Paperless Lawyers, Paperless Courts

A temptation for lawyers is to use technology to mirror paper-based practices. Technology merely means that the screen becomes the functional equivalent of paper and underlying behaviours relating to information do not change. What should make the utilisation of technology different is that underlying the functional equivalent of a paper based file are all the tools and advantages that digital technologies can bring such as indexing searching on the fly annotating and so on.

Andrew Downie, a lawyer in Victoria, Australia, in February of 2014, blogged on the creation of an electronic brief – ahandy “how to” guide focusing particularly upon methods of converting documents and organising them using a computer system.

But electronic case files are not the exclusive preserve of counsel. In New Zealand there are several practice notes on the utilisation of electronic bundles of documents in court.  The Senior Courts Civil Electronic Document Protocol addresses the use of electronic documents in the Higher Courts in New Zealand. The Electronic Document Practice Note 2017 is intended to encourage and facilitate the use of electronic documents for civil cases in the Court of Appeal. The 2016 Practice Note “The Use of Electronic and Common Bundles and Electronic Casebooks in the High Court” sets out guidance about when an order should be made for a common bundle and/or casebook to be filed electronically in the High Court and the default directions that apply. It is to be read and interpreted consistently with the Senior Courts Civil Electronic Protocol.

The concept of functional equivalence is to the fore and it seems to me that one of the purposes of the practice note and the move towards electronic bundles is to save space and paper. This is consistent with the imitative approach adopted in the Electronic Courts and Tribunals Act 2016 (NZ) about which I have blogged here.

What the practice notes do is provide an electronic platform for the assembly of bundles of documents but by doing so it also enables counsel to utilise technology to enhance case presentation and argument.  None of this of course is specified in the practice notes which are designed to encourage and facilitate the use of electronic bundles the various Courts.  The fact of the matter is, however, that by virtue of the advantages bought by the technology, counsel may be creative in the way in which the electronic bundle is utilised.  One of the requirements of the electronic bundle is that all documents be scanned into OCR format.  One would think that it would be unnecessary to have such a requirement, and that rendering pdf documents searchable would almost go without saying but regrettably it needs to be emphasised.  This effectively means that the information in the document may be subject to search and manipulation in a way that would not be possible in mere image format.

The practice notes make it clear that electronic bundles will not be used in every case.  They will only be used in document intensive cases where the common bundle would be likely to exceed a certain number of pages.

In “building” in electronic bundle documents must be contained in electronic folders equivalent to the physical volumes of hard copy bundles and within those folders each separate document must be a multipage pdf document.  Each folder must be named with an appropriate description and if there is more than one volume of a particular electronic bundle the folder for that type of bundle will include subfolders for each volume.  The rules also provide for electronic bundles in document intensive criminal cases.

One of the difficulties in using electronic bundles effectively lies in the fact that the majority of advocates have been bought up in the paper based environment and find it uncomfortable or difficult to make the shift into the digital paradigm with the changes in thinking that such requires.  The concept of functional equivalence gets in the way.  One uses technology merely to mirror what one would normally do with paper rather than utilise the technology to its fullest capacity.  Often software packages will themselves create difficulties.  Some software packages make it almost impossible to move from page to page without entering a code or a key.  Other software packages allow for the utilisation of barcodes whereby documents could be selected and projected using a barcode scanner but the simple fact of the matter is that counsel don’t utilise that aspect of the technology which would save considerable time and effort in moving through document intensive cases.

The various electronic document protocols effectively replace the lever arch paper folder with a USB stick or other form of storage medium. Lawyers and judges maintain an informational distance as a result. Each participant has to locate the “document” the subject of the discussion on his or her own device. A centrally located document bundle to which every participant has access and which can be displayed in Court would expedite matters. Such a tool is available in the form of Caselines which is effectively a digital court platform.

Caselines does not require software or infrastructure. It is a cloud based solution. To connect to a Caselines bundle for a trial or hearing all that is needed is a wireless connection at the Court.

Caselines bundles may be created by the parties or by the Court. Participants in a case have access to the bundle with varying levels of credentials. There are a number of different types of functionality including the ability to make notes, mark up and, importantly, to allow counsel who is referring to a document, image, video or other piece of digital material to make that available to all the participants in the case simultaneously. This means that everyone is on the same page, literally. Caselines is now used throughout the Crown Courts in England and Wales for criminal trials. Digital is the default position. Paper is no longer used

The Digital Paradigm allows lawyers to devise their own means of employing electronic technologies in the practice of law and the Courts judges in the management and presentation of cases.  What will be interesting to see is how courts and judges will respond.

