Artificial Intelligence and Legal Practice

I was invited to deliver a paper on the impact of artificial intelligence on lawyers and legal practice. There has been a considerable amount of concern that automated systems are going to replace lawyers and that sentences will be imposed by computer. I don’t see that as a future.

Along with Richard Susskind I see a more nuanced outcome that will involve the automation of repetitive tasks and a redeployment of lawyers into other areas of legal activity.

The Paper was delivered to the NZ Law 25th Anniversary Conference in Auckland on 29 September 2017. A copy of the paper and the presentation follow.

 

 

 

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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

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.

Medium Messages

A new Bill has been introduced to the New Zealand Parliament. It is called the Legislation Bill. It is meant to be the “one-stop shop” for the law relating to legislation. It is described in a New Zealand Law Society posting as “one legislation bill to bind them all”.

The Bill has some very good proposals. One relates to secondary legislation.  It will  give New Zealand a single, official, public source of legislation, excluding only legislation made by local authorities.

Over 100 agencies are empowered to make secondary legislation on a wide range of matters such as food standards and financial reporting standards. There is no single source for the legislative instruments, many of which are published on agency websites or in gazette notices. The Bill will make it easier to find and access secondary legislation by requiring it to be published on the New Zealand Legislation website alongside Acts of Parliament. This is an excellent move. It will enhance easy access to legal information.

In addition the Bill proposes to replace the Interpretation Act 1999. One of the terms that the Interpretation Act defined was “writing”. That definition reads as follows:

writing means representing or reproducing words, figures, or symbols in a visible and tangible form and medium (for example, in print).

Now that may have been excusable in legislation enacted in 1999 but in fact that definition was placed in the Interpretation Act in 2003 by section 38 of The Electronic Transactions Act 2002. When I saw that the Interpretation Act was being repealed and updated in the Legislation Bill I thought that we had a chance to see an updated medium neutral definition of writing.

But lo – here is the “new” definition which reads as follows

writing means representing or reproducing words, figures, or symbols in a visible and tangible form and medium (for example, in print)

No change at all. So why is this a problem? Simply that it does not reflect the reality of written material in the Digital Paradigm. It holds to the old association of the message (in written form) with the medium (paper) hence the exemplification “in print”.

I have no difficulty with the suggestion that writing is a representation of words, figures or symbols. It is simply a means of encoding and preserving the ephemerality that is oral language or orally based concepts. And of course, writing has to be visible.

But does it have to be tangible?

This is where we run into a problem – one that the law seems to have difficulty understanding in the electronic age. The issue of tangibility has nothing to do with the message. It has everything to do with the medium. The inextricable and historical association of the medium with the message is perpetuated in the requirement that the message be tangible.

This overlooks (or ignores) the reality of information in the digital paradigm. This is what I have said elsewhere ( see Collisions in the Digital Paradigm: Law and Rulemaking in the Internet Age) on the topic:

Electronic data is quite different to its pre-digital counterpart.  Some of those differences may be helpful to users of information.  Electronic information may be easily copied and searched but it must be remembered that electronic documents also pose some challenges.  Electronic data is dynamic and volatile.  It is often difficult to ensure that it has been captured and retained in such a way as to ensure its integrity.  Unintentional modifications may be made simply by opening and reading data.  Although the information that appears on the screen may not have been altered, some of the vital metadata which traces the history of the file – and which can often be incredibly helpful in determining its provenance and may be of assistance in determining a chronology of the events, and when a party knew what they knew, – may have been changed.  To understand the difficulty that the digital paradigm poses for our conception of data it is necessary to consider the technological implications of storing information in the digital space.  It is factually and paradigmatically far removed from information recorded on a medium such as paper.

If we consider data as information written on a piece of paper it is quite easy for a reader to obtain access to that information long after it was created.  The only thing necessary is good eyesight and an understanding of the language in which the document is written.  It is “information” in that it is comprehensible. It is the content that informs.  Electronic data in and of itself does not do that.  It is incoherent and incomprehensible, scattered across the sectors of the electronic medium upon which it is contained.  In that state it is not information in that it does not and cannot inform.

