Cybersecurity: Technological awareness of both the Profession and the Courts

Cybersecurity is both a national and international issue - on a daily, and increasing, basis.

It is a great honour to have been invited to address the National Judicial College of Australia’s conference in Hobart this October on the topic: “Cybersecurity: The Judicial Role”.

The Digital Age presents major legal challenges to Australian and international cybersecurity and law enforcement agencies and courts on a daily basis.  However, in two appeals heard by the United States Supreme Court, Justice Sotomayor asked about “iDrop in the cloud” (ABC v Aereo, 22 April 2014) – a cloud computing service which does not exist – and Chief Justice Roberts observed that a mobile phone has “got the person's whole life….I don't know what a magistrate is supposed to put in the warrant”(Riley v California, 29 April 2014).

In order to improve professional responsibility and conduct in the area of technology, twenty State jurisdictions in the United States of America have adopted an “Ethical Duty of Technological Competence” as a component of the lawyer’s duty. Recent developments in the United States, and by members of the Australian judiciary, include an expectation by the courts of competent assistance, including “technological” competence by practitioners.  Based on recent developments in modern technology, most significant issues arise in the following areas:

Ø  Personal information/ Privacy

Ø  Data (including metadata) protection and data breaches

Ø  Discovery Protocols and Subpoenas

Ø  Cybersecurity threats, threat landscapes and threat actors

Ø  Critical infrastructures

Ø  Cloud computing