Memory Illusions and Cybernannies

A while back I read a couple of very interesting books. One was Dr Julia Shaw’s The Memory Illusion. Dr. Shaw describes herself as a “memory hacker” and has a You Tube presence where she explains a number of the issues that arise in her book.

The other book was The Cyber Effect by Dr Mary Aiken who reminds us on a number of occasions in every chapter that she is a trained cyberpsychologist and cyberbehavioural specialist and who was a consultant for CSI-Cyber which, having watched a few episodes, I abandoned. Regrettably I don’t see that qualification as a recommendation, but that is a subjective view and I put it to one side.

Both books were fascinating. Julia Shaw’s book in my view should be required reading for lawyers and judges. We place a considerable amount of emphasis upon memory assisted by the way in which a witness presents him or herself -what we call demeanour. Demeanour has been well and truly discredited by Robert Fisher QC in an article entitled “The Demeanour Fallacy” [2014] NZ Law Review 575. The issue has already been covered by  Chris Gallavin in a piece entitled “Demeanour Evidence as the backbone of the adversarial process” Lawtalk Issue 834 14 March 2014 http://www.lawsociety.org.nz/lawtalk/issue-837/demeanour-evidence-as-the-backbone-of-the-adversarial-process

A careful reading of The Memory Illusion is rewarding although worrisome. The chapter on false memories, evidence and the way in which investigators may conclude that “where there is smoke there is fire” along with suggestive interviewing techniques is quite disturbing and horrifying at times.

But the book is more than that, although the chapter on false memories, particularly the discussions about memory retrieval techniques, was very interesting. The book examines the nature of memory and how memories develop and shift over time, often in a deceptive way. The book also emphasises how the power of suggestion can influence memory. What does this mean – that everyone is a liar to some degree? Of course not. A liar is a person who tells a falsehood knowing it to be false. Slippery memory, as Sir Edward Coke described it, means that what we are saying we believe to be true even although, objectively it is not.

A skilful cross-examiner knows how to work on memory and highlight its fallibility. If the lawyer can get the witness in a criminal trial to acknowledge that he or she cannot be sure, the battle is pretty well won. But even the most skilful cross-examiner will benefit from a reading of The Memory Illusion. It will add a number of additional arrows to the forensic armoury. For me the book emphasises the risks of determining criminal liability on memory or recalled facts alone. A healthy amount of scepticism and a reluctance to take an account simply and uncritically at face value is a lessor I draw from the book.

The Cyber Effect is about how technology is changing human behaviour. Although Dr Aiken starts out by stating the advantages of the Internet and new communications technologies, I fear that within a few pages the problems start with the suggestion that cyberspace is an actual place. Although Dr Aiken answers unequivocally in the affirmative it clearly is not. I am not sure that it would be helpful to try and define cyberspace – it is many things to many people. The term was coined by William Gibson in his astonishingly insightful Neuromancer and in subsequent books Gibson imagines the network (I use the term generically) as a place. But it isn’t. The Internet is no more and no less than a transport system to which a number of platforms and applications have been bolted. Its purpose –  Communication. But it is communication plus interactivity and it is that upon which Aiken relies to support her argument. If that gives rise to a “place” then may I congratulate her imagination. The printing press – a form of mechanised writing that revolutionised intellectual activity in Early-modern Europe – didn’t create a new “place”. It enabled alternative means of communication. The Printing Press was the first Information Technology. And it was roundly criticised as well.

Although the book purports to explain how new technologies influence human behaviour it doesn’t really offer a convincing argument. I have often quoted the phrase attributed to McLuhan – we shape our tools and thereafter our tools shape us – and I was hoping for a rational expansion of that theory. It was not to be. Instead it was a collection of horror stories about how people and technology have had problems. And so we get stories of kids with technology, the problems of cyberbullying, the issues of on-line relationships, the misnamed Deep Web when she really means the Dark Web – all the familiar tales attributing all sorts of bizarre behaviours to technology – which is correct – and suggesting that this could become the norm.

