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Monday Blog Round Up – August 19, 2013

As Adam’s new articling student, I’m taking up the mantle of writing our Blog Round Ups. If this is your first time reading one of these, this is where we feature other legal bloggers’ posts that we’ve read recently and highlight some of what we found interesting about them.

In the interests of full disclosure, I’ve cherry-picked this series of posts a little bit. I’ve always been very interested in cases and stories that bring technology (and the internet specifically) into the courtroom, so I couldn’t resist these entries.

Maya Angenot – “The Right Against Unreasonable Search and Seizure and Geolocation”

First up is Maya Angenot’s recent Slaw post in which she compares a recent New Jersey Supreme Court case with an Ontario Court of Appeal decision.

The American case, New Jersey v. Earls, involved the right to privacy in the geolocation data that is produced by cell phones.

Some of the most interesting findings in the case came out of the court’s discussion of cell phone use in modern society and whether cell phone data is “voluntarily” disclosed. It ultimately found that police need a warrant before they can search an accused’s cell phone contents (data or meta-data).

Maya contrasted this case with R. v. Fearon. There the Court of Appeal held that an accused’s Charter rights weren’t violated when the police searched his phone when he was arrested – a phone is just something else to be searched incident to arrest.

While geolocation data wasn’t at issue in Fearon (the police were looking for text messages, in fact), it is nonetheless interesting to see the Canadian court take such a different approach to its understanding of what cell phones mean to people. Maya certainly leaves us with the interesting question of what produced such a different result – the Canadian versus American legal system or the Canadian court taking an antiquated view of technological advances. There’s already an interesting discussion going in the Comments section.

David Canton – “Data, Meta-Data, De-Identification and Re-Identification”

This blog post from David Canton is a nice follow-up to read after Maya’s discussion of the Fearon case – particularly because it features a refreshingly realistic understanding of meta-data coming from Ontario’s Privacy Commissioner, Ann Cavoukian.

In the wake of the controversies surrounding the NSA and Edward Snowden, Ms. Cavoukian released a Primer on Metadata. Rather than take the Court of Appeal’s approach (essentially treating the contents of a phone similarly to the contents of a bag or purse), Ms. Cavoukian discusses how meta-data is, as David puts it, “just as personal and invasive as the data itself.”  This seems more in line with the New Jersey court’s interpretation of phone data (and data about data), so it’ll be interesting to see how these sorts of arguments start to play out in Canadian jurisprudence.

Simon Chester – Prosecutions Involving Social Media Evidence

Following in my interest in the use of technology in the courtroom, it would be odd if I didn’t look at the use of social media as evidence. That’s why next I’m looking at a Slaw post from Simon Chester – Prosecutions Involving Social Media Evidence. He discusses some guidelines that were published for crown counsel in the UK regarding cases involving social media evidence.

The subject matter of the post was a response to a well-publicized incident a few years ago in Doncaster. The accused, Mr. Chambers, had been very frustrated by delays caused by cold weather at the time and so posted the following tweet:

Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!

The police were eventually made aware of the tweet and an anti-terrorism squad arrested him and searched his house, phone, and computer hard drive. He was initially convicted but after several appeals the High Court quashed the conviction.

The guidelines that Mr. Chester reviewed came from the retiring Director of Public Prosecutions, Keir Starmer – the man apparently behind the push to continue prosecuting Mr. Chambers despite prosecutors in his office suggesting otherwise.

In presenting the guidelines, Mr. Starmer made reference to the importance of balancing the right to “freedom of expression and the need to uphold criminal law.”

He particularly stressed the need to avoid the potential chilling effect that might arise if the crown started prosecuting every incidence of offensive online communications. As a result, social media communications will be subject to a much higher threshold before they are subject to prosecution.

This blog post was written by Ricardo Golec.  Ricardo is a student-at-law working for Adam Goodman.