But to make that leap it is necessary to examine some fundamental premises and reasons for why it is that we conduct cases in the way that we do. I have written elsewhere that the practice of law is really an exercise in information exchange, be it by way of receiving instructions from the client, processing those, seeking an information flow from research and communicating the results of that to the client by way of advice, or by way of a case in court where information flows come from witnesses whose information is assessed for relevance and reliability and which in turn inform the decision-maker’s decision which is them communicated to the parties and often to a wider audience by means of digital publication systems or by reporting in the law reports.

In court the information flows were oral exchanges. Indeed, written pleadings were not a part of court procedure until the reign of Edward IV, and most of the cases noted in the Year Books dealt with the technicalities of pleading rather than reports of decisions on substantive points of law. The first reports that revolutionised the way in which cases were recorded were those of Edmund Plowden, first printed in 1571. But the way that cases were presented in court was largely an oral process with witnesses orally stating what they saw or did and the lawyers making their points by oral rather than written argument. Or at least that was the case in the Common Law courts. Prerogative courts such as Star Chamber and the Courts of Chancery used the written record more extensively, albeit a handwritten one.

(For a full description of Star Chamber procedures see Thomas G. Barnes “Due Process and Slow Process in the Late Elizabethan – Early Stuart Star Chamber” (1962) 6 American Jnl of Legal History 221)

But despite the apparent written procedures adopted by Star Chamber and the Chancery Courts, much of the information exchange remained an oral..

The oral nature of information exchange in court over the centuries requires the physical presence of the “players” in the one place – the Courtroom. Indeed it has not been until comparatively recently – and by that I mean since I was admitted to the Bar in 1970 – that judges have countenanced and encouraged the provision of arguments in writing. These may range from the massive briefs that characterise written argument in the United States to the much smaller outline style  “skeleton arguments” in England. Indeed in some appellate jurisdictions – again predominantly in the United States – oral argument is time limited, demonstrating a declining emphasis upon oral argument in favour of documentary material. Yet despite the brevity of oral argument, physical presence is still required.

Another Form of “Presence”

Technology is changing this and there is a declining emphasis on actual physical presence following upon the introduction in New Zealand of the Courts Remote Participation Act 2010 which allows for “presence” of a participant by way of audio-visual link.(AVL) In the majority of cases in the District Court the participant “attending” by way of AVL will be a  defendant who is in custody. I haven’t yet come across the case where counsel has sought to be present by way of AVL and perhaps the custodial remand focus of the technology deployed in New Zealand Courts is responsible for that, although there is nothing in the legislation which excludes the use of Skype or Facetime. I imagine that all that is required for a lawyer and a Judge to break the ice.

The issue of physical presence is one part of the expanded use of technology in case presentation. At the moment document management technology is used in document intensive cases where scanned copies of documents are assembled and presented on screens by means of software tools. I interpolate to express wry amusement that documents are scanned into these programmes rather than using software tools which allow “document” assembly of digital documents in native file format, but perhaps that is yet to come. That is fine as far as it goes.

What about expanding the scope of the hearing so that by using “presence” technology such as AVL – or perhaps, in the future, holography –  counsel may run the case remotely. Where there is a need for text based information to be presented (what we call “documents”, retaining our paper based language despite attempts by legislators to include any information however recorded as fulfilling the definition of a “document” but why retain the use of a word which conceptually is associated with hard copy media?) that can be communicated to the court by electronic means. Witnesses can be present by AVL links. The range of information that is communicable or admissible to inform the Court’s decision could include multimedia, 3D imaging, maps or satellite shots from Google Earth or Street View. All the clumsy time consuming methods currently employed for evidence presentation could be significantly more efficient without compromising information flows or the ability of fact finders or law deciders to reach a conclusion.

Our “presence based” focus has its roots in rituals which, with modern communications technologies, can no longer be justified.

These ideas may seem to be radical – perhaps revolutionary – but the reality of the fact is that we are and will continue to be for some time in the midst of an information technology driven by continuous disruptive change. It is incumbent upon lawyers, judges and those involved in the information exchange process that underlies the activities of all lawyers to maximise and deploy these new technologies.

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Facebook and the Printing Press

A recent article in the New Zealand Herald cites historian Niall Ferguson as drawing comparisons between the early days of the printing press and the current free wheeling Digital Paradigm. The argument is that we should learn from the lessons of history

There is no comparison between the technologies.

