructed frame of privacy rights.

Consistent with this view, is further commentary made in Bozikovic’s article calling for a renewed approach to land use laws, which traditionally precludes multigenerational home design. The article maintains that post World War Two, the vision of people living separate and apart but together in one community, was the essence of “tidy” modernity. But that vision is contrived as life cannot be contained in a pre-fabricated frame but must be permitted to bleed over the edges. The need to blur the lines between private and public may be contrary to the bright lines we are taught to expect from the law, but the alternative may be just as murky. Without a living and breathing law that is reflective of the generation who must live by it, we, sitting in the legal landscape, will be left behind.

This brings me to the final connection this article brought to mind, which is the future use of predictive analytics in legal decision-making. In this area the collision of private and public space is a matter of concern rather than a matter of celebration. If the Charter is designed to protect informational privacy as a matter of self-autonomy and dignity, then the prospect of our waking moments being mined for data in order to suggest what we may or may not do in the future is legally concerning. This concern becomes magnified when such big data is funnelled into a “black-box” algorithms which uses the information to deny people bail or sentence them to long terms of incarceration. This concern with transparency and accountability in the realm of analytics is now front and centre in the soon to be “live” European Union General Date Protection Regulation or GDPR. Although the legislation was approved in 2016, the rules contained therein will be enforced as of May 25, 2018. This regulation of data privacy couples with the AI Now Institute 2017 Report on the use of Artificial Intelligence or AI mechanisms through the lens of civil rights and liberties, bias and inclusion and ethics is a must read for those legal minds concerned with the computerized mind making choices and decisions that impact life, liberty and security of the person. In Canada, we need to be doing more open access discussion of these thorny issues which intersect law, technology and social science. For more information, I highly recommend a google search and follow on Twitter my colleague at the University of Calgary law, Emily Laidlaw, who does research and writing in the area of regulation of the internet. Her blog postings on the faculty’s ABlawg website can be found here. Finally, I add to this eclectic mix, a recent article based upon a conference in Barcelona on  Internet, Law & Politics entitled “Personal Data Protection as a Nonfunctional Requirement in the Smart City’s Development” by Lorenzo Dell Corte (Tilburg University & TU Delft), Bastiaan van Loenen (TU Delft), and Colette Cuijpers (Tilburg University) and the intersection between issues of privacy, regulation and the support for the Smart City integrating this new technology.

The kind of interdisciplinary work needed to truly unpack and understand these issues and the significance to the legal landscape is possible and needs to be done. In some ways the scholarly approach needed, involving law, architecture, technology and politics, is a micro-reflection of the “modern” spaces we will be living in and constructing in the near future. Considering that, it is time to broaden the legal landscape and allow the private and public to come in.