Data in electronic format, as distinct from writing on paper, is dependent upon hardware and software.  The data contained on a medium such as a hard drive requires an interpreter to render it into human readable format.  The interpreter is a combination of hardware and software.  Unlike the paper document the reader cannot create or manipulate electronic data into readable form without the proper equipment in the form of computers.

There is a danger in thinking of electronic data as an object “somewhere there” on a computer in the same way as a hard copy book is in the library.  Because of the way in which electronic storage media are constructed it is almost impossible for a complete file of electronic information to be stored in consecutive sectors of the medium.  Data on an electronic medium lacks the linear contiguity of a page of text or a celluloid film. An electronic file is better understood as a process by which otherwise unintelligible pieces of data are distributed over a storage medium, assembled, processed and rendered legible for a human reader or user.  In this respect “the information” or “file” as a single entity is in fact nowhere.  It does not exist independently from the process that recreates it every time a user opens it on a screen.

Computers are useless unless the associated software is loaded onto the hardware.  Both hardware and software produce additional evidence that includes, but is not limited to, information such as metadata and computer logs that may be relevant to any given file or document in electronic format.

This involvement of technology makes electronic information paradigmatically different from traditional information where the message and the medium are one.  It is this mediation of a set of technologies that enables data in electronic format – at is simplest, positive and negative electromagnetic impulses recorded on a medium – to be recorded into human readable form.  This gives rise to other differentiation issues such as whether or not there is a definitive representation of a particular source digital object.  Much will depend, for example, upon the word processing programme or internet browser used.

The necessity of this form of mediation for information acquisition in communication explains the apparent fascination that people have with devices such as Smartphone’s and tablets.  These devices are necessary to “decode” information and allow for its communication and comprehension.  Thus, the subtext to the description of electronically stored footage which seems to suggest a coherence of data similar to that contained on a piece of paper cannot be sustained.

So why not forget about tangibility and this medium focussed approach to information. Interestingly enough a solution is proposed in the definition in the Bill which contains the following parenthetical remark

(but see Part 4 of the Contract and Commercial Law Act 2017, which provides for meeting written requirements by electronic means)

So what does that say. Simply this

A legal requirement that information be in writing is met by information that is in electronic form if the information is readily accessible so as to be usable for subsequent reference.

Not quite a solution, but getting there. It focusses upon two important concepts that underly any information in writing. First – it must be accessible. Second, there is the concept of utility.

So perhaps a 21st Century medium neutral definition of writing should go something like this

Writing means representing or reproducing words, figures, or symbols in a visible form and in such a format as to be readily accessible and usable for subsequent reference.

There is no need for tangibility. We have moved on from the inextricable message\medium association. But many lawyers and lawmakers seem to be unaware of the unique and paradigmatically different qualities surrounding information in the Digital Paradigm.

 

 

Misunderstanding the Internet

 

I heard an interesting interview on the radio on Saturday last. Kim Hill was interviewing Jonathan Taplin. Taplin has written a book entitled Move Fast and Break Things about the Internet and what is currently wrong with it.

First, a confession. I haven’t read Move Fast and Break Things. What I know about Mr Taplin’s views are what I heard him say on the radio and a report of the interview on the RadioNZ website and what I have to say is based on what I heard on the radio rather than a reading of his book. But it does sound to me that Mr Taplin occupies a space along with a number of other disenchanted by the Digital Paradigm including Andrew Keen who wrote The Internet is Not the Answer, Nicholas Carr who wrote The Shallows and Mary Aiken who wrote The Cyber Effect. A common theme among these writers seems to be that for one reason or another the Internet has lost its way, failed to fulfil its promise or that it has been hi-jacked. This last view is that expressed by Mr Taplin.

I don’t have a problem if that is what he thinks. But I do have a problem with some of his assertions of fact which simply do not stand up to scrutiny. Mr Taplin seems to engage in sweeping generalisations to support his position and then argues from that point. In other cases he misinterprets facts in a way that cannot be supported. But his main problem is that he fails to understand the nature of paradigmatic change and that in such an environment things are not going to remain the same, and old models, ways of doing things, concepts and values are either going to be swept away or are gradually going to be eroded and replaced with something else.

