McGill Law Journal ~ Revue de droit de McGill
EYES ON THE HORIZON
Karen Eltis, Courts, Litigants and the Digital Age: Law, Ethics and
Practice (Toronto: Irwin Law, 2012), pp 135. ISBN 978-1-55221-
233-2.
Christina Spiesel *
The digital age, the time of enormous cultural change we are living in
right now, is relentlessly affecting all of our institutions, forms of commu-
nication, and social habits. The title of Karen Eltiss book, Courts, Liti-
gants and the Digital Age: Law, Ethics and Practice,1 signals that she is
addressing current issues in our justice system arising from this techno-
logical shift. It was a pleasure to read such a thoughtful, nuanced, and
broadly informed book. Eltis brings to her writing considerable intellectu-
al resources, her previous work on privacy and security, and her in-depth
knowledge and training in comparative law. I found myself oddly moved
odd because it is a rare experience to be moved when reading professional
legal writing, with its typically dispassionate probing of questions and
commitment to exhaustive citation to other legal texts. So I, a scholar, not
legally trained, who writes about aspects of the law in the context of digi-
tally mediated culture, was surprised.2 This slender book gently appeals
for engagement with new circumstances within the discourses of the legal
profession. I am sure many readers who are participants and not just ob-
servers in justice systems will find this book useful too, for it raises truly
important questions, contains clear explanations, and makes recommen-
dations for policy.
* Senior Research Scholar in Law and Fellow of the Information Society Project, Yale
Law School; Adjunct Professor of Law, Quinnipiac University School of Law.
Christina Spiesel 2013
Citation: (2013) 58:3 McGill LJ 1061 ~ Rfrence : (2013) 58 : 3 RD McGill 1061
1 (Toronto: Irwin Law, 2012). Karen Eltis is Canadian and is a professor at the Universi-
ty of Ottawa. She also teaches at Columbia Law School in the United States. Her dis-
cussion is largely about the Anglo-American legal system with special focus on cases in
Canada, but she does meaningfully comment on the Continental civil law system and
urges that we learn from it where appropriate.
2 The author is based in the United States and writes from that perspective. She wishes
to thank Judith Resnik, Sydney Spiesel, and Neal Feigenson for their contributions,
and wishes to relieve them of any blame for errors, which are all her own.
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This book is principally about readers and writers of text, and some is-
sues of uncertainty introduced to texts by the digital world: instability,
the problems of authentication and the general lack of error correction,
gatekeeping (and its absence), and the temptations of the virtual worlds
we visit. Eltiss analysis does not particularly probe the role of the mas-
sive influx of pictures into legal discourses, and she does not take on mul-
timedia.3 Because this book is a call to engage, I will take the reviewers
prerogative and raise some concerns not dealt with directly by the author,
expand on some issues that are only sparingly referred to (probably for
reasons of space) but which are important to consider, and I will explain
laterwhy I was moved. But first, I will give readers of this review an all-
too-brief summary of the scope of Eltiss book.
Courts, litigants, the digital age, law, ethics, practicethese are global
terms, and while her work touches upon all of them, Eltis has wisely nar-
rowed her discussion to what can be effectively covered in a short book
clearly intended for those who haveor should havea professional in-
terest in the issues it raises and little time to wade through a large mono-
graph. The language is accessible, and nonlegal readers may well find it
very interesting to read about the Internets impact on courts and judges,
juries, (by implication) lawyers, and court administration, even if the au-
thors targeted readership is inside those institutions. What, in her view,
has the digital age in particular conferred on courts?
Eltiss answer involves a knot of interrelated issues pertaining to pri-
vacy, security, and publicity, as digitized legal text becomes widely avail-
able and as judges, litigants, and the public (some of whom become jurors)
use social media, creating a new kind of text that can have consequences
for the legal system. Legal texts are not behind walls, and neither are so-
cial media texts. Ready access to the vast library of the Internet confers
new research abilities on all, including on judges. How can the Internet
serve justice and not undermine it when courts are sites of the controlled
revelation of facts that are tested? Should judges do background research
on facts related to cases before them? What about jurors, perhaps tempted
to do their own Internet searches and use social media while serving on a
trial? Information, good (reliable) and bad (running from the ill-informed
to crafted falsehoods), is widely dispersed across the Internet and availa-
ble to all participants in legal action, including judges. The unfiltered (by
the courts) results of searches will be available to anyone who looks for
3 For full disclosure, I am a co-author with Neal Feigenson of a book about the visual
turn as it is affecting the law: Neal Feigenson & Christina Spiesel, Law on Display: The
Digital Transformation of Legal Persuasion and Judgment (New York: New York Uni-
versity Press, 2009).
BOOK REVIEW 1063
them.4 In North American common law systems, judges must give their
reasons and must support them with authoritative knowledge of the law
and the facts. To the degree that judges opinions are based on materials
from the Internet, there is danger of improperly vetted information creep-
ing into the record and of errors in interpretation arising because of tex-
tual errors resulting from the instability of the electronic medium itself.
Eltis asks what happens to the judicial record and to the authority of our
courts in the flickering electronic world of unstable text, in which errors of
record and errors of fact can easily happen just from the (mal)functioning
of the system itself.
