DOCTORAL EXPERTISE IN LAW
Claudiu Popa, Evidence Collection and State investigation in the Era of the “Police, Intelligence Services, Private Corporations” Ecosystem. In Search of the Protection of Fundamental Human Rights, doctoral thesis, Faculty of Law of the University of Sherbrooke and Faculty of Law and Political Science of the Bordeaux University, 2024, 633 pages, online : <https://savoirs.usherbrooke.ca/handle/11143/22601>
"This work will be useful both to academics and to police officers, lawyers or magistrates."
Pr. Charlotte Claverie-Rousset
Faculty of law and political science, University of Bordeaux, France
Chapters 1 and 2, "I found them remarkable," they "deserve a 10 out of 10. This thesis will be on my desk and it will be an important working tool."
Pr. Alexandre Stylios
Faculty of law, Laval University, Canada
Structure of the doctoral thesis
EVIDENCE COLLECTION AND STATE INVESTIGATION IN THE ERA OF THE “POLICE, INTELLIGENCE SERVICES, PRIVATE CORPORATIONS” ECOSYSTEM. IN SEARCH OF THE PROTECTION OF FUNDAMENTAL HUMAN RIGHTS (2024)
"The introduction focuses on the social control of the population through new technologies and raises the issue of digital technology as a vector of increased State control."
"The first chapter focuses on 'State control through techno-legal symbiosis and its tools for collecting digital evidence': thus, the adaptation of the law to this new digital infrastructure is analyzed."
"The second chapter focuses on 'the trio: police, intelligence services, and private corporations: State control exercised through an ecosystem of digital evidence-gathering actors': it thus highlights the national and international interaction between these public and private actors."
"The third chapter offers 'a more holistic view of Canadian criminal law and French penal law' and emphasizes the protection of fundamental rights and freedoms."
Pr. Édouard Verny
Faculty of law, Paris-Panthéon-Assas University, France
In brief: some findings from the doctoral thesis in simple language
Regarding actors who gather digital evidence on individuals that can be used against them in criminal proceedings:
On police
There is currently a vast national and international evidence-gathering ecosystem, made up of the police, intelligence services, and private corporations. This evidence-gathering ecosystem is complemented by partners from each of these three entities.
On intelligence services
Intelligence services are increasingly present in national police investigations, and this presence is encouraged by a legal framework that authorises the conclusion of agreements and protocols for collaboration and intelligence sharing with police services.
A major problem with this police-intelligence rapprochement is the fact that abusive intelligence gathering practices by intelligence services are difficult to detect (if not undetectable), difficult to challenge (how can you challenge something you don't know?), and these concealed abuses have the potential to taint the legality of police investigations (the police being known, as well, for a history of abuses in evidence gathering).
There is a history of abuse of power by intelligence services regarding their surveillance activities, especially domestic surveillance, gathering intelligence and sharing intelligence, as well as a propensity for recalcitrant behavior when it comes time to truly be held accountable. These intelligence services have long been accustomed to operating in the shadows and are constantly under pressure to be more transparent.
On private corporations
The current legal framework essentially authorises private corporations to also act as investigators in relation with their clients — you: private corporations collect an exorbitant amount of personal information (personal communications, online searches, purchases, political opinions, ideological views, sexual preferences, etc.) which these corporations can then provide to the police, upon request (mandate) or voluntarily, on their own initiative (by snitching).
While the State is prohibited from conducting widespread surveillance of an individual, the civil law framework authorises and facilitates such 24-hour data gathering by private corporations, which create files on their clients or customers. This legal dynamic, where the State obtains what private corporations constantly collect, allows the State to do indirectly what fundamental protections in criminal law prohibit it from doing directly: conduct widespread surveillance of an individual.
Private corporations have the ability to undetectably abuse the data they have collected on individuals, subjectively and selectively deciding, even in a discriminatory manner, on who, when, and how to selectively snitch to State investigative services, according to their own criteria, values, desires, definitions of what they consider acceptable or unacceptable, or other arbitrary corporate decision-making factors to that effect.
The consent to collection obtained by private corporations from the individual on whom they collect this data, consent which must be free and informed, is in many cases “not so free” (for example in situations of constraint or necessity to use technology without an equivalent alternative means: the employer who requires you to use the Zoom application for your professional activities, etc.) and “not so informed” (the individual does not really know what is being collected on him or what private corporations actually do with this data once collected, regardless of what they claim as the supposed reason for gathering).
