Collisions in the Digital Paradigm VII – Answering the Internet

When the TV News show Campbell Live came to an end there was a tremendous amount of angst that condemned the network and saw this as another nail in the coffin of TV News. I wrote a piece about the demise of the show and the reaction, but didn’t push “Publish” and I still haven’t . I wasn’t satisfied with the piece. It didn’t properly capture what I wanted to say. So I left it. Until now. Some recent reading has caused me to revisit the piece and place it within a larger context.

A few weeks ago I came across a book by Ken Auletta entitled “Googled: The End of the World as We Know It. “ First written in 2009 and updated in 2010, despite the dystopian title, it is an interesting history of the Google within the context of other Silicon Valley Startups – and it doesn’t really live up to its title. Buit it does have some very interesting things to say about news media – especially print media – in a time of paradigmatic and disruptive change.

The second book was by Jon Ronson and is entitled “So You’ve Been Publicly Shamed” which looks at shaming, what drives it, how the Internet enhances it and what you can do about it – not using legal tools but “reputation management” facilities. The book is an interesting one because some of the situations it describes arise within the context of a “hivemind” that develops with social media applications. That means that often there is not just one bully, but a whole horde of them. And this poses some interesting issues for a legal tool like the Civil Enforcement regime of the Harmful Digital Communications Act 2015.

The third book is by Andrew Keen and is entitled “The Internet is Not the Answer”. If I were to critique this piece of work fully I would need as much space as the book itself and would find myself fisking every paragraph, and I am not going to do that. Rather I want to look at some of the themes present in Keen’s book and address them and then turn to the TV News theme about which I wrote before.

Lets look at the title. Is he critical of the Internet?  No he is not. He is critical of the way in which entrepreneurs have taken advantage of the quality of permissionless innovation that allows them to bolt applications on to the backbone that is the Internet. Because the Internet is merely the transport layer. It is content neutral. Keen’s critique is directed to those who have exploited permissionless innovation to develop applications, put them on the Internet and make large amounts of money in doing so.

One of his major criticisms is that there is an illusion that underlies the apparent “free” nature of these applications. Google, Facebook, Instagram, Uber all monetise our presence and by gathering data associated with our use of their services. Keen criticises this as “without our permission”. The way in which advertising also funds the apparent “free” nature of these applications is a striking theme in Auletta’s book and one to which he devotes a considerable amount of print.

But is this an “Internet” problem? Does the seat of the problem lie within the transport layer? Of course it doesn’t. But to characterise the Internet as the problem makes for a catchy title, and who is going to let a technical fact get in the way of a good line.

One of the stories that Ronson recounts in his book about shaming is the treatment handed out to Jonah Lehrer, a successful writer of “self-help” books and a drawcard on the speaking circuit. In one of his books Lehrer attributed a quote to Bob Dylan that to a journalist who was a Dylan fan didn’t ring true. And it wasn’t. The uncovering led to further investigations and discoveries that certain facts didn’t stack up. A similar thing happened to Mike Daisey who, shall we say, embellished or transplanted some facts to enhance his one-man show “The Agony and Ecstasy of Steve Jobs.”

Keen is not immune to a bit of misstatement of fact himself. There can be no doubt that Apple outsourced the manufacturing of its products to a Foxconn factory in Shenzen and that the use of unsafe products and unsafe work practices were appalling. Keen himself interviewed Daisey . In his book he cites that interview but overlooks the fact that Daisey manipulated the facts and he was exposed for doing so by Ira Glass on This American Life on 16 March 2012. Keen does not qualify his reference to Daisey. There is no doubt that other investigations revealed that the Shenzen plant was dreadful. I think Keen could have cited a more reliable source than an exposed fact manipulator who excused himself by suggesting that “we have different worldviews on some of these things”.