To suggest that the printing press enjoyed the “permissionless innovation” afforded by internet and digital technologies ignores that fact that in England the press was under the control of the Stationers Guild (later Company after 1556) who licensed what printers could print and kept a very close eye on what printers did. Indeed, their control was such that only the Universities of Oxford and Cambridge were the sites of presses outside of London.
Then there was state regulation of printing that took a number of forms. The Royal Stationer – later the Royal Printer – was responsible for printing the King’s view on things – statutes, proclamations and other such. Thomas Cromwell used the press to great effect during the English Reformation. It was he who used preambles in Statutes to identify the “mischief” that the statute was intended to remedy.
After the incorporation of the Stationers (during the reign of Mary I) it was anticipated that the Company would aid the State using its newly granted search powers to root out the printers of heretical tracts. However the power was deployed to root out unlicensed printers who were not members of the Stationers.
There were also many other efforts by the State to regulate content, some more successful than others. The Star Chamber Decrees of 1587 and 1634 were rather dramatic examples. The Decrees were in fact judgments of the Court in cases involving printing disputes.
Just prior to the Civil War that power of Star Chamber was nullified and printers enjoyed considerable freedom and lack of regulation but it did not last once Oliver Cromwell and the Puritans gathered strength.
After the Restoration there was significant regulation both of printers and the content of the Press by means of Licensing Acts the first of which was in 1662 and which was renewed regularly thereafter until 1694. Charles II’s enforcer as far as print was concerned was a phanatick (to use the spelling adopted by Neal Stephenson in his Baroque Quartet) by the name of Roger L’Estrange – a very nasty piece of work both by the standards of his time and ours.
In 1694 the Licensing Acts came to an end, primarily as a result of political strife within a greater context, and until 1710 there was a lack of restriction on printing. This all changed when the focus moved from the printer to the author who should have control of content and the Statute of Anne was the first Copyright Act.
So to say that there is a parallel between Silicon Valley’s freedom to develop platforms and bolt them on to the Internet and the early history of the printing press is wrong. Indeed, the whole structure of the communications technologies is different. The printing press was the technology and essentially books, magazines, pamphlets and papers were the medium. Today the Internet is the communications technology and Facebook, Twitter, blogs etc etc are platforms bolted on to it. The absence of red tape (what I call permissionless innovation) is what has enabled the growth of the Internet and the proliferation of platforms.
The call is for regulation, but regulation of what. Better to have a regulatory plan in place that we can discuss rather than disembodied pleas to “do something”. Perhaps we could turn to history but I think we have moved on from the semi-absolutist model of the Tudors and Stuarts.

Fearing Technology Giants

On 15 January 2018 opinion writer Deborah Hill Cone penned a piece entitled “Why tech giants need a kick in the software”

Not a lot of it is very original and echoes many of the arguments in Jonathan Taplin’s “Move Fast and Break Things.” I have already critiqued some of Taplin’s propositions in my earlier post Misunderstanding the Internet . Over the Christmas break I revisited Mr. Taplin’s book. It is certainly not a work of scholarship, rather it is a perjorative filled polemic that in essence calls for regulation of Internet platforms to preserve certain business and economic models that are challenged by the new paradigm. Mr. Taplin comes from a background of involvement primarily in the music industry and the realities of the digital paradigm have hit that industry very hard. But, as was the case with the film industry, music took an inordinate amount of time to adapt to the new paradigm and develop new business models. It seems that is now happening with iTunes and Spotify and the movie industry seems to have recognised other models of online distribution such as Netflix, Hulu and other on-demand streaming services.

For Mr. Taplin these new business models are not enough. His argument is that artists should have an expectation that they should draw the same level of income that they enjoyed in the pre-digital age. And that ignores the fact that the whole paradigm has changed.

But Mr. Taplin directs most of his argument against the Internet giants – Facebook, Google, Amazon and the like and singles out their creators and financiers as members of a libertarian conspiracy dedicated to eliminating competition – although to conflate monopolism with libertarianism has its own problems.

Much of Mr. Taplin’s argument uses labels and generalisations which do not stand up to scrutiny. For example he frequently cites one of the philosophical foundations for the direction travelled by the Internet Giants as Ayn Rand whom he describes as a libertarian. In fact Ms. Rand’s philosophy was that of objectivism rather than libertarianism. Indeed, libertarianism has its own subsets. In using the term does Mr. Taplin refer to Thomas Jefferson’s flavour of libertarianism or that advocated by John Stuart Mill in his classic “On Liberty”?  It is difficult to say.

Another problem for Mr Taplin is his brief discussion on the right to be forgotten He says (at page 98) “In Europe, Google continues to challenge the “right to be forgotten” – customers’ ability to eliminate false articles written about them from Google’s search engine.” (The emphasis is mine).

The Google Spain Case which gave rise the the right to be forgotten discussion was not a case about a false article or false information. In fact the article that Sr Costeja-Gonzales wished to deindex was true. It was an advertisement regarding his financial that was published in La Vanguardia newspaper in Barcelona some years before. The reason why deindexing was sought was because the article was no longer relevant to Sr Consteja-Gonzales improved fortunes. To characterise the desire by Google to resist attempts to remove false information misunderstands the nuances of the right to be forgotten.