Let us look at some of his early assertions that he made on the broadcast. He claims that the Internet originated as the “hipster” project of a group of people who wanted to decentralise control. “Stewart Brand (author of The Whole Earth Catalog, a book which anticipated the internet) was Ken Kesey’s partner in the acid tests, Steve Jobs acknowledges taking LSD. It was a bunch of hippies” – or so Mr Taplin asserts.

Anyone who has studied the history of the Internet will agree that decentralisation was one of the early goals of the development of the network that later became the Internet, originally undertaken by DARPA – the Defence Advanced Research Projects Agency, an agency of the US Department of Defense. DARPA supported the evolution of the ARPANET (the first wide-area packet switching network), Packet Radio Network, Packet Satellite Network and ultimately, the Internet and research in the artificial intelligence fields of speech recognition and signal processing. Hardly a bunch of hippies. And were Brand, Kesey and Jobs involved in this early development. No they were not. Jobs involvement with the Internet came much later. In 1985 he suggested that the most compelling reason for most people to buy a computer would be to link it to a nationwide communications network. But it wasn’t until 1996 that he predicted the ubiquity of the Web. In 1996 Google was still a research project at Stanford and Amazon had only just begun selling books.

What Mr Taplin conveniently ignores is the enormous contribution made by computer engineers and developers to the development of the Internet – people like Vint Cerf and Bob Kahn, Ray Tomlinson who developed email – although that is contested by Shiva Ayyadurai – Jon Postel, Ted Nelson, Tim Berners-Lee and Robert Caillau.

Rather he focussed upon the high profile and very successful entrepreneurs like Peter Thiel, Larry Page and Jeff Bezos. He suggested that they “all are libertarians. They were schooled on Ayn Rand’s work, in which the businessman hero architect is always impeded by the mob, by democracy, by government, by regulation, and he has to be free.”

My reading of Rand would suggest that there are aspects of libertarianism that are inconsistent with her objectivist views. In fact Ayn Rand has become a whipping girl for those who would condemn the forge ahead entrepreneurial spirit untroubled by regulatory systems or collectivist thinking. True, Rand has had an influence on the right and upon libertarianism although some of her views were atypical of rightwing conservative thought. For example she was pro-choice and an atheist. But Mr Taplin throws Ayn Rand into the mix for perjorative rather than evidential value.

Another interesting comment that Mr Taplin made had to do with data. Here is what the report from RadioNZ said

“The core business of Facebook is creating a giant database of information on 2 billion individual people, says Taplin.

“What is the raw material to manufacture a product? You – your desires. You’re willing to leave everything hanging out there and they’re willing to scrape it and sell it to advertisers. It’s called rent. They’re renting [Facebook’s] database.”

That is a degenerate form of capitalism if it’s capitalism at all, he says.

“It doesn’t create anything, you’re renting. That’s the end of capitalism and the beginning of feudalism.”

And that indeed was how it came across on the broadcast. The problem is that Mr Taplin fails to understand the nature of the Digital Paradigm and how it disrupts current business models. He suggests that the user is the raw material – based upon data that has been left behind. I disagree. The data is the raw material of the new digital product and indeed it does create something – a more thoroughly refined and granular understanding the of the nature of markets. Raw materials are necessary for any product. It is just that the raw material now is data in digital format.

What distinguishes digital data from iron ore (another raw material) is that iron ore is sold by the mining company to the refinery or smelter. Iron ore is like any other traditional form of property. You own it by, among other things, exclusive possession. You sell it and by doing so part with exclusive possession. That vests it in someone else.

Now with digital material you can part with possession of a copy but retain the original. The Digital Paradigm turns the traditional property model on its head. Two people can possess the same item of property. And it is here that the “rent” argument advanced by Mr Taplin falls apart. The rent argument only works if there is one instantiation of the property. The “owner” leases the property – be it land or a car – to the tenant or lessee. The owner parts with possession for a period of time. At a later stage the owner retakes possession – when the tenancy or lease comes to an end. But the owner, during the term of the rental does not have possession of the property.