Another factual problem occurs when Keen, who was once in the Internet music business himself with a startup called Audiocafe, discusses the demise of the recorded music business which was part of his life when he lived in Soho in the 1980’s. He refers particularly to Kim Dotcom whom he describes as New Zealand based. I’m not sure I can excuse him the hyperbole of describing Dotcom as a criminal when he has not yet been convicted of criminal copyright infringement, but he does make the statement that Dotcom’s Megaupload platform generated the legal revenue to enable him to buy is 15 million pound Downton Abbey-style mansion in New Zealand. Clearly Keen is no connoisseur of architecture because there is little resemblance between the Chrisco mansion in Coatesville and Highclere Castle in Hampshire. But the suggestion that Dotcom purchased the house is completely wrong. He rents it.

The third factual problem with which I have some difficulty – but I am prepared to give Keen the benefit of the doubt – lies in his assertion about the demise of the HMV record retail outlet on Oxford St which he suggests closed down in 2014. I assume he means the one located at 363 Oxford St which in fact closed in 2013 but reopened later that year. But if that store did close in 2014 he is incorrect to suggest that an HMV music store is not on Oxford St because there is one at 150 Oxford St nearby to the Oxford Circus tube station. I know. I was there in September last year and made some purchases.

I guess that the problem that I have with three examples of factual spin, misuse or misinterpretation is – how many other errors are there. One is left with an uncomfortable feeling about the veracity of the book.

But it is not just a question of fact checking. If the title doesn’t give the away author’s perspective the first few pages do, and the further one reads, the clearer it becomes that this is not a true objective analysis but something of an hysterical polemic that harks back to a mythical Golden Age. Keen is very quick to use perjorative language to indicate his disapproval. For example, it is clear that he actively dislikes Travis Kalanick, the founder of Uber whom he describes as a “hard-core libertarian” who “paced relentlessly around the Failcon stage as if he’d just strode out of an Ayn Rand novel.” The whole book is critical of what he calls disruptive libertarianism and he even takes John Perry Barlow and the Declaration of Independence of Cyberspace as symptomatic of the problem. He says:

“According to Stanford University historian Fred Turner, the Internet borderless idealism, and its ahistorical disdain for hierarchy and authority, especially the tradition role of government, were inherited from the countercultural ideas of Internet pioneers like WELL founder Stewart Brand and the “Declaration of Independence of Cyberspace” author, John Perry Barlow.”

He decries what he calls the “winner take all” approach to the development of Internet startups, is highly critical of the way in which those who, having developed and managed startups to a successful outcome, use the money that they have made through their creativity, entrepreneurship and most of all risk. He overlooks those realities of business. They made it. They took the risk – a risk I might not have been prepared to take in similar circumstances. Surely they can spend it as they wish. For myself, I am unfamiliar with a sense of envy of a person who is better off that I am, nor do I resent them for it, nor seek to acquire that wealth or part of it by some form of “Robin Hood” wealth redistribution process.

Keen uses the demise of Rochester, New York and its once prime employer Kodak as a metaphor for the demise of traditional manufacturing and employment models and lays much of the blame at the feet of on-line startups like Instagram. According to Keen, Kevin Systrom, who had a deep interest in photography, thought about whether there could be an application that enabled users to manipulate photos by the application of filters to give the pictures a warm fuzzy glow or a sepia tinge.

“He spent the rest of the day lying on a hammock, a bottle of Modelo beer sweating by his side, as he typed away on his laptop researching and designing the first Instagram filter.

And so Instagram and its photos – what Systrom, shamelessly appropriating Kodack’s phrase, calls “Instagram moments – were born”

And so Systrom became what Keen prejoratively describes as “a star of the winner takes all economy.”

There are two major themes that underlie Keen’s book. One is that once upon a time – which is how all good fairy stories start – there was a “good time” when everyone was doing well, people were socially responsible, and where people made and sold tangible products like records and clothes and other things. In this golden age there were no great disparities between rich and poor, there was a certain egalitarianism and a relatively even distribution of wealth. He cites the music industry and photography as examples. Indeed when he speaks of Kodak his nostalgic yearning hearkens back to Kodachrome and the song by Paul Simon, but even before the digital era Kodachrome was falling away in the face of colour prints.

