CRIMINAL LAW AND DIGITAL TECHNOLOGIES: AN INSTITUTIONAL APPROACH TO RULE CREATION IN A RAPIDLY ADVANCING AND COMPLEX SETTING.

• Author: Fehr, Colton
• Position: Canada

Courts and legislatures in Canada and around the world have struggled to respond effectively and efficiently to the challenges posed by the use of rapidly advancing and complex technologies. As a result, scholars have debated the appropriate role of each institution with respect to governing privacy in the digital age. This debate has provided foundational evidence upon which to develop a normative framework for governing digital privacy. Yet, the Canadian literature has only sparsely addressed the ability of Canadian legislatures to respond to the challenges presented by the use of digital technologies. This article begins to fill the gap in the literature by asking whether Parliament has been able to reply to the use of complex and rapidly advancing technologies in an efficient, coherent, and fair manner. I conclude that Parliament's legislative framework for governing state intrusions into digital privacy has been patchwork and inconsistent. After comparing these findings to the literature on the relative institutional capacity of courts, I outline a general strategy for ensuring each institution tasked with governing digital privacy is working to its strengths, not its weaknesses.

Les tribunaux et legislatures au Canada et a travers le monde ont eu de la difficulte a repondre de maniere efficace et efficiente aux defis poses par l'utilisation de technologies qui sont complexes et se developpent rapidement. Par consequent, les chercheurs ont debattu du role approprie de chaque institution dans l'encadrement de la protection de la vie privee a l'ere numerique. Ce debat a fourni des preuves fondamentales pour construire un cadre normatif pour la gouvernance du respect de la vie privee numerique. Neanmoins, la litterature canadienne n'a traite la capacite des legislatures canadiennes a repondre aux defis presentes par l'utilisation des technologies numeriques que de maniere eparse. Cet article est un premier pas pour combler ces lacunes dans la litterature en analysant la capacite du Parlement a repondre a l'utilisation de technologies qui sont complexes et se developpent rapidement de facon efficace, coherente et equitable. Nous concluons que le cadre legislatif du Parlement pour regir les intrusions de l'Etat dans la vie prive numerique des citoyens a ete un assemblage decousu d'initiative legislative. Apres avoir compare ces constats avec la litterature sur la capacite institutionnelle relative des tribunaux, nous presentons une strategie generale visant a assurer que chaque institution chargee de reglementer la vie prive numerique s'appuie sur ses forces et non ses faiblesses.

Introduction I. Methodology II. Parliament's Legislative Responses A. Speed of Response 1. Post-Charter 2. 1994-1997 3. 1998-2013 4. 2014-Present 5. Summary B. Coherence of Response 1. Wireless Phones 2. Tracking Device Warrants 3. Digital Number & Transmission Data Recorders 4. General Warrants 5. Computer Searches 6. The Definition of "Intercept" 7. Subscriber Information 8. Summary C. Public Choice Theory III. Implications Conclusion Introduction

In United States v. Jones, (1) Justice Alito observed that "[i]n the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical." (2) Given the limited resources of government, storing mass amounts of data or conducting regular surveillance of everyday activities was not economically feasible. With the onset of the digital age, this reality was thoroughly undermined. (3) Both government and corporate entities now frequently employ rapidly advancing and complex technologies, which permit the gathering and storing of incredible amounts of information about individuals. (4)

This novel legal terrain has given rise to a general debate in the American literature about whether courts or legislatures are institutionally better equipped to meet the challenges presented by technological advancement. (5) Courts have been shown to have two main weaknesses. First, the rapid evolution of digital technologies often results in judges rendering outdated decisions. (6) Second, because of the "unusually complex" nature of digital technologies, judges operating within the adversarial system often receive inadequate evidence upon which to develop principled rules. (7) This is unsurprising since there is no guarantee that the parties to a proceeding have sufficient technological knowledge or resources to explain the intricacies of a complex technology. (8) Legislatures are arguably better equipped to respond given their greater informational capacity and ability to pass laws expediently. (9)