One thing is clear. Mr. Taplin wants regulation and the nature of the regulation that he seeks is considerable and of such a nature that it might stifle much of the stimulus to creativity that the Internet allows. I have already discussed some of these concepts in other posts but in summary there must be an understanding not of the content that is delivered via Internet platforms but rather of the underlying properties or affordances of digital technologies.

One of these is the fact that digital technologies cannot operate without copying. From the moment a user switches on a computer or a digital device to the moment that device is shut down, copying takes place. Quite simply, the device won’t work without copying. This is a challenge to concepts of intellectual property that developed after the first information technology – the printing press. The press allowed for mechanised copying and challenged the earlier manual copying processes that characterised the scribal paradigm of information communication.

Now we have a digital system that challenges the assumptions that content “owners” have had about control of their product. And the digital horse has bolted and a new paradigm is in place that has altered behaviours, attitudes, expectations and values surrounding information. And can regulation hold back the flood? One need only look at the file sharing provisions of the Copyright Act 1994 in New Zealand. These provisions were put in place, as the name suggests, to combat file sharing. They are now out of date and were little used when introduced. Technology has overtaken them. The provisions were used sporadically by the music industry and, despite extensive lobbying, not at all by the movie industry.

Two other affordances that underlie digital technologies are linked. The first is that of permissionless innovation which is interlinked with the second – continuing disruptive change.  Indeed it could be argued that permissionless innovation is what drives continuing disruptive change.

Permissionless innovation is the quality that allows entrepreneurs, developers and programmers to develop protocols using standards that are available and that have been provided by Internet developers to “bolt‑on” a new utility to the Internet.

Thus we see the rise of Tim Berners-Lee’s World Wide Web which, in the minds of many, represents the Internet as a whole.  Permissionless innovation enabled Shawn Fanning to develop Napster; Larry Page and Sergey Brin to develop Google; Mark Zuckerberg to develop Facebook and Jack Dorsey, Evan Williams, Biz Stone and Noah Glass to develop Twitter along with dozens of other utilities and business models that proliferate the Internet.  There is no need to seek permission to develop these utilities.  Using the theory “if you build it, they will come”[1] new means of communicating information are made available on the Internet.  Some succeed but many fail[2].  No regulatory criteria need to be met other than that the particular utility complies with basic Internet standards.

What permissionless innovation does allow is a constantly developing system of communication tools that change in sophistication and the various levels of utility that they enable.  It is also important to recognize that permissionless innovation underlies changing means of content delivery.

So are these the aspects of the Internet and its associated platforms that are to be regulated? If the Internet Giants are to be reined in the affordances of the Internet that give them sustenance must be denied them. But in doing that, it may well be that the advantages of the Internet may be lost. So the answer I would give to Mr Taplin is to be careful what you wish for.

This rather long introduction leads me to a consideration of Ms. Hill Cone’s slightly less detailed analysis that nevertheless seizes upon Mr Taplin’s themes. Her list of “things to loathe” follow along with some of my own observations

1.) These companies (Apple, Alphabet, Facebook, Amazon) have simply been allowed to get unhealthily large and dominant with barely any checks or balances. The tech firms are more powerful than the telco AT&T ever was, yet regulators do nothing (AT&T was split up). In this country the Commerce Commission spent millions fighting to stop one firm, NZME (publisher of the New Zealand Herald) from merging with another Fairfax (Now called Stuff), a sideshow, while they appear stubbornly uninterested in tackling the real media dominance battle: how Facebook broke the media. I know we’re just little old New Zealand, but we still have sovereignty over our nation, surely? [Commerce Commission chairman] Mark Berry? Can’t you do something? The EU at least managed to fine Google a couple of lazy bill.

Taplin deals with this argument in an extensive analysis of the way in which antitrust law in the United States has become somewhat toothless. He attributes this to the teachings of Robert Bork and the Chicago School of law and economics.

Ms Hill Cones critique suggests that there is something wrong with large corporate conglomerates and that simply because something has become too big it must be bad and therefore should be regulated rather than identifying a particular mischief and then deciding whether regulation is necessary – and I emphasise the word necessary.

2.) Some of these tech companies have got richer and richer exploiting the creative content of writers and artists who create things of real value and who can no longer earn a living from doing so.

This is straight out of the Taplin playbook which I have discussed above. I don’t think its has been suggested that artists are not earning. They are – perhaps not to the level that they used to and perhaps not from sales of remuneration from Spotify tracks. But what Taplin points out – and this is how paradigmatic change drives behavioural change – is that artists are moving back to live performance to earn an income. Gone are the days when the artist could rely on recorded performances. So Ms Hill Cone’s critique may be partially correct as it applies to the earlier expectation of making an income.

3.) Mark Zuckerberg’s mea culpa, announced in the last few days that Facebook is going to focus on what he called “meaningful interaction”, is like a drug dealer offering a cut-down dose of its drug, hoping addicts won’t give up the drug completely. Even Zuckerberg’s former mentor, investor Robert McNamee said in the Guardian that all Zuckerberg is doing is deflecting criticism and leaving users “in peril.”