The decline of Kodak is probably far too complex to go into here, and I do not think that it was as simple as Keen would like to imagine. In a nutshell, Kodak did not forsee the way in which the digital camera would supplant film. And this is very strange because Kodak in fact invented the first digital camera. But it did not change its business model and by the time it realised what was happening, it was too late.

Keen expresses not concern but loathing for what he describes as the privileged few who are beginning to isolate and cocoon themselves and their communities in unusual buildings and workspaces and who have used their economic power to exclude others from neighbourhoods or beaches. Given his disparagement of the works of Ayn Rand I am surprised he didn’t draw the comparison with John Galt’s impenetrable and hidden mountain community in Atlas Shrugged.

The second theme lies in the solutions Keen proposes. As I have said the book is a polemic but it is not just directed towards the development of Internet based business models like Google, Uber, Instagram, Facebook and the like. Rather it is directed at free enterprise capitalism, successful entrepreneurship and innovation. By the time I was three-quarters of the way through the book I thought I was reading about America in the time of the Rail Barons, Leland Stanford and J.P. Morgan or the oil tycoons like Getty and Rockefeller and the steel magnates like Andrew Carnegie. Indeed, Keen refers to the lessons of history and these very examples. And the solution he poses?  Let the government do something about it. Government approaches are already happening, he says, in the EU with the development of the Right to be Forgotten and examining some of the consequences behind Uber and AirBnB although to be fair I hardly think that a person’s failure to pay tax on the income from a rented room can be laid at the feet of AirBnB.

The answer, he says, is to use the law and regulation to force the Internet out of its prolonged adolescence. He cites examples like the ECHR decision on the responsibility of website owners to police users’ comments, revenge porn laws in England and California and Piketty’s call for a global tax on plutocrats like Mark Zuckerberg or Larry Page. He then goes on to suggest that there are other methods available that do not involve government – in the form of self-regulatory steps like the decision by credit card companies to work with the Police to stop payment to websites that distribute stolen content as well as steps to cut off the flow of advertising revenue to websites profiting from illegal content. No wonder he doesn’t like Ayn Rand. His proposals are the stuff of a libertarian nightmare.

The funny thing is that Keen believes that external controls on the Internet will not undermine innovation, but suggests that future innovation will require partnering with government in areas such as education and healthcare. But the one of the strengths of the digital paradigm has been the quality of permissionless innovation. You don’t need regulatory approval to bolt an application on to the Internet and see if it attracts an audience. Once regulators step in, red tape inevitably follows.

The final theme that Keen develops, and one that he notes has been lacking since Netscape burst on to the scene as the first of many subsequent “killer apps”, is that of social responsibility – another issue with which he runs head to head with the libertarians. The digital elite has to become accountable for the most traumatic socioeconomic disruption since the industrial revolution. Really? That sounds very much like Dr Floyd Ferris, Dr Robert Stadler and Wesley Mouch from Atlas Shrugged.

I have written elsewhere about the issue of paradigm shifts especially in the area of communications technologies but the theory applies in other fields. Disruption is a fact of life. All new technologies have a disruptive effect. Generally their introduction has been a little more gradual than the pace of change that the digital paradigm allows. Who could have forseen urban sprawl, enabled by the motorcar, in the days when cars were “horseless carriages.” What Keen, and to an extent Nicholas Carr who is also something of an Internet dystopianist, fail to understand is the meaning of a quote that he frequently cites. We shape our buildings and thereafter our buildings shape us. Marshall McLuhan modified it a bit – we shape our tools and thereafter our tools shape us. What Keen wants is for the law to run interference on the way that either tools are shaped or the way in which they are going to shape us. Keen also quotes the famous “the medium is the message” but completely fails to undestand what it means – but I won’t go into that here.

I don’t have a quibble with Keen’s values, although they may be based to a large extent on nostalgia. He is quite entitled to hold them, and good luck to him. What I do quibble with is his unwillingness to understand that paradigmatic change is just that. The change will be revolutionary and although it won’t turn the whole world or society upside down it will change it significantly and the change will be dramatic and at times uncomfortable. Keen may seek comfort in his older past and the communitarian values that were formed within the technological context of those times. But change is inevitable and with those changes are going to come changes in behaviours and ultimately in values that underpin our society.

