The 10th annual National Symposium on Tech Crime and Electronic Evidence was held this year, January 27, 2017. I was one of the National Co-Chairs along with Susheel Gupta and Scott Fenton. This program would not take place without the lawyers, investigators, and judges who volunteered their time both in 2017 and the years past. On behalf of Susheel and Scott, I thank all of them for the time they have taken for this matter. In this blog post I want to address some of this history of this program and why, 10 years on, it still holds the universal interest of lawyers, judges and investigators.
History? 10 years? The common law is 800 years old. 10 years isn’t history you say, and normally I would agree. With the exception of the printing press, the firearm, and the end of trial by battle in 1446, there have been few advances which have transformed how crime is committed, investigated and tried as much as the digitization of crime.
Some perspective may be helpful. 10 years ago a cloud was something in the sky. 10 years ago a cell phone was in fact a cell phone. 10 years ago, the first generation of iPhones had only just been publicly announced. The most popular cell phones were Motorola and Nokia – Samsung still made VCR’s. “Cutting edge” phones were starting to integrate small cameras and run MP3 files. Phones were not considered smart, and encryption was for the Enigma machine and spies.
At this year’s Symposium on Tech Crime and Electronic Evidence, panels discussed the issues and challenges surrounding cloud computing, encryption and social media. The keynote speaker, Alan Butler from the Electronic Privacy Information Center in Washington, D.C., spoke to the issues that arise when police deploy advanced surveillance techniques such as IMSI catchers and persistent surveillance without social licence.
The challenges of search and seizure related to the law of digital devices continue to evolve concurrently. As our search and seizure panel discussed, there are two important upcoming cases on these issues to be heard by the Supreme Court of Canada; Jones and Marakah.
A number of panels also addressed issues related to solicitor-client privilege and digital device storage. While there was little debate about the search of a lawyer’s computer in an office, there does appear to be a number of challenges raised with respect to the process of searching devices where solicitor-client issues may not be immediately obvious.
A look back at the 2006 Symposium on Tech Crime shows proposed discussions about what defines cybercrime, computer forensics 101, search and seizure, the peculiarities of e-disclosure, the use of the expert and sentencing. Since then, the delineation between cyber and other crimes has blurred. Digital evidence is important in investigations; to assess victim credibility, and to implicate the accused. Today, a serious case without digital evidence is extremely rare.
The convergence of technology – phones becoming computers and data transfers accessed by these computers – continually transforms what people consider “private”. In 2006, few were worried about the specific implications of search incident to arrest and data. After all, very few people carried around their life in a phone. Search and seizure cases with respect to electronic evidence are now some of the most important cases to come from the Supreme Court. E-disclosure is becoming the standard for disclosure. Computer forensics now involves “chip-off” extraction and methods for breaking encryption. Some of what was considered “expert” knowledge 10 years ago is taught in junior high, if not earlier.
Investigators, lawyers and Judges all need to keep up to speed with these changes in technology, forensics and criminal law. OsgoodePD’s National Symposium on Tech Crime is the one program in Canada where all of parties involved can come together annually and discuss the current impacts of technology in criminal law.
Predicting the future is a fool’s game. Some say WATSON will replace lawyers. Assuming, for argument’s sake, that this does not happen, there is little doubt that technology will continue to transform our society including the criminal justice system. If cars are self-driving who needs impaired driving laws? How the criminal justice system adapts to that change will be important to how society adapts to technology. An informed profession makes it more likely that change will happen in an informed manner.
STEVEN JOHNSTON is a Crown Attorney with Alberta Justice Specialized Prosecutions Branch. He graduated from the University of Manitoba in 1995, was called to the Bar in Manitoba in 1996. Steven joined Alberta Justice in 2010 and was called to the Alberta Bar in 2010. He is one of the national co-chairs of OsgoodePD’s National Symposium on Tech Crime and Electronic Evidence for the past 9 years. Steven prosecutes large economic and organized crime cases.