Jurisdiction again

There is another Internet jurisdiction mess at the moment in relation to a political corruption investigation in Canada.

The retired judge conducting the public enquiry into the popularly labelled "Adscam" affair ordered that the testimony of some witnesses, who are also facing pending criminal proceedings, should be suppressed, with potentially severe penalties for anyone deciding to ignore the ban. Details of the banned testimony, however, have been leaked to a blogger in the US who has published them.

This introduces all kinds of problems for the upcoming criminal cases. Apparently in Canada, witnesses who refuse to answer questions at a public enquiry of this nature can be jailed until they do. The testimony at the public enquiry cannot be used in a subsequent criminal trial, however, because Canadians have the right not to incriminate themselves. So if a prosecuter asks the same question as arose in the public enquiry, the accused would have the right, in the criminal court, to refuse to answer.

With all the gory details now out on the Net, however, how does this affect the accused chances of getting a fair trial? In principle you might think not at all - after all if the details are already part of the proceedings of a public enquiry they are in the public domain.

Why does the Net change things?

Monitoring, recording, processing power, computers, the Internet and very powerful database filtering tools make it possible to find out all sorts of things about people. It is relatively difficult to search and correlate paper data. The number of people who can attend a public enquiry is limited, so that testimony closed to those in attendance will not be widely circulated. But combining the power of computers to do 'clever' things with data is phenomenal, and the Internet to allow data to be searched remotely and merged with data from other places, leaked testimony gains a whole new dimension.

There are no easy jurisdictional or centralised constraints because the data flows don't recognise jurisdictional borders. Data can be collected, processed and used on a scale not previously imagined. What's more, it is cheap to do it and getting cheaper. Hence the integrity of the upcoming criminal trials gets brought into question.

No doubt, in the thick of the rhetoric of the general election campaign on this side of the pond, our main political parties would declare it outrageous that someone, perhaps admitting criminal culpability in a public enquiry, should be allowed to get off in a subsequent criminal trial on a legal technicality. But the law really matters and we cannot apply a variety of standards, based on mob mentality or the right of the few to point accusing fingers, with those who appear to be "obviously" guilty getting less protection than the rest of us. That way lies the conviction of lots of innocent people and as I understood the Irish and British legal systems (though it is arguable in the light of the political rush to be seen to be the toughest on crime), at least, on principle the conviction of the innocent is deemed to be the worst miscarriage of justice.