And this brings me to our understanding of broadcasting and TV news and a reflection of attitudes which, while not so expressed with such vitriol as those of Andrew Keen, nevertheless indicate a lack of understanding of paradigmatic change.

An interesting article appeared in the Sunday Star Times on 7 June 2015 entitled “The War on Seriousness” and posed the question “Was the death of Campbell Live the last nail in the coffin of prime time current affairs TV? Or are we on the brink of brave new ways of telling the stories that matter?” The article is an interesting if somewhat nostalgic piece, longing for the heyday or what it calls “serious” television news which has given way to “fluff over substance” observing  “for a decade the internet has been chewing away at the foundations, gobbling up the advertising revenues that sustain New Zealand’s commercial media, and now the foundations seem to be crumbling. ” As Auletta points out, advertising on the Internet is cheaper than on primetime and it can be more targetted too.

The article seems to have ignored the fact first of the plethora of new communications systems and secondly that public expectations of content have changed as a result of these media changes. It may well be that serious journalism is suffering as a result of this, but serious journalism developed in an entirely different paradigm – that of print – and as new methods of communication of information came along – broadcast radio and radio-with-pictures (TV) so too did journalism adapt.

The common feature between newspapers, radio and TV is that they are based on a monolithic one-to-many distribution system that is seriously challenged by the nature of the distributed many-to-many model that underlies the Internet. Even although TV has an impact that cannot be matched by other mainstream media like radio or newspapers I wonder if it is going a bit far to say that it is unmatched by the information distribution system enabled by the Internet. The immediacy in the living room, the ability to see the “whites of the eyes” (a phrase used by Justice Harrison in Aeromotive v Page when commenting on the value of face-to-face cross-examination) is easily available in content other than a main stream TV broadcast and although it is suggested by Paula Penfold of TV3 that TV is accessible, especially free-to-air, especially in primetime, especially on a major channel, such a statement relies on the assumption that in the twenty-first century people actually want to engage with appointment based news transmissions when other methods of acquiring news content at a time that is convenient are available. As Lord Neuberger said when announcing the UK Supreme Court “video on demand” service on 5 May 2015  “Now justice can be seen to be done at a time which suits you.”The same could apply to the consumption of news content.

Peter Thompson, a lecturer in media studies at Victoria University, is quoted in the article as saying:

“There’s a social contract between the state and the public, and it needs to be mediated. We need a fourth estate that holds these people to account. If the news media aren’t able to reflect the society that we live in such that we can identify our issues, moral concerns, political policies, economic policies, we’re impoverished.”

That may be so with a State broadcaster. But I wonder if the proposition overlooks the nature of commercial television, particularly if the channel is other than publicly owned. Thompson goes on to suggest that the government consider a levy on commercial broadcasters (a sort of “polluter pays” principle), a levy on telecom services such as cell phone and broadband fees, a good old-fashioned public licence fee, or other more complex overseas revenue models. Back to the future with a vengeance!! When all else fails bring in the law and the regulators. Andrew Keen would definitely approve.

Some of us remember the bad old days of compulsory licence fees if one owned a television. Given the dire nature of much of the content on free-to-air TV one wonders whether such a fee would be value for money. Perhaps an argument could be mounted that the state has an obligation to fund a free and independent news service under s. 14 of the New Zealand Bill of Rights Act although such an argument might be a bit of a stretch.

I think the problem seems to be how the Fourth Estate should undertake promulgation of information in the public interest in a new paradigm. To mourn the passage of lack of depth in current affairs and the like is to engage in an unhelpful, rear view mirror exercise in nostalgia. There is no entitlement by mainstream news media to a particular model of news dissemination but complaints by media pundits would suggest that it is so. Rather, news media should look for new opportunities that new communications technologies present. There can be no place for sclerotic communications systems in the face of continuing dynamic, disruptive and transformative change. One should recall (and I don’t want to sound like a determinist but it is hard not to) in this time of revolution and evolution of communications systems, the comment of the Borg –  “resistance is futile”.

