CRIMINAL LAW & DIGITAL TECHNOLOGIES: DRAWING LESSONS FROM THE CANADIAN AND AMERICAN EXPERIENCES.

• Author: Fehr, Colton

INTRODUCTION

The complex and rapidly advancing nature of digital technologies has resulted in significant institutional challenges for courts and legislatures when crafting criminal procedure rules. In response, a robust literature in the United States has explored the relative competence of each branch of government to devise such rules. (1) Institutional competence is measured based on three primary factors. The first is the ability of each institution to pass rules which are efficient relative to the development of technology (2) The second is whether each institution's rules misunderstand developments relating to the operation and/or advancement of the technology. (3) The third considers whether either institution is prone to showing bias against criminal justice participants in crafting its rules. (4)

Research in the United States has found that the adversarial process not only lags significantly behind technological development, it also frequently fails to yield relevant information about digital technologies. (5) As a result, courts typically craft outdated and ill-informed rules governing digital privacy. (6) Although Congress theoretically could pass faster and more informed laws via the legislative process, (7) in practice scholars have found it often provides slow responses, misunderstands the technology, and/or provides woefully inadequate weight to privacy interests as compared to those of law enforcement. (8) The latter conclusion is attributed in part to Congress being frequently influenced by majoritarian and lobbyist interests, raising significant concerns about its ability to pass balanced criminal procedure rules. (9)

My recent work has shown that broadly similar problems have arisen in Canada. In a pair of articles, (10) I found that Canadian courts frequently prove incapable of devising timely and coherent criminal procedure rules implicating digital privacy. (11) In contrast to early research praising the institutional capacity of Parliament to respond to advancements in digital technologies, (12) I have also shown how a more comprehensive review of Parliament's legislative record reveals that it frequently fails to provide timely or coherent responses to developments in digital technologies. (13) Unlike Congress, however, I conclude that Parliament has proven much less susceptible to majoritarian and lobbyist interests. (14)

The aim of this article is to compare these two countries' experiences crafting criminal procedure rules implicating digital privacy. In so doing, I develop a set of considerations for determining the kinds of regulation to which each institution in any similar polity is best suited. I contend that a variety of factors--ranging from a country's mode of constitutional interpretation, the structure of the right to be protected from state searches and seizures, the remedies available for breaches, conceptions of stare decisis, and the degree of intervener participation at appellate courts--all impact the relative institutional capacity of courts. The legislative model used for passing laws, as well as each country's susceptibility to majoritarian and lobbyist interests, are primary considerations in assessing legislative capacity to respond to the challenges of governing digital privacy in the criminal procedure context.

The article unfolds as follows. Part I begins by explaining the utility of employing comparative methodology for devising normative theories. Part II then compares the Canadian and American experiences in governing state intrusions into digital privacy in the criminal procedure context. In so doing, I show how current understandings of why each country's courts and legislatures have difficulty passing efficient, coherent, and even-handed digital privacy rules can provide valuable lessons for institutional design strategies in similarly situated countries. Part III closes by discussing several of the advantages and limitations of the present study, and in so doing highlights several potential further areas of research.

1. COMPARATIVE METHODOLOGY

   In its most basic sense, "comparison is the construction of relations of similarity or dissimilarity between different matters of fact." (15) Comparison as a methodology, however, compares objects to create more than simple knowledge about similarities and differences. Instead, the comparative method interrogates similarities and differences between objects of study to test previous hypotheses and/or construct normative theories about social and political phenomena. (16) As Luc Turgeon observes, "[b]y exploring variations in outcomes among cases, we are prompted to find the roots of such differences and to outline factors, or a combination of factors, that might account for shared or unique aspects of the [political] experience." (17)

   Arend Lijphart situates the comparative method among one of four main means of scientific inquiry, the others being the experimental, statistical, and case study methods. (18) In terms of deriving normative conclusions, the comparative method is inferior to the experimental or statistical methods. The most obvious limitation has been described as one of "many variables, small number of cases" ("small n"]. (19) As basic statistics teaches, fewer case studies result in increased explanatory factors, which makes drawing reliable explanations for social phenomenon more difficult. (20) The comparative method nevertheless serves an important role where there are significant limitations in information and/or time to fully comprehend the relevant objects of study that would allow the researcher to draw more statistically significant conclusions. (21)

   To mitigate the limits inherent in the comparative method, "small n" studies frequently employ what is known as the most similar systems design method. (22) This method "is a comparative approach in which the common characteristics of the different cases constitute 'control variables' that cannot account for the observed difference, while the remaining differences constitute the explanatory, or independent, variables." (23) Comparable cases, then, are those that "a] are matched on many variables that are not central to the study, thus in effect 'controlling' for these variables; and b) differ in terms of the key variables that are the focus of analysis, thereby allowing a more adequate assessment of their influence." (24)

   The most similar systems design method is commonly employed for Canadian and American comparative studies. This follows because of the countries' "shared Anglo-American heritage, federal structures, and liberal-market economies." (25) The fact that both are common law countries with strong powers of judicial review vested in their judiciaries are also key shared variables. Yet, the distinct nature of parliamentarian and republican systems of government can serve as key "explanatory" or "independent" variables. (26) Moreover, as will be discussed in significant detail below, the legal contexts within which each country operates also have several differences which may help explain the challenges that courts in each country have had in responding to state intrusions into digital privacy.

2. COMPARING THE CANADIAN AND AMERICAN EXPERIENCES

   Courts and legislatures in Canada and the United States must render rules consistent with a broad constitutional protection against state searches and seizures under section 8 of the Charter (27) and the Fourth Amendment of the Constitution of the United States (Constitution). (28) Comparingthe difficulties Canadian and American institutions have encountered in attemptingto pass efficient, coherent, and even-handed digital privacy rules with those of its jurisdictional counterpart will lend several valuable insights for institutional and constitutional design strategies within Canada, the United States, and other broadly similar jurisdictions.

   1. JUDICIARY

      1. CONSTITUTIONAL INTERPRETATION

         In the United States, much disagreement about the meaning of the Fourth Amendment turns on how the Constitution is interpreted. Originalist interpretation, defended most adamantly by the late Justice Scalia, provides that constitutional texts must be interpreted as the text would have been understood at the time of ratification. (29) The meaning of the text is equated with what reasonable persons living at the time of the ratification would have thought the words meant. (30) This interpretive philosophy is most commonly contrasted with the understanding of the constitution as a living document whose meaning can adapt to changing times. (31) In Canada, the metaphor that the Charter is a "living tree" is often employed to justify judicial interpretation of constitutional rights in a broad and flexible manner. (32)

         My purpose in raising these different models of constitutional interpretation is not to suggest one is better than the other. Originalist conceptions of the Fourth Amendment--generally based on property law rules--often lead to similar results as the normatively-based inquiry. The Court's decision in United States v Jones (33) is illustrative. Therein, the police installed a Global Positioning System (GPS) tracking device on the appellant's vehicle. (34) The majority concluded that the Fourth Amendment was violated, as the police committed a physical trespass when planting the GPS device. (35) Justice Sotomayor, writing for the minority agreed with the result but determined that the appellant's reasonable expectation of privacy had been engaged given the clear privacy interests implicated when police track individuals using precise and surreptitious technologies. (36)

         A similar point arises from the Court's decision in Carpenter v United States? (37) The Court was asked to determine whether the Fourth Amendment was engaged when the police obtained what is known as "cell site location information" (CSLI) from the defendant's cellular provider. Although the originalist approach in the main...