Amici Curiae: Privacy on Twitter, the Chief Justice on Access to Justice, and the Trouble with Troublesome Clients

Twitter Ordered to Hand Over User’s Private Information

The nature of privacy rights in the digital age are being challenged once again after a judge in the United States ordered the social media site Twitter to surrender information that was allegedly obtained by hacking into police websites to the Boston district attorney. The decision came three months after the DA subpoenaed Twitter for “all available subscriber information” related to the accounts @p0isAn0N and @OccupyBoston, as well as the hashtags #BostonPD and #d0xcak. The subpoena also included the name Guido Fawkes, which is associated with the @p0isAn0n account.

The American Civil Liberties Union unsuccessfully challenged the subpoena in court, but Attorney Peter Krupp maintains that his client’s “has a constitutional right to speak, and to speak anonymously.” According to the Boston Globe, the ACLU has also requested that the entire case file be made public. At this time, prosecutors are not commenting on the nature of the criminal investigation.

The ruling comes just over a year after a similar subpoena was ordered by the United States Department of Justice demanding that Twitter provide information from the accounts of several individuals with links to Wikileaks including former Wikileaks volunteer and current member of the Icelandic Parliament Birgitta Jónsdóttir, Wikileaks Founder Julian Assange and Private Bradley Manning. The order demanded Twitter provide the individuals’ mailing addresses and billing information, all connection records and session times, all IP addresses used to access Twitter, all known email accounts, and banking records and credit cards used for payment

What is most concerning about the order in that case is that it barred Twitter from notifying anyone, including the individuals whose information it requested. While a judge ordered it to be unsealed, if Twitter had not made the request, it would have been required to provide the information without informing the users.

The concerns arising from both of these cases are especially relevant for Canadians as the House of Commons continues to debate the merits of Internet privacy within the context of Bill C-30, now known as the Investigating and Preventing Criminal Electronic Communications Act. In its current form, commentator Jesse Klein argues that the bill “would co-opt Internet service providers into being a party to the state’s surveillance apparatus by forcing them to install costly monitoring equipment on their networks, which would log the Internet activity of all Canadians.” The bill has also sparked public outcry because it would also allow police agencies to obtain detailed information on Internet subscribers without a warrant.

In light of the recent use of state power in the US, Canadian activists should be especially concerned about the potential impact of Bill C-30’s controversial provisions. Activists involved in global movements such as Occupy rely heavily on the Internet and social media to leverage support for their cause and communicate their messages to the masses. If the privacy of individuals involved in resistance movements is not protected, they may be less inclined to Tweet important updates for followers, organize events using Facebook or even develop a blog. While Occupy manifested through a unique series of local articulations, these were expressions of a global movement that would not have been possible without on-line organizing. Thus, the detriments of a digital withdrawal from the activist community that could be sparked by the passing of Bill C-30 is cause for concern that all Canadians concerned about privacy rights and democracy should take seriously.

Chief Justice Decries Access to Justice Failures

Access to justice is a hot-button issue in law schools across Canada, and one that is near-and-dear to the heart of the Chief Justice of the Supreme Court of Canada as well.  In a recent address at Thompson Rivers University in Kamloops, British Columbia, Chief Justice Beverly McLachlin decried the way that our justice system has, “failed many middle class families” due to its high cost and complexity.  This is a familiar refrain for the Chief Justice in recent years.

The Chief Justice explained that many citizens, who are not poor enough to qualify for legal aid, yet cannot afford the overwhelming cost of self-funded litigation, are left without remedies for the legal problems they face.  She described this as an unacceptable outcome in light of a belief that access to the justice system should be a “basic right” on par with education or health care.

The issue of access to justice is impacted not only by the prohibitively high cost of legal advice, but also increasingly complicated and time-consuming procedures in both civil and criminal proceedings which make self-representation almost impossible.  When the high costs of a trial (The Toronto Star reported this year that “a three-day civil trial is likely to cost at least $60,738”) are combined with uncertainty of outcomes and the specter of paying the opposing parties costs, it is no wonder many Canadians avoid seeking remedies from the legal system, no matter how meritorious their position may be.

While widespread changes are necessary to address the problems that render the justice system inaccessible and irrelevant to Canadians of average means, it is clear from the Chief Justice’s harsh words that the issue is getting more widespread attention.  While access to justice is popular in the vernacular of many law students, perhaps the Chief Justice’s criticisms will allow it to enter the consciousness of more seasoned lawyers and the general population, leading to more widespread though on how the system can be restructured to avoid its current failures.   

The Trouble with a Despicable Client

Access to justice was on the mind of Ontario judge, who denied a defense lawyer a request to drop a client who he had grown to “despise.”  However, a year later, this decision was overturned by a Superior Court judge who sympathized with the lawyer and held that he should have been removed as counsel of record as his negative feelings towards his client compromised his ability to represent him effectively.

A lawyer has a professional responsibility to bring zealously bring forward their client’s case, but this responsibility can be difficult to fulfill when lawyers are representing a client who they find despicable.  This can be especially problematic for criminal defense lawyers, who may be forced to defend clients who are charged with a variety of heinous and repugnant crimes.  However, the importance of the role of defence counsel cannot be overstated in light of the principle that an accused is innocent until proven guilty.  The defence lawyer is often the last refuge that an associate has against the resourceful Crown attorneys tasked with presenting the case for their conviction.

When a lawyer decides, therefore, that they are incapable of defending a client based on their personal animosity towards them, this decision must not be taken lightly.  Once the solicitor-client relationship has broken down to the level in this case, where the defence lawyer admitted it would give him “personal satisfaction if (his client) was found guilty and went to jail,” the last refuge for the client is compromised, and a fair process dictates that the lawyer must be removed from the record.

The judge who denied the request had previously drawn the ire of appellate courts for “giving short shrift to the defence or for issuing unacceptably sketchy reasons” such as his recent conviction of a mentally ill man despite the Crown’s decision to back off the case.