Law, Information and Technology

This is the text of a keynote speech that I gave to the New Zealand Law Society seminar on Technology Law held in Auckland on 20  June 2013. Because of appalling weather, the Wellington seminar was unable to be held but will be rescheduled (hopefully) later this yearThe powerpoint presentation used in the address may be found here.

It has been said that the only asset that a lawyer has is time.  This comment probably originated to justify time costing, a practice which, over the years, has become highly contestable.  But I would dispute the fundamental assertion.  A lawyer’s stock in trade is not time but it is information.  The law is no more and no less than a information acquiring, processing and sharing occupation.  The law in itself is information that limits or allows certain activities.  So that a lawyer may properly advise his client there is an information flow from client to lawyer.  The lawyer may then be required to look up the law in which case there is an information flow from the source of law, be it legislation or cases, to the lawyer.  The lawyer then communicates the information to the client thus the original information flow is reversed.  On the basis of the information (advice) received by the client, the client may make a choice as to the course of action that he or she follows.

Likewise Court proceedings are all about information.  Information takes certain forms, be it by way of pleadings which inform the Court what the dispute is about, evidence which informs the Court as to the strength of the assertions contained in the pleadings, submissions by which the Court is informed as to the possible approaches that it may adopt in determining the outcome, and from the Court to the lawyers and the parties when it delivers a decision.  In the course of processing the decision the Judge or Judges will embark upon their own information acquisition activities, looking up the law, checking the assertions or alternatively having recourse to an internal information exchange involving Judges Clerks.

In some way shape or form these have been  fundamental realities of the practice of law.

Before the introduction of the printing press the law was a mixture of primarily an oral culture supplemented by hand written manuscript material.  The introduction of a printing press enabled lawyers to approach and access information in a different way.  The printing press was utilised by the State to print legislation incorporating lengthy pre-ambles, which are as much political propaganda as anything else particularly during English Reformation.

Case books, which had been formerly hand written were reduced to print. In time the fundamental qualities underlying the content provided by the printing press – stability of text, fixity and standardisation of content, and wide spread dissemination allowed for the development of precedent which could not happen in the absence of a reliable text to which reference could be made.  It is also possible that legislation in print, and indeed the reduction of much legal information to print in the 16th century allowed lawyers to focus more carefully upon textual analysis and the way in which the printed word could be interpreted, giving rise to principles of statutory interpretation.

The printing press is an example of the impact of an information technology on the law.  My suggestion is that any new information technology is going to have an impact upon occupations or professions whose business is information. The rise of digital information technologies has already significantly changed the way in which we practise law.  Early examples can be seen in the introduction of word processing and computer based trust accounting. But they are earlier and rather clumsy examples of the way in which technology enables new ways of approaching information.

What we need to understand about new information technologies is that they have two major aspects.  One is the content layer and we are immediately familiar with this.  In fact it is probably the main thing that we think about when it comes to information technologies.  But there is more to it than that.  Every new information technology – and this has been the case from the printing press onwards – has its own particular properties or qualities that significantly differentiate it from other earlier information technologies.  This is particularly the case with digital information systems.  Examples of these properties are

  • Persistence,
  • Continuing change or what you could refer to as the disruptive element,
  • Dynamic information
  • Delinearisation of information
  • Dissociative enablement,
  • Permissionless innovation,
  • Availability
  • Participation
  • Searchability
  • Retrievability.

.Once you begin to understand the importance of the qualities or properties of a new information technology then you begin to get some insight into Marshall McLuhan’s comment “the medium is the message.”[1]   Although we may be dazzled by the content which McLuhan suggested was the piece of meat that attracts the lazy dog of a mind, we can begin to get some understanding of how it is that new information technologies are going to change not only our approaches towards information but also some of our fundamental behaviours.  This may reach the point where even the values that we may attribute to information that underlie certain behaviours may themselves change.   And this is the case with the law.  One only needs to consider the rise of remote evidence giving – both spatial as the case with audio visual links or temporal as is the case with pre-recorded evidence – to understand the revolutionary impact that these forms of evidence giving are going to have upon the traditional Court case.  Technology can enable the “non-presence” of witnesses. Formerly, court cases have been all about physical presence of all the “players”.  Indeed in the early days of pre-recorded evidence or audio visual links Judges scrambled to find reasons why these technologies should not be used emphasising among other things the importance of presence.[2]