Remember what I said about digital property – two people can possess the same item. That concept is part of the disruptive effect that the Digital Paradigm has on property concepts. Now to say that data is “rented” is using a concept that does not hold up in the Digital Paradigm. To equate renting data with a form of feudalism – which was based upon an exchange of an interest in land for the rendering of a duty – is historically and legally incorrect. And to say that using data does not create anything ignores the fact that data is the raw material – not the individual – and the data goes to creating a profile for any one of a number of purposes of which market research may be one.

So Mr.Taplin’s analogy – like so many attempts to draw analogies between the digital and pre-digital world – fails.

But there is a bigger picture in that paradigm shifts bring paradigmatic change. The Internet and all those myriad platforms that are bolted on to the backbone have revolutionised communication and have opened up a market for digital products. But the content that the Internet enables is only a part of the story.

To understand the nature of the paradigm we need to look below the content layer and comprehend the medium. For, as McLuhan said, the medium is the message. I am sure Mr. Taplin understands this. But what I think he has difficulty in accepting is that the old ways of doing things are going to be swept away. There will be a period of co-existence of the digital and the pre-digital but that won’t last long. The paradigmatically different properties of exponential dissemination, dynamic information, information persistence, permissionless innovation and continuing disruptive change are all factors built in to the technology and cannot be changed. At the risk of sounding deterministic these and other underlying technological qualities are what will drive the inevitability of change.

The music market with which Mr Taplin was familiar has changed dramatically and part of the problems suffered by the industry and those associated with it involved an unwillingness to adapt. iTunes got the idea and now people buy by the song rather than by the album. Adaptation by content providers means that Netflix thrives – despite geoblocking – on-demand has replace appointment viewing and content providers have finally “got it” that consumer demand is for content now – not next week. Hence “Game of Thrones” and “Walking Dead” are advertised in New Zealand as screening on the same day as in the US. The reason for this – the Digital Paradigm provided alternatives – piracy and Bittorrent.

The reality is that many old business models will have to adapt to survive. Those that do not will fall by the wayside. The new paradigm will usher in new industries and new opportunities. But in the Digital Paradigm, business will be done on a global scale rather than from a local storefront. And the result of that scale is that many new digital businesses will do very well such as Google and Facebook and Amazon. Mr Taplin laments the advantages that these companies have, that their power is unaffected by who is in government. But should successful businesses be a matter of concern. For sure, conspiracy theories will abound; the spectre of rampant capitalism will be conjured up. But isn’t this just envy speaking?

I really think we should be embracing the opportunities that the new technologies bring and look for ways in which we can enhance our lives in the Digital Paradigm rather than moaning about it. Because it is not going away.

Imitating Paper

The Electronic Courts and Tribunals Act 2016

The purpose of the Electronic Courts and Tribunals Act 2016 is to enable and govern the use of electronic technology in court and tribunal proceedings. It is overarching. All paper based processes in existing courts and tribunals may be interpreted as allowing electronic processes.
The Electronic Courts and Tribunals Act is posited upon the concept of functional equivalence – a theory which gives legal recognition to recording systems and their validation in a format other than paper. The Act in many respects reflects the principles that appear in the Electronic Transactions Act 2002 which did not apply to the Court system.
A central focus of the legislation is upon what is called a permitted document. The term “permitted document” means a document, including its associated process, in electronic form that is made by, or for use in, a court or tribunal. The purpose of the legislation is to facilitate the use of permitted documents in court and tribunal proceedings and allow existing references in enactments to documents to include permitted documents.
Not all documents are permitted documents and the legislation at section 4(2) lists those that do not qualify. These are:

(a) a document given on oath or by affirmation:
(b) a statutory declaration:
(c) a will, a codicil, or any other testamentary instrument:
(d) a power of attorney or an enduring power of attorney:
(e) a negotiable instrument:
(f) any notice required to be attached to any thing or left or displayed in any place:
(g) any warrant or other instrument authorising entry into premises or the search or seizure of any person or thing:
(h) any other document specified by the Governor-General by Order in Council made on the recommendation of the Minister:
(i) an item specified in any of paragraphs (a) to (h) that is required to be served by personal service.