The perjorative analogy of the drug dealer ignores the fact that no one is required to sign up to Facebook. It is, after all, a choice. And in some respects, Zuckerberg’s announcement is an example of continuing disruptive change that affects Internet Giants as much as it does a startup.

4.) These companies have created technology and thrown it out there, without any sense of responsibility for its potential impact. It’s time for them to be held accountable. Last week Jana Partners, a Wall Street investment firm, wrote to Apple pushing it to look at its products’ health effects, especially on children. Even Facebook founder Sean Parker has recently admitted “God knows what [technology) is doing to our children’s brains.”

The target here is that of permissionless innovation. Upon what basis is it necessary to regulate permissionless innovation. Or does Ms Hill Cone wish to wrap up the Internet with regulatory red tape. Aa far as the effects of social media are concern, I think what worries may digital immigrants and indeed digital deniers is that all social media does is to enable communication – which is what people do. It is an alternative to face to face, telephone, snail mail, email, smoke signals etc. We need to accept that new technologies drive behavioural change.

5.) While it’s funny when the bong-sucking entrepreneur Erlich Bachman says in the HBO comedy Silicon Valley: “We’re walking in there with three foot c**ks covered in Elvis dust!” in reality, many of these firms have a repugnant, arrogant and ignorant culture. In the upcoming Vanity Fair story “Oh. My god, this is so f***ed up: inside Silicon Valley’s secretive orgiastic dark side” insiders talked about the creepy tech parties in which young women are exploited and harassed by tech guys who are still making up for getting bullied at school. (Just as bad, they use the revolting term “cuddle puddles”) The romantic image of scrappy, visionary nerds inventing the future in a garage has evolved into a culture of entitled frat boys behaving badly. “Too much swagger and not enough self-awareness,” as one investor said.

I somehow don’t think that the bad behaviours described here is limited to tech companies. I am sure that in her days as a business journalist (and a very good one too) Ms Hill Cone saw examples of the behaviours she condemns in any number of enterprises.

6.) These giant companies suck millions in profits out of our country but do little to participate as good corporate citizens. If they even have an office here at all, it is tiny. And don’t get started on how much tax they pay. A few years ago Google’s New Zealand operation consisted of three people who would fly back and forth from Sydney to manage sales over here. Apparently, Apple has opened a Wellington office and lured “several employees” from Weta Digital. But there is little transparency about how or where these companies do business or how to hold them accountable. There is no local number to call, there is no local door to knock on. And don’t hold your breath that our children might get good jobs working for any of these corporations.

This criticism goes to the tax problem and probably has underneath it a much larger debate about the purposes and morality of the tax system. The classic statement, since modified, is stated in the case of Inland Revenue Commissioners v Duke of Westminster [1936] AC 1 where it was stated:

“Every man is entitled if he can to order his affairs so that the tax attaching under the appropriate Acts is less than it otherwise would be. If he succeeds in ordering them so as to secure this result, then, however unappreciative the Commissioners of Inland Revenue or his fellow tax-payers may be of his ingenuity, he cannot be compelled to pay an increased tax.”

There can be no doubt that the tax laws will be changed to close the loophole that exists whereby the relationship between the income derived by Google and Apple from their NZ activites will be subject to NZ tax. But Ms Hill Cone goes further and suggests that these companies should have a physical presence – a local door to knock on. This is the digital paradigm. It is no longer necessary to have a suite of offices in a CBD building paying rent.

7.) Mark Zuckerberg preaches that Facebook’s mission is to connect people. But Johann Hari’s new book Lost Connections: Uncovering the real causes of depression and the unexpected solutions, out this week, provides convincing evidence that in the digital age people are more lonely than ever. Hari argues the very companies which are trying to “fix” loneliness – Facebook, for example – are the ones which have made people feel more disconnected and depressed in the first place.

The book cited by Ms Cone is by a journalist writing about depression. Apparently the diagnosis for hsi depression was supposedly from a chemical imbalance in his brain whereas he discovered after investigating some of the social science evidence that depression and anxiety are caused by key problems with the way that we live. He uncovered nine causes of depression and anxiety and offers seven solutions to the problems. Much of the book is about the author and the problems that he had with the treatment he received. His book is as much a critique of the pharmaceutical industry as much as anything. It is described in the Guardian as a flawed study.  Certainly it cannot be said that Hari’s argument is directed towards the suggestion that social media platforms are causative of depression.

8.) Is all this technology really making the world a better place? At this week’s CES (Consumer Electronics Show) in Las Vegas some of the innovations were positive but a lot of them were really, quite dumb. Do you really need a robot that will fold your laundry or a suitcase that will follow you? Or a virtual reality headset that will make you feel like you are flying on a dinosaur (Okay, maybe that one would be fun.)