However there are hidden sides to the impact of new technologies and these lie in the way in which the properties that I have described of new technologies influence us.  Marshall McLuhan said “we shape our tools and thereafter our tools shape us” and this of course gives rise to the question of whether or not the internet changes us forever.  Underlying this theory is the concept of neuroplasticity – the ability of the brain to adapt to and learn from new stimuli.   The concept of neuroplasticity was picked up by Nicholas Carr in his book The Shallows: How the Internet is changing the way we think, read and remember.[3]  His book, based upon an earlier article that appeared in the Atlantic, has as it thesis that the internet is responsible for the dumbing down of society based upon the way in which our minds respond both to the wealth of information and its availability.

The neuroplasticity argument is picked up by Susan Greenfield[4] who believes the web is an instant gratification engine, reinforcing behaviours and neuronal connections that are making adults more childlike and kids hungry for information that is presented in a super simplistic way but in fact reduces their understanding of it.  Greenfield is of the view that the web spoon feeds us things to capture our attention. This means we are learning to constantly seek out material that stimulates us and our plastic minds are being rewarded by our “quick click” behaviour.  We want new interactive experiences and we want them now.

This view is disputed by Aleks Krotoski[5] who firstly observed that there is no evidential support for Greenfield’s propositions which pre-suppose that once we used the web we will forever online and never log off again.  According to Greenfield, says Krotoski, we become connected to our computers and other devices in a co-dependent exclusive almost biological way ignoring where how and why we are connecting.  Krotoski, for example, disputes internet addiction, internet use disorder or neurological rewiring.

In some respects Carr and Greenfield are using the “low hanging fruit” of technological fear[6] to advance their propositions.  Krotoski’s rejection of those views is, on the other hand, a little too absolute and in my view the answer lies somewhere in between.  The issue is a little more nuanced than whether or not the Internet is dumbing us down or whether or not there is any evidence of that.

My argument is that the impact of the internet lies in the way in which it redefines the use of information and the way we access it, process it, use it, respond to it and our expectations of it and its availability.

This may not seem to be as significant as Carr’s rewiring or Greenfields neuroplasticity but it is, in my view, just as important.  Much of our decision making is based upon information.  Although some of our activity could be termed responses to stimuli, or indeed it might be instinctive, most of the stimuli to which we respond can in fact be defined as information – if not all of it.  The information that we obtain when crossing the road comes from our senses and sight and hearing but in many other of our activities we require information upon we which may deliberate and to which we respond in making decision about what we are going to do, buy and so on.

And paradigmatically different ways of information acquisition are going to change the way in which we use and respond to information.

Elizabeth Eisenstein argues this in considering the impact that the printing press had upon intellectual elites and the intellectual activity of the Early modern period.  The first information technology was an enabler – an agency of change – for the intellectuals of the Renaissance, the Reformation and  the Scientific Revolution.  And it had its own impact upon the intellectual elite of the English lawyers.[7]

I would suggest that in the digital information paradigm we are seeing similar although not identical, changes.  I am not talking about electronic land transfer and company registrations in and of themselves.  These in my view represent what could be called content layer changes.

There are other changes that are taking place that arise from some of the fundamental qualities that underline new digital communications technologies – and all communication technologies have these particular properties[8] or qualities underlying them and which attach to them; from the printing press through to the wireless through to the radio through to television and into the digital paradigm.  It is just that digital systems are so fundamentally different in the way in which they operate and in their pervasive nature that they usher in a new paradigm.[9]

But to get back to legal practice.  I mentioned land transfer transactions and company registration.  What in fact is happening with these transactions is that information technology de-personalises them. For the lawyer sitting in his or her office, the transaction takes place with a few mouse clicks and the entry of a few authentication codes and that’s an end to it.  The transaction is de-personalised in the sense that this manner of closing a transaction – as the Americans put it – or settling a transaction means that the gathering together of the legal representatives of the various players to exchange documents, check discharges of mortgage and the like no longer occurs.  These gatherings were important in terms of the culture of the pre-digital lawyer.  They developed a sense collegiality among the lawyers involved.  They allowed for the development of trusted relationships based upon continued personal contact and often upon the making of an undertaking coupled with a handshake.