Regarding the tools used by evidence gatherers to collect digital evidence on the individual:
Over the past 20 years, Canadian and French legislators have inflated the legislative framework on evidence gathering in criminal and penal law, integrating the new digital infrastructure into the arsenal of tools used by the State to conduct investigations.
Evidence gatherers collect 5 categories of digital evidence: telecommunications (metadata and substance), geolocation (which makes it possible to determine not only your exact location at a specific moment in time, but also your proximity to a crime committed at that location, making it possible to infer participation in the commission of the crime), biometric identification (facial, voice, digital, DNA, etc.), behavioral evidence, and financial evidence.
The smartphone is the ultimate tool for collecting all 5 categories of digital evidence, a tool that, coincidentally, is carried by everyone everywhere they go.
The preferred method of data gathering by private corporations is the civil service agreement, concluded between an individual and a corporation. This civil service agreement has de facto become a tool for data gathering, data that the corporation transfers to the police upon request (mandate) or even voluntarily (through snitching).
By collecting and storing information through civil service agreements, private corporations de facto create a permanent digital registry that allows for the generation of a user personality profile, which can later be accessed by police services in criminal investigations.
Regarding fundamental protections in criminal and penal law, those that were supposed to be a counterbalance to the intrusive aspects of police investigations:
Fundamental protections require enhancement and the adoption of a more holistic approach to criminal and penal law, and even a shift in perception regarding what criminal and penal law is, is absolutely necessary. A first step in the perceptual shift that should occur in people's minds is to consider that the use of a smartphone to chat on Teams or Zoom is potentially a matter falling under criminal and penal law.
The right to anonymity: although the right to anonymity is the cornerstone of the right to privacy and a gateway to other fundamental rights, the right to anonymity does not find real application in practice since anonymity online, but also in everyday life, is increasingly fictitious.
Chain of custody: it is increasingly difficult to prove the origin of digital evidence or the integrity of digital evidence, particularly considering that digital evidence is even more malleable than physical evidence and can be subject to alterations, sometimes undetectably.
Exclusion of evidence: case law seems to prioritise the use of evidence obtained in an obscure or questionable manner, rather than its exclusion. In theory, the judge must carry out a “case-by-case” analysis, but in reality, the acceptance of such evidence is much more frequent than anticipated.
The transition from investigation to pre-investigation: traditionally, to initiate a police investigation under Canadian law, the police must have reasonable grounds to suspect that the person has committed a crime. Today, the constant 24/7 collection of a huge amount of data on the individual bypasses this protection granted by the State to the individual, as this type of collection requires a simple "I accept" of the terms of use of an electronic device or a digital application, and that’s it, the game is on: the investigation on all of you begins. This investigation is now ongoing and is equivalent to a pre-investigation carried out in advance, waiting to be consulted by the police at the opportune moment.
Digital identity and its integration into citizens’ lives: it is sold to the public as a convenience that facilitates citizens' lives and access to government services, but it will be used to gather and centralise an impressive amount of evidence that can be used in criminal and penal investigations. An effort to create and implement a federated digital identity is currently being carried out by the civil sphere, with the aim of consolidating a multitude of information ranging from traditional legal identity to the integration of behavioral, economic, biometric and other innovations coming from the new digital infrastructure. Once this digital identity has been created and officially implemented, the police will be able to access the individual's personal information, centralised under the label of "digital identity". As a result, the investigation or a significant part of the investigation that the authorities would have had to carry out in criminal and penal law is already there, ready to be used.
Sentient World Simulation: This is a technology that has existed for over 20 years, used by private and public actors, including the State, to duplicate the real lives of individuals and to automatically track past events in the real world, in real time. It is a technology that simulates the real world, the simulation being fed with data and intelligence from all sources. This simulation creates a virtual copy of you and observes how your copy (your digital clone) interacts with the digital copy of other individuals, with real-world institutions or with events that have happened in real life. Such level of intrusiveness, which is difficult to comprehend and is not publicly debated, makes current protections essentially theoretical.
A few comments from the experts who examined the doctoral thesis
Arthur Oulaï
is a professor at the Faculty of Law at the University of Sherbrooke since 2007. He is co-director of the Specialized Graduate Diploma in Business Law and Corporate Risk (DARE).
Professor Oulaï is a researcher at the Centre for Research on Regulation and Governance Law (CRDG) and a researcher at the Centre for Interdisciplinary Research in Cybersecurity at the University of Sherbrooke and the Group for Dispute Prevention and Resolution (GPRD).
Professor Oulaï is also a member of the Centre for International and Defence Policy (CIDP) at Queen's University.
