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 t remendous

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

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

And yet, notwithstandi ng its growing relevance, the question of technol-

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

ticular has thus fa r 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nologies into outdated regimes and practices, devised for outdated tools.1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 strug gle 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, t he 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

informat ion.”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 — a nd 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, reth ink conventional paradigms that, at ti mes,

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 carefu lly exposed, bala nced, 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

200 8).

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.