Whether that vacuum arising from the use of technology has been filled with something else is not for me to say and I make the observation not with any sense of nostalgia but as an example of the way in which technology induces changes.

Consider email.  To discuss email in and of itself is to focus upon the content layer.  What I would like you to think about is the behavioural or changes in routine  enabled by email along with the quality of the communication that takes place.

But there is more to technological change than the way in which we modify our behaviours in the routine of practice.  Richard Susskind a British lawyer, technology expert and futurists has written four books – The Future of Law (1996), Transforming the Law (2000), The End of Lawyers (2008) and Tomorrow’s Lawyers (2013).  Susskind is of the view that the legal industry – note that he uses the word industry and not profession – is in an evolutionary state.  Technology, or a better designed process, is reducing the need for expensive, artisan trained lawyers.  In many cases by removing the lawyer from the value chain, cost goes down, quality goes up and service delivery time becomes faster.  This is because, among other things, the legal services market is being upended by new entrants who are offering legal inputs and legal products to law firms, legal departments and average citizens.  One example may be found in legal process outsourcing but there are many others.

Susskind argues that legal work is migrating from bespoke work[10]  to standardised[11]  to systemised[12]  to packaged[13]to commoditised.[14]  These changes are made possible by identifying recursive patterns in legal forms and judicial opinions which enables the use of process and technology to routinise and scale very cheap and very high quality solutions to the myriad of legal needs.

Susskind points out that clients do not want to pay a lot of money for their legal solution.  More significantly there is more money outside the shrinking quantity of bespoke legal work.  Susskind observes that the greatest profit making opportunities are lodged between the systemised and packaged parts of the continuum.  If an organisation can continuously innovate and create systemised or packaged solutions to legal issues and problems that can be sold over and over again to a large base of clients, the organisation can enjoy the prospect of making money while you sleep.[15]

This constant innovation approach is one of the challenges identified by Susskind which he describes the “more for less” challenge.[16]  Liberalisation is another – the opening up of legal work beyond traditionally educated and qualified law practitioners who are protected by legislation and who hold the monopoly on legal work.  These changes may be found in our present law practitioners’ legislation along with current changes to legal aid.  Although this movement is not worldwide Susskind anticipates that when such liberalisation gives rise to legal businesses and legal services that better meet clients needs and a growing “more for less” challenge then this will have a ripple effect around the world.

But it is in the field of information technology that Susskind has interesting things to say at least from my perspective.  Although many lawyers have computer equipment in their offices generally the legal profession, according to Susskind, has not been swift to embrace new systems or, if they have adopted them, to utilise the maximum potential of them.  Many lawyers consider that IT is over hyped but few will have heard of Moore’s Law, suggesting that every two years or so the processing power of computers would double and its cost cut in half.  The fact of the matter is it is now foreseeable that the average desk top machine will have more processing power than all of humanity combined.  It seems to be strange that it might take something like that to force lawyers to rethink some of their working practices.

Susskind considers it inconceivable that information technology, which is radically altering many aspects of our economy and society, may comfortably be ignored by the legal profession who may consider that legal work will be exempt from any change. That is a fatal view for a profession whose business is information. The fact of the matter is that information technology – a slave to the property of continuing disruptive change – enables participation via Web 2.0 where users become providers, readers become authors and recipients become participants and all users can contribute.  New ways of finding information and producing it, collaborating with one another whether as bloggers, users of social networks or contributors to shared online resources such as Wikipedia and Youtube are developing.  And because of continuing disruptive change there is no finishing line for IT or the internet.  Examples of such change may be seen in the fact that 3 years ago very few people had heard of Twitter and 7 years ago Facebook wasn’t on the map.  The problem with resisting twitter and new forms of communication in a profession where information is what we deal with is what Susskind calls “irrational rejectionism” – the dogmatic and visceral dismissal of a technology with which the sceptic has no direct personal experience.