The legislation effectively recognises that verification and authenticity of information contained in these classes of documents may only be provided by a tangible paper-based medium.
The Act does not mandate the use of electronic documents, although certain classes of persons yet to be defined in regulations may be required to use them.
The use of permitted documents requires the consent of the person using them although consent can be inferred from conduct. A person may not be compelled nor directed to use permitted documents. Thus, unless a person consents to the use of permitted documents it is paper by default.
Where there are requirements for information to be recorded, be in or be given in writing that information may be in a permitted document as long as it is readily accessible and useable for subsequent reference. This means that an electronic document must be accessible in the sense that it is not in archived or backup format and can be accessed presumably in native file format.
The legislation does recognise the dynamic nature of digital information and the reality that multiple copies may be made of a digital document that are identical to the “first” or source copy.
Where there is a requirement that multiple copies of information are to be provided, that requirement is met by providing a single electronic version of a permitted document and a requirement to provide information in a manner that complies with a paper based form met by permitted document if information is readily accessible and usable for subsequent reference.
Authentication and signature requirements provide a challenge for those used to verification of a document or its contents by a physical kinetic act such as affixing a seal or sign manual. How is that accomplished in a digital context?
Signature requirements for permitted documents are addressed in section 16 of the Electronic Courts and Tribunals Act 2016. An “electronic signature” or verification must adequately indicate the approval of the information and must be “as reliable as is appropriate given the purpose for which, and the circumstances in which, the signature is required.”
Importantly, electronic verification of a document is subject to an exception when one is witnessing a document. Witnessing requirements in a permitted document are met by an “electronic signature” if

a) The e-signature complies with the requirements of section 16
b) The e-signature adequately identifies the witness and indicates that the signature or seal has been witnessed
c) The e-signature is “as reliable as is appropriate given the purpose for which, and the circumstances in which, the signature is required.”

If a permitted document requires a seal, that requirement may be met by an electronic seal if

a) The seal adequately identifies the party attaching it and
b) “is as reliable as is appropriate given the purpose for which, and the circumstances in which, the seal is required.”

The language echoes that dealing with electronic signatures. It is to be noted that the requirements for electronic signatures and seals refer to the issue of reliability. Section 19 of the Act sets out certain presumptions as to reliability and an electronic signature is presumed to be reliable if:

(a) the means of creating the electronic signature is linked to the signatory and to no other person; and
(b) the means of creating the electronic signature was under the control of the signatory and of no other person; and
(c) any alteration to the electronic signature made after the time of signing is detectable; and
(d) where the purpose of the legal requirement for a signature is to provide assurance as to the integrity of the information to which it relates, any alteration made to that information after the time of signing is detectable.

However, any other way of establishing reliability is not excluded and may be used.
The Act also sets out rules for the retention of permitted documents , for the dispatch and receipt of permitted documents. These provisions duplicate the provisions of the Electronic Transactions Act 2002. The filing requirements dispense with the requirement that a document be filed in a particular office of the Court and allow for the filing of a permitted document at any place specified in the regulations. In addition the place for filing may be physical or electronic and may be centralised or located within the jurisdiction of the Court or Tribunal.
Some important observations need to be made.

1. Although the Act has commenced it is not operative. Section 6 requires the Governor General by Order in Council made on the recommendation of the Minister to specify the Courts, tribunals or particular jurisdictions of Courts and Tribunals to which the Act applies. As matters stand, no such Order has been made. Once proper systems are in place to handle electronic filing the necessary orders will be made.

2. Will the Act significantly change Court processes. Except for the changes to place of filing rules, things will largely remain the same. This is because the legislation is imitative of existing processes. Imitative use of technology preserves existing processes and procedures but allows the same objectives to be achieved by electronic means. On the other hand the innovative use of technology allows for the introduction of disruptive and different procedures and processes enabled by the new technologies which ultimately result in a transformative and improved outcome.

3. Thus the legislation maintains the model of the paper based court system and adds a limited form of digital communications in the form of permitted documents – an electronic equivalent of paper.

If it was the intention of the Legislature to maintain the model of the paper based court system and add a limited form of digital communications in the form of permitted documents, the Electronic Courts and Tribunals Act has succeeded. But in reality the Act neither lives up to its name nor its promise. It does not, as its name might suggest, create or enable fully electronic courts or tribunals. All it allows is an electronic equivalent for paper. All the legislation does is to imitate paper.