What Dr Aiken fails to see is that by the time we recognise the problems with the technology it is too late. I assume that Dr Aiken is a Digital Immigrant, and she certainly espouses the cause that our established values are slipping away in the face of an unrelenting onslaught of cyber-bad stuff. But as I say, the changes have already taken place. By the end of the book she makes her position clear (although she misquotes the comments Robert Bolt attributed to Thomas More in A Man for All Seasons which the historical More would never have said). She is pro-social order in cyberspace, even if that means governance or regulation and she makes no apology for that.

Dr Aiken is free to hold her position and to advocate it and she argues her case well in her book. But it is all a bit unrelenting, all a bit tiresome these tales of Internet woe. It is clear that if Dr Aiken had her way the very qualities that distinguish the Digital Paradigm from what has gone before, including continuous disruptive and transformative change and permissionless innovation, will be hobbled and restricted in a Nanny Net.

For another review of The Cyber Effect see here

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CTC 2017 – The Online Court

This year I was invited to present a paper at the National Center for State Courts biannual conference – Courts Technology Conference 2017. I was asked to present a paper on the development of the Online Court project in England and some of the thinking behind that project.

I have had an interest in this project since Professor Richard Susskind’s report on February 2015 and have followed the reports issued by Lord Briggs. There are two things of particular significance.

The first is that the project demonstrates the disruptive effect of technology and the way in which the deployment of technological solutions may result in quite significant changes in process without destroying or compromising the underlying  philosophies of a just system of dispute resolution provided by the State.

The second thing is the types of technology that may be deployed to make the online court work. The paper I prepared for the Conference looked at these two aspects of the matter along with a consideration of some of the positives and potential negatives of the project. Most of the negatives are in fact answerable.

The technological solutions that I considered were conceptual only and I wish I could have attended the July Online Courts hackathon in London. It is highly likely that the technical section of my paper would have had a completely different approach.

Here is a copy of the paper:

The powerpoint slides that were a part of the presentation follow

The session was live streamed and recorded and the video follows

I hope that this material is useful.

 

Accessing Justice

I write this on 1 September 2017 and New Zealand is in the throes of an election campaign. I dislike the way that this has all developed. The politics of personality rather than policy seem to predominate. The news media whip themselves up into a frenzy – speculating on poll outcomes, the shape of Parliament with little thought about what is going to happen to the country as a whole. Because of our bizarre electoral system deals have to be struck which could mean that a minor party often gets the final say on which party governs.

The contest is between two centrist parties. National is slightly to the right of centre – Labour to the left. National can point to a record of experience in government – the last nine years on the Treasury benches. Labour can point out all the things that have gone wrong or which have been left unattended – not the least among them problems with sufficiency and cost of housing and associated problems of inequity within society. One thing you can guarantee with Labour is that they will spend more taxpayers money and they will put up taxes. With one exception in the 1980’s this has been their model.

Both parties have an unspoken premise and that is that they advocate social justice and that is generally achieved as far as National is concerned by macro-economic policy and by Labour by throwing large amounts of money at the problem.

But there are other justice issues – ones that particularly concern me. They are fundamental access to justice issues. Putting it simply, the model that we have for a state-provided dispute resolution system hasn’t changed since Dicken wrote “Bleak House” in the nineteenth century. The system is complex, paper-based, arcane and requires expert assistance in the form of lawyers to navigate the intricacies of the system and to bring a case to a hearing.

I see it as part of the State’s obligation in a society like ours that values the Rule of Law to provide an effective and accessible system for the resolution of disputes between citizens. And this isn’t happening. The cost of entry to undertake a civil dispute that is beyond the jurisdiction of the Disputes Tribunal will inevitably involve a lawyer and litigation lawyers do not come cheap.

Over the years there have been a number of inroads into the availability of legal aid both for criminal and civil matters. The reality is that legal aid will not be available to many in the middle socio-economic groups which acts as a disincentive to pursue what might otherwise be a valid claim.

