Introduction

AuthorKaren Eltis
Pages1-16
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nologies into outdated regimes and practices, devised for outdated tools.1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.

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