"Mr. Popa is assured of making a valuable contribution with his thesis. Its practical interest is undeniable, particularly due to an analysis of both Canadian and French case law in criminal and penal law."
"As for its theoretical interest, it is real, the candidate having engaged in a rare substantial analysis of widespread surveillance through data gathering thanks to the progress of digital tools."
"He also proposes some avenues that should lead to a strengthening of the protection of fundamental rights."
Review report for the defence of the doctoral thesis
Review report for the defence of the doctoral thesis :
"The thesis is structured around three chapters that allow for the assessment of the extent of digital evidence gathering, identifying and addressing the legal issues raised in criminal and penal matters.
The first chapter examines the "new digital infrastructure" and the legislative provisions that encourage widespread surveillance.
The second chapter highlights the interaction between the police, private corporations, and intelligence services in a vast intelligence-sharing space.
The last chapter outlines a number of avenues for ensuring the protection of fundamental freedoms."
Doctoral thesis defence report, December 18, 2024 :
"Professor Arthur Oulaï highlights the quality of the work done by Mr. Popa. He has endeavoured to highlighting the extent of the surveillance carried out during police investigations aimed to gathering evidence."
Review report for the defence of the doctoral thesis :
"The thesis as a whole presents a critical portrait of mass surveillance. Despite the existence of judicial control over police conduct to 'maintain the rule of law and prevent State abuses and arbitrary infringements of individuals’ fundamental rights and freedoms' (p. 70), it struggles to provide the expected protection."
"Mr. Popa deserves credit for providing a thorough examination of the new tools for gathering digital evidence in criminal and penal matters."
Doctoral thesis defence report, December 18, 2024 :
“In addition to noting the omnipresence of data gathering that ensues, Mr. Popa has gone beyond the usual narrow approaches to enrich his study with an analysis that integrates criminal law and civil law, thus highlighting the unsuspected role of private corporations in this approach of surveillance by police forces both in France and in Canada. Mr. Popa thus makes a real contribution to legal analysis in this field.”
Doctoral thesis defence report, December 18, 2024 :
"Professor Oulaï was keen to point out that writing this thesis was certainly an intellectual exercise for Mr. Popa, but also a personal commitment to raising awareness of the importance of respecting fundamental rights in the context of police investigations boosted by the power of information technologies."
Olivier Décima
is a professor of private law and criminal sciences at the Faculty of Law and Political Science at the University of Bordeaux since 2012.
He was a professor of law at the University of Rennes 2 in 2011, after having been a lecturer there since 2009.
Since 2016, Professor Décima has been co-director of the Masters’ degrees in Criminal Law and Criminal Sciences and co-director of the Master's 2 in Advanced Criminal Law since 2014. From 2016 to 2019, he was Assistant Director of the Humanities and Social Sciences Research Department at the University of Bordeaux.
Professor Décima is Director of the Law and Social Transformations Research Department at the University of Bordeaux.
"Professor Olivier Décima […] mentions the great richness of the thesis, which will probably constitute a path to explore and deepen in future research work. The subjects covered are indeed very numerous."
Professor Décima "highlights that one of the interests of the study lies paradoxically in the proving of massive data surveillance, which had never before been demonstrated in this way."
Doctoral thesis defence report, December 18, 2024
Review report for the defence of the doctoral thesis :
"The ambition of this research must be emphasized: the subject is both very broad and of great societal and legal importance."
Review report for the defence of the doctoral thesis :
"Mr. Popa's study is driven by strong convictions, that he knows how to convey to the reader."
Review report for the defence of the doctoral thesis :
"Through its ambition and its multidisciplinary or comparative contribution, Mr. Popa's thesis certainly contributes to the advancement of knowledge."
Review report for the defence of the doctoral thesis:
"I fully agree with the conclusions of the thesis. Some of them could be developed or clarified in future work."
Édouard Verny
is a professor at the University of Paris-Panthéon-Assas since 2015. He was also a professor of law at the University of Rennes from 2003 to 2015.
Professor Verny is co-director of the Master's program in Criminal Law and Criminal Procedure. He co-directs the Institute of Judicial Studies, a center that prepares students for the entrance exam to law schools and the competitive examination for admission to the Schools for magistrates, gendarmerie officers, and police commissioners.
Professor Verny is director of the Institute of Criminology and Criminal Law.
"The thesis addresses a complicated and important subject. The author does not shy away from any of its difficulties and even undertakes to consider it using a comparative approach, confronting very different and complex legal systems."
"The stakes of the covered subject defy time and space, making these comparisons and exchanges of reflection not only very fruitful but even essential."
