Scales of Justice: Balancing Privacy Rights With Surveillance Economy

“Minds have been opened and changed over the past few months,” legal author and commentator Richard Susskind wrote in a 2020 article titled The Future of Courts. “Many assumptions have been swept aside.”

The global pandemic has forced lawyers and justice system stakeholders out of their normal physical environments and into what on the surface appears to be the safe harbour of the virtual world. Remote hearings may protect us all from a virus; the platforms that make them possible may, however, have their own issues.

An internet truism is that if you’re not paying for the product, you are the product. Data is money – every time we use a “free” service on the internet, like Facebook, or Twitter, or Zoom – we’re providing information for those companies to sell. Even when we pay for access, our information can be commoditized.

Individuals and businesses have come to accept a certain loss of privacy when they access these online platforms, but for the courts this is a new conundrum: how to provide access to justice in a virtual way while also protecting parties’ data in the surveillance economy.

When COVID-19 restrictions were put into place last March, courts, administrative tribunals and other dispute resolution bodies scrambled to find a way to offer services again, reaching for a wide array of existing online platforms, such as Zoom or Microsoft Teams, to hold virtual proceedings. The adoption of these platforms was fast-tracked in a sincere attempt to maintain access to justice, but not always with adequate information about the security and privacy architecture.

But over the past months we’ve learned that they may contain some perils – remember the spate of Zoom-bombings last spring? While no one is saying that virtual hearings should be suspended until the perfect platform is found or can be developed, it is important to recognize that all platforms have imperfections.

Another area where privacy concerns are paramount is electronic filing. Courts are holders of information that is publicly available – that is, anyone can walk into a courthouse and look at documents, discover names and personal information. With electronic filing, however, courts effectively become publishers of information that is widely available to a host of actors who may be collecting if for nefarious purposes.

This question of who does what with the available information will require the justice system to balance privacy concerns on one hand with the open courts principle on the other.

This is the work of the months to come – finding the platforms, the innovations, to form a bridge between the traditional bricks-and-mortar legal environment we all know and the virtual environment that has been thrust upon us both later than it should have been, and before we were entirely ready.

“We remain in an era of threat, with risks of barely functioning court systems, greatly reduced access to justice, and, in turn, a potential weakening of the rule of law,” Susskind states in his article. “We are also in an era of opportunity—the chance to build boldly on the shift of attitude and on demonstrable recent successes with technology, and to put in place improved, sustainable court services that are much more accessible than today’s.”

CBA President Brad Regehr and Past President Vivene Salmon are co-Chairs of the Canadian Bar Association’s Task Force on Justice Issues Arising from COVID-19. The Task Force will release its report at the CBA’s AGM on February 17.