Those who are bold enough to represent themselves – and they have a right to do so – see Louise Grey “Not for the Faint of Heart: The Right to Self-Representation in New Zealand” (June 25, 2017). Victoria University of Wellington Legal Research Paper, Student/Alumni Paper No. 25/2017.   – have to navigate through the procedural complexities contained in the High Court or District Court Rules which effectively are 600 + page “user manuals” for specialists.

So as the politicians have been promising the electorate the earth – or dodging the detail as seems to be the case with the Labour party – I have been waiting to hear what is going to be done about the fact that a substantial sector of the community does not have access to justice.

There are solutions available. The problem is that the system is anything but amenable to change. This is reflected in the fact that the use of technology – when it is made available – is within the context of the existing “Bleak House” model. Thus we have systems that imitate paper in the Electronic Courts and Tribunals Act which I have critiqued here and the practice notes for the use of Electronic Common Bundles and Electronic Casebooks.

The Courts (Remote Participation) Act 2010 addresses some aspects of the “tyranny of distance” but is still premised upon Court provided AVL technology (rather than the multitude of AV applications such as Skype) and a centralised location where business must be transacted – the Courthouse although to their credit some Judges use Skype for case conferences.

Part of the problem is that because we operate a “paper by default” system geographical location for the purposes of filing and storage of the “court file” remains a primary factor in the management of litigation. “Digital by default and by design” means that the association of kinetic files with a geographical location no longer determines where the file is located and where material must be filed. It eliminates the need for a Courthouse as the “back office” for litigation management.

But even although the Electronic Courts and Tribunals Act provides for the use of digital material there is nothing in that legislation that suggests that the “Bleak House” model has changed. In addition there are no facilities for electronic filing, notwithstanding that there have been a number of unsuccessful and expensive attempts by the Ministry of Justice and its predecessors to implement them.

I would like the politicians seeking my vote to think about and address the issues surrounding the fact that citizens are being deprived of access to justice for economic and procedural reasons not to mention a lack of expertise in the way that the system works. Considerations such as more availability of legal aid, a better resourced hearing system, less delay between commencement of proceedings and a hearing would be a start.

The problem is not with the Court or with the Judges, but the system itself which I have characterised as the Bleak House model. When this model comes into collision with the realities of the digital paradigm, speedy progress becomes difficult.

In  England proposals for a “digital by default and by design” Court for low value civil claims (less than 25,000 pounds) is being seriously considered. The use of digital systems has enabled those advocating the system – Professor Richard Susskind and Lord Briggs – to revisit the litigation model with some radical proposals. The court hearing before a Judge (which would be done online) would be the least desirable outcome. Instead resources would be deployed using online systems, legal expert systems, predictive analytics and machine learning to provide litigants with some indicia of the success or otherwise of their claim, and guidance on what to do to proceed with the matter should a claim be made. The emphasis would be upon conflict resolution, conflict containment and an identification of the real issues – all done on-line with the assistance of a skilled mediator. The proposals are premised primarily upon litigants representing themselves, although they can seek the assistance of a lawyer should they want to. But the cost of entry – legal expenses and court costs – would be eliminated.

Such a model is more in keeping with the realities of the digital paradigm and deploys technological solutions for an innovative revisiting of the litigation process.

Last year I discussed these proposals with some of those seeking election. I have heard nothing further. None of the parties in their answers to questions put by the Law Society have suggested any concrete proposals to look at some of the systemic fundamentals of the Court system.

The irony is that later this month I shall be at a Conference in the United States discussing these very issues – There seems to be more of an appetite for innovation in the state based Court process elsewhere than in New Zealand.

A further irony lies in the facts that alternative dispute resolution has been around for a while and taking ADR processes online has been a recent development. In this regard the Complete Online Dispute Resolution Service (CODR) has recently been established by Michael Heron QC. This service has had some positive outcomes – and a backgrounder to the service may be found here .

One wonders if private innovation is going to overtake and replace the State’s obligation.