The recent decision The Queen v. Cole by the Supreme Court of Canada touches upon interesting issues regarding information privacy in the digital age.
The facts are simple. An information technologist working at the same high school as Mr. Cole, a teacher, remotely accessed Cole’s history of internet access and one of his drives and found a hidden file which contained nude photographs of a student. The photographs and internet file were copied onto a disc and given to the police, which determined that a search warrant was unnecessary. Cole was subsequently charged with possession of child pornography and fraudulently obtaining data from another computer hard drive. The trial judge excluded the computer material under Sections 8 and 24(2) of the Charter. In overturning the decision, the summary conviction appeal court found no breach of Section 8. This decision was set aside by the Ontario Court of Appeal, which concluded that the evidence of the disc containing the temporary internet files and the laptop computer and its mirror image was excluded. A 6-1 majority ruling by the Supreme Court concluded that the police infringed upon Cole’s rights but upheld the Court of Appeals’ finding that the evidence should not have been excluded from trial.
One should not be too quick to dismiss the dissident view expressed by Justice Rosalie Abella, who affirmed that the evidence at issue was obtained in violation of section 24 (2) of the Charter, which addresses treatment of improperly obtained evidence, and thus should have been excluded. What guarantees does a user have to guard against an information technologist maliciously using software to plant hidden folders on an employee’s work issued lap-top computer? As user friendliness in technologies continues to increase, transparency continues to decrease. To give one trivial example, due to the monospaced font used by mechanical typewriters, typographical convention in the 20th century required double sentence spacing. Unknown to most users, proportional fonts in modern computers and word processing software now automatically assign the appropriate horizontal space after a “.”.
Added to this invisibility is an unquestioned reliance on the evidentiary value created by the high level of fidelity of data and modern technologies. The most obvious example in this regard would be CCTV footage, which can easily be either tampered with, or display footage that is easily taken out of its broader context. Consider for instance an infra-red speeding camera that captures a motor vehicle driving 20 km over the permitted speed limit. The image only captures the infraction but says nothing about the fact that, for instance, the driver was a father of 3 children whose house was on fire. In that context, information privacy and ensuring that evidence obtained from modern technologies is not obtained in violation of Charter rights remain vital in modern society.
The doctrine of information privacy raised in R. v. Cole was first raised by the Supreme Court of Canada in the 2010 decision R. v. Gomboc. Influenced by the 1967 U.S. Supreme Court decision Katz v. the United States, the Canada Supreme Court characterized the concept as “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others.” The problem is which bits are protected? While informational privacy should be concerned with the biographical core of an individual, the majority in Cole broadly held that Canadians have a reasonable expectation of privacy in the information held on computers. Information is rarely held “on computers”. It is most often held “in the cloud”. Furthermore, in a universe of data debris, stretching the concept of information privacy beyond its borders risks imploding the concept to its own detriment. Furthermore, technologies, web services, and trade are reliant on smooth information flows. While this legitimate objective should not distract from the need for proper information management policies, broad articulations of the right to information privacy may do more harm than good.
Laws reflect social trends rather than anticipate them. Our legal system is premised on a finite world composed of physical atoms. Intellectual property laws, for instance, protect the physical representation of an idea rather than the idea itself. The legal concept of reasonable expectation of privacy is premised on zones of personal sovereignty, essentially a variant from the English dictum that an Englishman’s home is his castle. Likewise, the conventional legal concept of unreasonable search and seizure under the Charter is also a property centered concepts that assumes the existence of a physical space. The difficulties associated with applying conventional legal concepts to modern technologies was best illustrated in the 1928 U.S. Supreme Court decision Olmstead v. United States, which found that the use of wiretapped private phone conversations obtained without judicial approval did not constitute a violation of the Fourth Amendment against unreasonable search and seizures. Its rationale was that the private conversation at issue ran along phone lines, which were physically located in a public space. This decision was later overruled by the U.S. Supreme Court in Katz v. the United States. In short, while the Supreme Court of Canada found that a reasonably expectation of privacy existed in Cole’s web browsing history and a laptop’s contents, one should not lose sight of the fact that this decision was based on conventional legal concepts that are not always well adapted to the digital age.
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