Others counter, however, that in practice legislatures are often unable or unwilling to update "obviously flawed and outdated provisions." (10) These difficulties are explained by identifying structural impediments to passing legislation, as well as special interest influence on legislatures, including majoritarian influence stemming from a dislike of criminal suspects. (11) Even though judges tend to craft broad rules to give future courts flexibility in assessing novel circumstances, judicial rule-making at least allows for the incremental, evolutionary development of policy in response to changing technological and social circumstances. (12) As a result, these scholars argue that courts are better suited to govern privacy interests in complex search technologies. (13)

The Canadian literature has identified similar problems with respect to judicial governance of digital technologies. (14) Unfortunately, however, only a limited amount of scholarship has explored Canada's legislative ability to create laws governing digital devices. (15) These authors conclude that Parliament has risen to the challenge of governing privacy in the digital age. (16) Their conclusions, however, derive from Parliament's first few legislative responses to complex technological issues that arose from litigation under section 8 of the Charter. (17) As more difficult problems have arisen since these initial legislative reactions, more sustained study of parliamentary capacity to address the unique challenges of governing digital privacy is necessary.

As I conclude below, the initial academic optimism about Parliament's abilities in this regard was unwarranted. Parliament often passes digital privacy laws that are broad and indeterminate, leaving it to the courts to develop a framework for governing digital privacy intrusions. Where Parliament enacts laws tailored to address a narrow aspect of digital privacy, these laws often become stagnant, lead to incoherent results, or both. As courts are struggling to create informed rules within the adversarial framework, either legislatures must take a much more active role, or they must provide courts with better tools to decide issues relating to complex technologies. I contend that the latter approach is preferable since Parliament's institutional constraints will likely continue to prevent it from legislating quickly and coherently in response to the use of new and complex technologies. Instead, I maintain that courts and Parliament should work together to ensure judicial development of the law is expedient, coherent, and evenhanded.

This article is divided into three parts. In Part I, I outline my methodology for exploring the institutional capacity of legislatures to govern digital privacy as opposed to courts. In Part II, I analyze Parliament's legislation governing complex and rapidly shifting technologies, asking whether this legislation responds quickly and coherently to technological change, and without undue influence. I conclude that Parliament suffers from many of the same weaknesses attributed to Congress in the American literature, although to varying degrees. Part III closes by using the article's findings to develop a normative framework for governing digital privacy. Contrary to much of the literature on institutional choice, I maintain that Canadian courts should play a significant role with respect to governing digital technologies, at least in the context of criminal procedure.

1. Methodology

   The term "digital technology" refers to electronic tools, systems, or devices that generate, store, or process data. Although my study primarily focuses on Parliament's legislative responses to digital technologies, other complex and rapidly developing technologies raise similar governance concerns and, therefore, are also appropriate objects of study. (18) As I explain in Part II, Parliament's legislative responses to these types of technologies have been enacted piecemeal over the last several decades. This time period provides ample opportunity to test parliamentary capacity to respond to digital privacy concerns.

   In my review of the statutes, I seek to answer three main questions. First, I inquire as to whether Parliament has reacted quickly to developments in digital technologies. As noted above, this is one of the main weaknesses of allowing courts to create rules with respect to digital technologies. Judges operating within the adversarial system can only address technological issues when criminals or police have used new technologies in a legally relevant way. (19) Even after a technology is considered by a court, the appeals process will delay confirmation of any rule rendered at trial. (20) If Parliament reacts no more quickly than courts, this consideration will hold little sway in determining who is better capable of governing digital privacy.

   Second, I will assess whether Parliament's responses have led to incoherent or unintended results. Again, this is a main critique of allowing courts to regulate digital technologies. Courts not only face time constraints when rendering decisions, (21) they are also limited to consideration of the evidence submitted at trial. (22) Because adversarial proceedings tend to produce inadequate evidence of the operation of digital technologies, courts are prone to render decisions...