As has so often been said and in science fiction movies – resistance is futile.  We need to be open minded as lawyers because we are living in an era of un-precedented technological change and the fact of the matter is not so much a question of automating but whether or not lawyers can innovate and practice law in ways which could not have been done in the past.

I have just outlined a few issues that impact upon lawyers and the legal profession and the way in which technology presents challenges.  I could go on and consider the issue of legal education because if the profession is going to change then the training systems for the new professionals are going to have to be responsive to those changes as well.  But that’s another story.


[1] Marshall McLuhan Understanding Media: The Extensions of Man  Critical Edition W Terrence Gordon (ed)(Gingko Press, Berkeley Ca 2003)

[2] Aeromotive v Page (High Court, Hamilton CP 31/99 16 May 2002 Harrison J) For discussion see David Harvey Internet.Law.NZ 3rd ed. (Wellington, LexisNexis, 2011) p 512 et seq

[3] (Atlantic Books, London 2010). See alson Nicholas Car “Is Google Making Us Stupid” Atlantic Magazine 1 July 2008 http://www.theatlantic.com/magazine/archive/2008/07/is-google-making-us-stupid/306868/  (last accessed 31 May 2013)

[4] See especially Susan Greenfield “Living On-line is Changing Our Brains” New Scientist, 3 August 2011 http://www.newscientist.com/article/mg21128236.400-susan-greenfield-living-online-is-changing-our-brains.html (last accessed 31 May 2013) For this and for her assertions of “internet addiction” she has she has been criticised by Dr. Ben Goldacre for claiming that technology has adverse effects on the human brain, without having published any research, and retracting some claims when challenged. Goldacre suggested that “A scientist with enduring concerns about a serious widespread risk would normally set out their concerns clearly, to other scientists, in a scientific paper”  Ben Goldacre, “Serious Claims Belong in a Serious Scientific Paper” The Guardian 21 October 2011 http://www.guardian.co.uk/commentisfree/2011/oct/21/bad-science-publishing-claims (last accessed 31 May 2013)

 

[5] Untangling the Web: What the Internet is Doing to You  (Faber, London 2013). Presentation by Aleks Krotoski at the Writers and Readers Festival, Auckland 19 May 2013. Personal discussion between the author and Aleks Krotoski 19 May 2013.

[6] Sometimes referred to as “The Frankenstein Complex”

[7] See David Harvey The Law Emprynted and Englysshed: The Printing Press as an Agent of Change in Law and Legal Culture 1475 – 1642 (Unpublished PhD Thesis, Auckland University 2012) http://www.scribd.com/doc/103191773/The-Law-Emprynted-and-Englysshed-The-Printing-Press-as-an-Agent-of-Change-in-Law-and-Legal-Culture-1475-1642 (last accessed 31 May 2013)

[8] Eisenstein identified 6 qualities that print technology possessed that differentiated it from the scribal form of written communication of information. These are

a) dissemination

b) standardisation

c) reorganization

d) data collection

e) fixity and preservation

f) amplification and reinforcement.

See Elizabeth Eisenstein The Printing Press as an Agent of Change One Volume(Cambridge University Press, Cambridge 1979) esp. At Chapter 2 pp 71 – 126

[9] See above for some of the qualities of digital information technologies.

[10] Courtroom practice

[11] Common form documents for a merger

[12] Document assembly for estate planning

[13] A turnkey regulatory compliance programme

[14] Any IT based legal product that is undifferentiated in a market with many competitors

[15] For a discussion of challenges facing the legal profession, including a consideration of Susskind’s work see William D. Henderson “A Blueprint for Change (2013) 40 Pepp. L Rev 461.

[16] For discussion see Richard Susskind Tomorrow’s Lawyers (Oxford, Oxford, 2013) esp at p 10 et seq.