Introduction

• Author: Karen Eltis
• Pages: 1-16

1

Introduction

e one thing [the victorious plainti] Costeja did not want us to know

about him is now the only thing the entire world knows about him.

— Comedian John Oliver regarding the uni ntended consequences of

Costeja’s win before the European Court of Justice in 2014

A. INTRODUCTION

Technology plays an incontrovertibly central role in contemporary judi-

cial work and lives, both on and o the bench. Along with tremendous

benets, it imports substantial new challenges that increasingly have an

impact on courts, litigants, and professional ethics in the broader sense.

And yet, notwithstanding its growing relevance, the question of technol-

ogy’s ramications for the courts more generally and for judges in par-

ticular has thus far evaded scholarly inquiry almost entirely, leaving

courts (for the most part) with little choice but to attempt to t new tech-

nologies into outdated regimes and practices, devised for outdated tools.1

So, too, has technology le judges perplexed regarding expected conduct,

1 As will be demonst rated in the following chapters. In a d ierent context, see

Daniel J Solove, “Panel VI: e C oexistence of Privacy and Secu rity: Fourth

Amendment Codicat ion and Professor Kerr’s Misguided Call for Judicia l

Deference” (2005) 74 Fordham Law Review 747 at 773, observing that “many

judicial misunder standings stem from courts t rying to t new technologies

into old statutory regime s built around old technologies. e problem with

the statutes is th at, when they try to track ex isting technology too closely, they

become too rule-li ke and lose the exibility of a sta ndard. Basic principles get

lost or forgotten in the shue of techn icalities.”

Courts , Litigants, and the Digi tal Age2

as rule makers, judicial conferences, and ethics councils struggle to keep

pace with innovation and technology’s staggering advances.2 As the Su-

preme Court of Canada remarked in the recent decision in R v Spencer,

“relevant provisions [of the existing normative framework] provide little

assistance in evaluating the reasonableness of [the accused’s] expectation

of privacy.”3 Although decided in a criminal context, the Court’s observa-

tions are indeed telling not only with respect to the dearth of guidance

emanating from the normative framework now in place but perhaps even

more so with a simple, albeit powerful recognition regarding the notion

of a “reasonable expectation of privacy.” Privacy, the Court opined, “also

includes the related but wider notion of control over, access to and use of

information.”4 e latter view of privacy in the digital age signicantly

focuses on self-actualization and individual evolution, which anonymity

is said — but not without controversy — to facilitate.5

More oen than not, eorts at elucidating the nature of privacy and

its aliation to the governing fra mework in the justice setti ng specically

give rise to nebulous or conicting guidelines at best, or silence at worse.

In turn, ad hoc responses are prompted in an area where predictability

and stability are key.

What then must we do? e rst step is for courts (and justice system

actors more generally) to identify the issues that technology — and par-

ticularly the Internet — raise for privacy a nd beyond, in order to increase

understanding and al low for informed decision making. Second, we must

revisit and, in some cases, rethink conventional paradigms that, at times,

fail to satisfactorily address t he intricate issues raised by technological ad-

vances, in the judicial context.

e underlying premise of what follows, it must be emphasized, is not

to exclude judges from the Internet revolution, but rather to harness tech-

nology, cautiously and thoughtfully, towards the administrat ion of justice.

Justice must be not only ecient as the impulse or end-goal tends to be

whenever technology is involved, but also mindful of the intricate com-

peting interests that must be carefully exposed, balanced, and taken into

2 In an area where dearth of g uidance is characteris tic. See, for example, Adam

Dodek, “Help Wanted: A Judicial Code of Conduct” L aw Times (25 February

2008).

3 2014 SCC 43 at para 55 [Spencer].

4 Ibid at para 40 [emphasis added]. Reminisc ent of the German approach dis-

cussed below.

5 As Cromwell J remarks in Spencer,above note 3 at para 48, citing Doher ty JA’s

reasoning in R v Ward, 2012 ONCA 660 at paras 71 and 75.