"above all, the great merit of the author of this thesis must be highlighted, who, without ever taking the easy way out, undertakes rigorous and convincing legal analyses."
Review report for the defence of the doctoral thesis
Doctoral thesis defence report, December 18, 2024 :
"This thesis addresses a subject of considerable and growing importance, both challenging and of great interest."
"The issues raised by the subject are clearly presented, while the applicable texts, the decisions rendered, and the doctrinal reflections are studied."
Doctoral thesis defence report, December 18, 2024 :
"The author convincingly adopts a fruitful interdisciplinary approach. A balance is advocated between the legitimate prerogatives of public authorities and the necessary protection of privacy."
Review report for the defence of the doctoral thesis :
The author "supports, and he can only be approved, a realistic and moderate admission of the use of new technologies during investigations or even simple surveillance."
Review report for the defence of the doctoral thesis :
"The author has confronted, in a very convincingly manner, a twofold challenge: writing a legal thesis that is credible on the technological aspects and that makes its study engaging for both specialists in legal matters and professionals in data collection and processing techniques who will understand the important and complex legal issues of their work."
Preliminary review report for the defence of the doctoral thesis :
"This thesis addresses a subject of considerable and growing importance."
"It studies the adaptation of legal rules to constantly evolving technologies that offer investigators unprecedented powers of investigation, but which must respect legal principles enshrined in texts at every level of the hierarchy of norms, and which frequently prove to be inevitably incomplete or even outdated."
"The subject of this doctoral research is therefore both difficult and of great interest."
Doctoral thesis defence report, December 18, 2024 :
"Mr. Verny renews his compliments to Mr. Popa, congratulating him on the high quality of his ambitious and accomplished thesis."
Review report for the defence of the doctoral thesis :
"The subject is treated in an ambitious manner as both aspects related to administrative procedures and those related to criminal procedures are studied."
Review report for the defence of the doctoral thesis :
This thesis represents "a very important work with an undeniable legal contribution."
"The plan proves to be coherent and rigorous. It is original and lends itself to reflections that go beyond a simple description of the studied legal systems."
Review report for the defence of the doctoral thesis :
"The publication of this thesis would have two advantages:
- firstly, it would enable North American lawyers to gain a better understanding of European law (particularly French law), and vice versa;
- secondly, it would facilitate the necessary—and difficult—mutual understanding between lawyers on the one hand and computer scientists and specialists in electronic communications on the other."
Charlotte Claverie-Rousset
is a professor of private law and criminal sciences at the Faculty of Law and Political Science at the University of Bordeaux since 2013. She is a member of the Bordeaux Institute of Criminal Sciences and Justice.
Professor Claverie-Rousset is the director of the Institute of Judicial Studies, which prepares students for the competitive entrance exam to the judiciary and the entrance exam to the School of Lawyers.
She is the president of the jury for the Certificate of Aptitude for the Legal Profession.
Professor Claverie-Rousset is the co-director of the Master's degree in Economic Criminal Law (specialization in criminal business law).
"The subject of digital evidence is very broad, but Mr. Popa seems to have managed to ‘cover it all’."
"This demonstrates, in addition to an excellent aptitude for legal reasoning, technological knowledge of how various digital tools function."
"The rigour and precision of Mr. Popa's conclusions are commendable."
Review report for the defence of the doctoral thesis
Doctoral thesis defence report, December 18, 2024
"Professor Claverie-Rousset […] begins by thanking Mr. POPA and his thesis supervisor, Olivier Décima, for inviting her to this thesis defence."
"It gave her the opportunity to read an outstanding doctoral work."
"She then congratulates the doctoral candidate for the quality of his work."
"This is a major research project, which does not forget to take into account European Union law, which is part of the French legal system."
"This is a work that will be very useful to practitioners."
Review report for the defence of the doctoral thesis :
"the developments relating to pre-investigation and pre-crime are particularly interesting and illustrate the philosophical, sociological and legal differences between North American countries and Europe."
Review report for the defence of the doctoral thesis :
"Some of the proposals seem really relevant and feasible, for example in terms of rigorous protocols for digital evidence gathering methods, mandatory training for judges on technological matters, etc."
Review report for the defence of the doctoral thesis :
"The research question is relevant. While the issue of the protection of fundamental rights in criminal proceedings, particularly the right to privacy, is often addressed in light of new investigative techniques, few studies of this magnitude had been previously conducted. Mr. Popa therefore chose his subject well."
Review report for the defence of the doctoral thesis :
"Through its 'holistic' approach, to use Mr. Popa's terminology, the thesis undeniably advances knowledge."