Point taken. A lot of inventions are not going to make the world a better place. On the other hand many do. Think Thomas Alva Edison and then think about the Edsel motor vehicle. Ms Hill Cone accepts that some of the innovations were positive and the positive ones will probably survive the “Dragon’s Den” of funding rounds and the market.

These eight points were advanced by Ms Hill Cone as reasons why tech companies should get their comeuppance as she puts it. It is difficult to decide whether the article is merely a rant or a restatement of some deeper concerns about Tech Giants. If it should be the latter there should be more thorough analysis. But unless it is absolutely necessary and identifies and addresses a particular mischief in my view regulation is not the answer.

But Ms Hill-Cone is not alone. Later in January a significant beneficiary of Silicon Valley, Marc Benioff compares the crisis of trust facing tech giants to the financial crisis of a decade ago. He suggest that Google, Facebook and other dominant forms pose a threat and he made these comments at the World Economic Forum in Davos. He suggested that what is needed is more regulation and his call was backed by Sir Martin Sorrell who suggested that Apple, Facebook, Amazon, Google, Microsoft, and China’s Alibaba and Tencent had become too big. Sir Martin compared Amazon founder Jeff Bezos to a modern John D. Rockefeller.

One of the suggestions by Sir Martin was that Google and Facebook were media companies, echoing concerns that had been expressed by Rupert Murdoch. The argument is that as the Internet Giants get bigger, it is not a fair fight. And then, of course, there were the criticisms that the Internet Giants had become so big that they were unaware of the nefarious use of their services by those who would spread fake news.

George Soros added his voice to the calls for regulation in two pieces here and here. At the Davos forum he suggested that Facebook and Google have become “obstacles to innovation” and are a “menace” to society whose “days are numbered”. As mining companies exploited the physical environment, so social media companies exploited the social environment.

“This is particularly nefarious because social media companies influence how people think and behave without them even being aware of it. This has far-reaching adverse consequences on the functioning of democracy, particularly on the integrity of elections.”

In addition to skewing democracy, social media companies “deceive their users by manipulating their attention and directing it towards their own commercial purposes” and “deliberately engineer addiction to the services they provide”. The latter, he said, “can be very harmful, particularly for adolescents”.

He considers that the Internet Giants are unlikely to change without regulation. He compared social media companies to casinos, accusing them of deceiving users “by manipulating their attention” and “deliberately engineering addiction” to their services, arguing that they should be broken up. The basis for following a model that was applied in the break up of AT & T Soros suggested that the fact that the Internet Giants are near-monopoly distributors makes them public utilities and should subject them to more stringent regulation, aimed at preserving competition, innovation and fair and open access.

Soros pointed to steps that had been taken in Europe where he described regulators as more farsighted than those in the US when it comes to social policies, referring to the work done by EU Competition Commissioner Margrethe Vestager, who hit Google with a 2.4 billion euro fine ($3 billion) in 2017 after the search giant was found in violation of antitrust rules.

Even more recently, in light of the indictments proferred by Spevial Prosecutor Mueller against a number of Russians who attempted to interfere with the US election of 2016 and who used social media to do so, a call has gone up to regulate social media so that this does not happen again. Of course that is a knee jerk reaction that seems to forget the rights of freedom of expression enshrined in both international convention and domestic legislation and the First Amendment to the US Constitution which protects freedom of speech and where political speech is given the highest level of protection in subsequent cases. But nevertheless, the call goes out to regulate.

Facebook has responded to these concerns by reducing the news feeds that may be provided and more recently in New Zealand Google has restructured its tax arrangements. Both of these steps represent a response by the Internet Giants to public concern – perhaps an indication of a willingness to self-regulate

The urge to regulate is a strong one especially on the part of those who favour the status quo. There can be little doubt that ultimately what is sought is control of the digital environment. The content deliverers like Facebook and Google will be first, but thereafter the architecture – the delivery system that is the Internet that must be free and open – will increasingly come under a form of regulatory control that will have little to do with operational efficiency.

Of course, content is a low-hanging fruit. Marshall McLuhan recognised that when he called the “content” of a medium is like the juicy piece of meat carried by the burglar to distract the watchdog of the mind.” I doubt very much that content is the real target. Nicholas Sarkozy called for regulation of the Internet in 2012 so that urge to regulate is not new by any means.

At the risk of being labelled a technological determinist, I suggest that trying to impose regulatory structures that preserve the status quo inhibits innovation and creativity as much if not more than the suggestion that such an outcome will happen if we leave the Internet Giants alone. Rather I suggest that we should recognise that the changes that are being wrought are paradigmatic. There will be a transformation of the way in which we use communication systems after the current disruption that is being experienced. That means that what comes out the other end may not be immediately recognisable to those of us whose values and predispositions were formed during the analog or pre-digital paradigm.

