Back To The Basics- The Utility Of Homing Pigeons - PGP & Encrypted Communications

This panel will primarily focus on the emerging issue of PGP [pretty good privacy] encryption technology for encrypting data as well encrypted communications more generally as well as technical and legal issues that emerge where police seek to recover and rely on encrypted data in criminal cases. Professionalism, ethics, and best practices for practice management topics will form a substantial part of this presentation, including the following:

• Duty of competency – the importance of understanding the science being relied on and techniques used and most recent case law in encrypted communication cases in order to be able to properly advise clients of legal issues and potential defences in cases where encrypted communications are in issue (which is becoming more common) (Applicable Rules: 3.1-1(a), (c), (e))
• Duty of advocacy and practice management – how to manage and what are a lawyer’s obligations when faced with disclosure of nearly infinite volumes of electronic data by way of disclosure in a criminal case.  In addition, practical guidance will be provided on how to assess and analyze large volulmes of digital information (Applicable Rules; 3.1-1(i), (h)
• Practice management – how to make appropriate use of information technology to sift through large volumes of information to find relevant kernels (Applicable Rules: 3.1-1(i))
• Duty of competency – recognizing the importance of consulting experts in both legal and non-legal fields when outside the area of the lawyer`s expertise, in this particular field there are significant issues in this field with the existence of self-proclaimed “experts”, who actually lack the necessary expertise.  The issue of the obligation to appropriately vet an expert and how to appropriately vet an expert in a technical field outside of the lawyer’s area of expertise will be explored (Applicable Rules: 3.1-1(h))
• Duty of advocacy – strategies for how to most effectively present technical and scientific information pertinent to encrypted communications and to attack so-called “expert” evidence tendered by the Crown in these cases when before a trier of fact who will not necessarily be highly conversant with the field (Applicable Rules: 5.1-1)
• A number of ethical issues and scenarios will be developed and explored during this presentation that engage issues and potential conflicts between the duty of advocacy, duty to the courts and third parties, duty of loyalty to the client, and duty of candour, and the lawyer’s duty not to engage in sharp practice and always remain above reproach, such as:
• how to handle a situation where a client brings the lawyer a locked PGP device that is know to contain relevant communications – does the lawyer have an obligation to turn it over to the police? Can the lawyer get an expert to analyze the data or take a copy of it or make a mirror of the device before it is either handed over to or seized by police? What advice can the lawyer properly give the client on how to handle the device and the communications contained on it?
• What steps can a client be advised to take (if any) on how to make it more difficult for police to access data contained on a PGP device?
• What impact does that fact that the police may apply proprietary techniques that defence counsel are unable to replicate and/or use techniques that destroy the source data in the course of extracting it have on a lawyer’s obligation in dealing with PGP devices?
• How to handle a situation where the police want client consent to search a PGP device or want the client to consent to disclosing passwords or other means of acces to data on a PGP device?
• (Applicable Rules: 3.1-1(a), 5.1-1, 5.1-2(A), 3.3-1, 3.1-1(k))