"This work will be useful both to academics and to police officers, lawyers or magistrates."
Review report for the defence of the doctoral thesis :
"Mr. POPA's thesis is very well done. The presentation is impeccable."
"The writing style is clear and precise, very pleasant to read."
"The writing skills are evident."
Review report for the defence of the doctoral thesis :
"The research conducted by Mr. Popa is undeniably very serious."
"The comparison between the Quebec system and the French system is rich. Mr. Popa has the merit of carefully considering European Union law, which is applicable in France."
Review report for the defence of the doctoral thesis :
"I think this is a very good thesis."
"The argument is clear and precise, well-documented. The issues at stake are perfectly presented."
"The comparison between Quebec law and French law is not artificial."
"The author makes various proposals that clearly contribute to the science."
Vincent Gautrais
is a lawyer, member of the Quebec Bar, a full professor at the Faculty of Law of the University of Montreal and a researcher at the Center for Research in Public Law (CRDP), of which he was director from 2014 to 2022. Since 2015, Professor Gautrais has held the L. R. Wilson Research Chair in information technology and e-commerce law. He has been teaching several courses in business law and technology law since 1992.
From 2005 to 2015, Professor Gautrais held the University of Montreal's Chair of Excellence in Security and Electronic Business Law. Previously, he was a law professor at the University of Ottawa, common law section.
"According to Vincent Gautrais, the thesis certainly constitutes a significant amount of work. It also represents in-depth knowledge combining theoretical debates and a practical approach."
Doctoral thesis defence report, December 18, 2024
"The thesis aims above all to show that technology is profoundly changing the dynamics of control imposed by the State."
"Since these technologies are not neutral, they alter rights and erode principles that have taken centuries to establish."
Review report for the defence of the doctoral thesis
Review report for the defence of the doctoral thesis :
"The work is far-reaching. It provides an in-depth overview of the literature, certainly presenting a very substantial amount of work that is important to highlight."
"One of the contributions is that it makes connections between fields that rarely intersect."
Doctoral thesis defence report, December 18, 2024 :
"Professor Vincent Gautrais began by stating that in the summer of 2024 he had the opportunity to read a preliminary version of Mr. Claudiu Popa’s thesis following the procedures applicable at the University of Sherbrooke; a thesis that has since been significantly modified based on the comments submitted."
"He therefore thanks this integration of previous comments, which resulted firstly in a fairly substantial restructuring of the thesis, particularly in the preliminary remarks, and secondly in the addition of approximately 60-70 pages of new content."
"This is all the more appreciated, given that Vincent Gautrais had already stated that the thesis could nevertheless be defended as it stands."
Preliminary review report for the submission of the doctoral thesis :
"In terms of substance, the arguments put forth by the candidate in this thesis appear very coherent and the "colour" of the thesis, according to which individuals rights are being challenged due to technologies, are often convincing, often justified."
Alexandre Stylios
is a professor at the Faculty of Law of Laval University since 2011, where he teaches criminal law. He is a graduate of the Faculty of Law of Paris II – Assas University, Cornell Law School and the Faculty of Law of the University of Montreal.Professor Stylios was Director of Graduate Programs at the Faculty of Law of Laval University from 2019 to 2021. Since 2019, he has been the Secretary General of the International Committee of French-speaking Panelists.
"This is a well-written thesis, richly and carefully documented."
"Mr. Popa has written an in-depth thesis, drawing on numerous sources."
"The scientific apparatus is impressive."
"The comparative law analysis is rigorously conducted."
Review report for the defence of the doctoral thesis
Doctoral thesis defence, December 18, 2024 :
Chapters 1 and 2, "I found them remarkable," they "deserve a 10 out of 10. This thesis will be on my desk and it will be an important working tool."
Doctoral thesis defence report, December 18, 2024 :
Professor Alexandre Stylios "insists on the relevancy and importance of the subject, particularly with regard to its repercussions on fundamental rights."
"He praises a thesis based on impressive research work, richly documented, and based on a comparative law approach."
Doctoral thesis defence report, December 18, 2024 :
"The work presented remains very convincing. Professor Stylios reiterated his congratulations for the exceptional quality of the research, highlighting in particular the impressive scientific apparatus of the thesis."
Doctoral thesis defence report, December 18, 2024 :
“In terms of substance, Professor Stylios believes that the first two parts of the thesis lay a solid foundation for understanding the issues and problems associated with the apprehension of digital data and intelligence for the purposes of evidence-gathering by prosecuting authorities.”
“The work done by the candidate is impressive.”
Review report for the defence of the doctoral thesis :