On the other hand those who reject technological determinism still recognise the inevitability of change. Mark Kurlansky in his excellent book “Paper: Paging through history” argues that technologies have arisen to meet societal needs. It is futile to denounce the technology itself. Rather you have to change the operation of society for which the technology was created.  For every new technology there are detractors, those who see the new invention destroying everything that is good in the old.

To suggest that regulation will preserve the present – if indeed it is worth preserving – is rear view mirror thinking at its worst. Rather we should be looking at the opportunities and advantages that the new paradigm presents. And this isn’t going to be done by wishing for a world that used to be, because that is what regulation will do – it will freeze the inevitable development of the new paradigm.

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[1] In fact a misquote that has fallen into common usage from the movie Field of Dreams (Director and Screenplay by Phil Alden Robinson 1989). The correct quote is “If you build it he will come” (my emphasis) http://www.imdb.com/title/tt0097351/quotes (last accessed 3 February 2015).

[2] See for example  Andrew Keen The Internet is Not the Answer (Atlantic Books, London 2015)

Digital Assumptions

On 6 March 2018 New Zealanders are required to fill in their census forms. This important information gathering exercise, undertaken by the Statistics Department, is necessary for Government planning and the provision of services.

In the past on the day decreed, families or individuals would fill in their census forms – earlier sent out in the mail – providing information that was accurate on that day. The forms would be collected by an official and taken away for analysis.

This year things are different. The first thing is that the forms will not be mailed. What citizens will receive will be a letter with an access code. This is a unique identifier that allows the individual to complete a census form online. The details of the process may be found here

And herein lies a problem.

Online completion of a census form and the provision of census information is the default position. If a citizen doesn’t want to complete a census online he or she may phone an 0800 number and hard copy census forms will be sent out, but the time frame is tight and the postal service is slower than it used to be. The distribution of access codes commenced on 23 February. I write this on 25 February and haven’t seen mine yet. My next postal delivery is on Tuesday 27 February (daily postal deliveries ceased some time ago) so if I elect to complete the census in hard copy I have just over a week to have the forms delivered.

And if the forms are not with me and if I don’t have the facility or ability to complete the census online I will have committed an offence. And that is another significant problem with the digital default position.

The digital default position relies on a number of assumptions. It assumes that participants have a device that allows them to complete the census online. In New Zealand that assumption may be correct given the proliferation of smartphones and other digital devices. Then there is the assumption that most citizens will have access to the Internet via an Internet Service Provider (ISP). Those that do not are excluded from the process. Then there is the assumption that citizens will be comfortable completing on online census and committing their information to the vagaries of the Internet. What assurances do citizens have that their information is secure?

The digital divide is a reality in New Zealand as it is elsewhere. This is recognised by our Minister for Broadcasting and Communications, Ms Clare Curran who wishes to see an end to the digital divide.  Notwithstanding studies that suggest a high uptake of the Internet in New Zealand, many of our citizens, through no fault of their own or as a result of disabilities, are unable to simply go online and complete the census. And if they don’t have the presence of mind to ask for the hard copy census forms and complete them personally or with an ammanuensis then they may find themselves in the unenviable position of having committed an offence.

Admittedly, the prosecution does not automatically follow, and Statistics Department people will perform a followup if forms have not been completed – digitally or in hard copy. But the fact remains that there is potential liability for an offence. And that liability in my view should not arise from a digital default based on a number of possibly incorrect or nuanced assumptions.

So what could have been done. One solution could have been to send out the hard-copy census forms along with an access code so that those who wished to complete the census online could do so. Those who wished to complete the census in hard copy by way of preference or an inability to complete online could do so. Digital by default should come later when there is an assurance that the digital divide has decreased.

An alternative, if the Department insisted on the digital default position, would have been to send the access codes out a week earlier. The assumption that the postal service will get the papers to those that request them on  time is not a valid one.

But there is a bigger issue here and it relates to the move to provide government services online. As has been noted, the digital divide is a reality in New Zealand. The sad thing is that often those most in need of government services fall on the wrong side of the digital divide.

I have advocated in the context of facilitating public access to legal information online –  statutory and case law information – that there should be dedicated kiosks provided in public areas like libraries, public buildings, government buildings shopping malls and the like so that those who do not have the necessary devices or accounts can access information free of charge. As we move towards the delivery of online legal services and even online courts and dispute resolution services, kiosks become a vital aspect not only of access to law but also access to justice.

The online completion of the census could also be undertaken via such kiosks as may many other government services.

The proposition is a simple one – if the State is going to move to digitisation of its services and required the fulfillment of citizens’ obligations by online means, the State is obliged to provide the means to facilitate such obligations for all its citizens. To do otherwise would be to create a class of digitally disentitled.

The Use of English

It is not often that I agree with Bryan Gould but his recent opinion piece in the New Zealand Herald for 17 January goes further than the headline which asserts that broadcasters have a responsibility to use words correctly. The article presents an argument for the proper use of the English. This discussion is timely, given the proposals that New Zealand children should learn a second language at school.

Why do I agree with Mr Gould? The answer is simple. Proper, clear expression avoids ambiguity and ensures that the listener hears or read what the speaker or writer intends. Sloppy sentence construction and bad grammar lead to confusion where the meaning may be arguable.

I know that the argument for a loose form of expression reflects modern usage and that may be the case. But it also means that true meaning may be compromised.  Frankly those who advance such an argument either do not understand the proper rules of grammar and expression or are too lazy to apply them.

My guiebooks to the proper use of the English language are Fowler’s Mdern English Usage and the Oxford English Dictionary. I did study languages other than English when I was at school. I took Latin and French to UE level. I thought I would need Latin which in those days was a required subject for a Law Degree. A year before I left school that requirement was dropped but I continued Latin into the seventh form.

What possible use was Latin to me. It is claimed that it is a dead language. Perhaps the Catholic Church would be interested to learn that. At least I was able to follow a Latin Mass in the days when Latin was the liturgical language. But more importantly, my Latin studies taught me how to construct a proper English sentence that accurately stated what I wanted to say – rather important for a lawyer. I have always valued that.

French got me around France when we travelled there but of the two “second languages” I had, Latin was the favourite. I enjoy reading Cicero, Caesar,Catullus and Virgil in the original. Latin stood me in good stead when I visited Rome and the remains of the Roman colonies in Asia Minor and was able to understand the inscriptions – especially the res gestae divi Augusti  a copy of which is at the Ara Pacis in Rome.

File:Res Gestae Divi Augusti.jpg

As you have probably gathered I am in favour of school kids learning a second language although what must come first is a proper understanding of the use of English – proper spelling, proper grammar and proper pronunciation.

As I understand it the debate is heating up about what the choices of second languages should be. Sign and Maori are official languages in New Zealand although in my experience the latter is used more in a formal or ceremonial context although I did hear a case where Maori was used.

But because they are official does not necessarily mean that students should be compelled to learn them. Languages that could be of use in the future and assist in developing an understanding the importance of accuracy of expression may include French, Spanish, Mandarin, Cantonese, Hindi and Japanese. Students should have a choice of the second language or languages that they learn although I acknowledge that the choice may be limited by the teaching resources available

And if the teaching resources are available, Latin could also be an option.

Rush to Judgement and Due Process

I am troubled by some of what has been happening in the Me Too business.

Here is a link to various comments from women who are worried about #metoo. One comment that resonated was that from Nathalie Rothschild whose first full paragraph states:

“I could discuss how it is normalising the kind of mob behaviour that is the most negative aspect of internet culture, and how it is eroding the presumption of innocence.”

It seems that we have learned little from the Salem Witch Hunt, Arthur Miller’s play “The Crucible” and the McCarthy era and all the other incidents where accusations are all that is needed to establish guilt.

Our wonderful Internet that has allowed us the joy of communication with one another has become an enhanced “court of public opinion” with little interest in proof burdens and standards but rather a rush to judgement and excoriation. And it seems that rather than take the path of complaint to the authorities the opportunity that the Internet offers to “name and shame” is too tempting to avoid and is, as I have said, untrammelled by the inconvenience of due process.

In so saying however I have no doubt that there have been abuses of power and position in a number of industries and fields of endeavour. What does concern me is that all that is needed is an allegation to destroy a career. If the claims about Kevin Spacey are true I can understand that his services may no longer be required by the movie industry. His damaged reputation would hardly enhance the commercial viability of a film in which he might make. But that does not mean that I consign my DVDs of “House of Cards” and his other excellent performances to the rubbish heap.

The problem that we have is that so far there have been allegations and assumptions of guilt. One may answer by suggesting that there is truth in numbers. That may well be so but there are tests for similar fact evidence or what we in the Shaky Isles refer to as propensity evidence. It may be that the Washington Post and other agencies have carried out their own investigations but I cannot say that I have ever seen a piece of journalism that is conducted with the rigour of what we understand as due process.

So I am not rushing to judgement on any of the allegations, although I recognise that my subconscious value system that allows me to adopt that stance may have been shaped by the fact that I am an old, white, privileged male. But it may be that the Courtrooms of Twitter, the Blogosphere, Facebook and the news media have accomplished the objective of reputation destruction and naming and shaming, rendering due process and all the inconvenience accompanying that system unnecessary and redundant. Therein lies the tragedy.

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.