The Internet is a dynamic medium, forever changing, but paradoxical-
ly, it never forgetsas unfortunate victims of identity theft discover when
they try to repair their credit. Once posted, information cannot be re-
called, since copies can be proliferated beyond any ability to find all of
them, making it impossible both to ever correct bad information and to
have confidence that citation to materials will be stable. Links get broken
or become irrelevant or inaccessible as machines on which files are stored
go off-line. In the legal context, stability is important so that those wish-
ing to retrace the development of a judges thinking may do so easily; for
this, the Internet offers a promise (that materials will be easy to locate
and access) that it cannot fulfill. Even if judges follow Eltiss wise sugges-
tion to maintain hard copies of electronic materials they have either used
for background or cited in documents, those reading the judges opinion
may not have access to these materials. This lack of authoritativeness
and durability effectively cripples the Internets ability to tell courts any-
thing of real substance about the reality it purports to depict.5
Material available through Internet searches can include social media
postings as well. Social media are by definition sites of informal, often
spontaneous communications where expectations regarding demeanour,
proper address, and conventions of acceptable content, grammar, and
4 Paradoxically, though, searches themselves are filtered by the search providers algo-
rithms, which constitute a kind of filter; as advertising revenue becomes ever more im-
portant, searches can become inflected by outside interests. Search engine design uses
indexing (keywords help with this), ranking (prioritizes items in the results), and what
the search engines are now able to learn from search requestsfor Google alone, 11.7 bil-
lion requests in April 2012: see comScore, Press Release, comScore Releases April 2012
U.S. Search Engine Rankings (11 May 2012), online: comScore
of invisible considerations of context that influence what the search engine shows in re-
sponse to a query (returns). See e.g. Lucas D Introna & Helen Nissenbaum, Shaping the
Web: Why the Politics of Search Engines Matters (2000) 16:3 The Information Society
169.
5 Eltis, supra note 1 at 45.
1064 (2013) 58:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
spelling have very different practices than we are accustomed to in writ-
ten and spoken legal discourses. Site members can view one anothers pro-
files, and boundaries between friends and friends of friends on-site can
quickly become obscured. Judges and jurors use these forums along with
millions of unknown others.6 This means that judges can face a loss of
reputation or be seen in an adversarial light. Judges at trial are supposed
to maintain the appearance of impartiality, so judges expressing personal
opinions about matters under discussion on a social networking site may
be seen to be taking sides or expressing values that someone may consider
adversarial or improper for a judge to express. Or, like everyone else, they
may reveal information in the flow of conversation that might be appro-
priate for an inner circle but not the world at large. As well, litigants can
be exposed to damaging release of information; jurors can be tempted to
research cases on their own or to share trial information and opinions in-
appropriately; and information about jurors is discoverable as well.
In short, the curtains that shielded the courts from too much openness
have been removed. Privacy in court documents was maintained in part
because of the need to go to court to access them. Further, court proceed-
ings take place in special rooms with ritual behaviours, all of which con-
tribute to setting the court in a special and regulated space. Probably only
participants in the legal system were truly aware of the elaborate balanc-
es between public disclosure and transparency, on the one hand, and pri-
vacy and the protection it can provide, on the other, that informed both
formal and informal court practices in the past. So, for instance, trial doc-
uments are public in the analogue world, but as it takes considerable en-
ergy and some costs to access them, all participants had some measure of
privacy in the disclosure of personal information. Now, anyone with an
Internet connection and basic searching skills can find vast amounts of in-
formation that would have formerly been hidden. Eltis provides cases and
examples for all of these situations and others. If we cherish a culture
that takes the rule of law seriously, what do legal professionals need to
know in this changed environment? What new knowledge is required, and
what competencies should professionals possess? Whatever the complete
answer is, it surely ought to include prudence about technology and cau-
tion about its uses: judges and lawyers need advance thinking and not
6 The number of judges on social media profile sites continued to rise. In 2012, 46.1 per-
cent of judges responding to the survey reported using the sites, with the majority (86.3
percent) on Facebook (Regina Koehler & Christopher J Davey, 2012 CCPIO New Me-
dia Survey: A Report of the New Media Committee of the Conference of Court Public In-
formation Officers (St Petersburg, Fla: Conference of Court Public Information Officers,
2012) at 5). Facebook itself became the worlds third most populous nation in 2010:
see Status Update: Facebook Has Become the Third-Largest Nation, The Economist
(22 July 2010), online: The Economist
BOOK REVIEW 1065
just reactive thinking. Eltiss suggestions are specific: Preserve hard cop-
ies of important materials from the Internet. Undertake an affirmative
obligation to protect privacy. Eltis also recommends that judges go slowly
in posting opinions rather than rushing to proclaim the news. These hab-
its are consonant with traditional judicial values of impartiality, fairness,
diligence, and dignity,7 even if they have a new flavoursuch as the rec-
ommendation that judges should be very careful of using Wikipedia as a
source.
Given the inherent problems that arise from our digitally networked
lives, the author further asks, how can judges be participants in the digi-
tal age? If they simply refuse to engage, they will not be sharing a culture
with the litigants who appear before them, not to mention the juries that
serve in their courts; if they do engage, they run the risk of inadvertently
losing the appearance of neutrality in the eyes of public, having their pri-
vate lives exposed, and having their dignity and trustworthiness ques-
tioned. Formerly, public figures could carefully control the social face they
would show in very different contexts. That is no longer the case.8
7 For a code of ethics for judges in the United States, see American Bar Association, Mod-
el Code of Judicial Conduct (February 2007), online: American Bar Association
An independent, fair and impartial judiciary is indispensable to our system of
justice. …
Judges should maintain the dignity of judicial office at all times, and avoid both
impropriety and the appearance of impropriety in their professional and personal
lives (ibid, Preamble, paras 1-2).
See also Eltis, supra note 1, ch 5 (Googling The Judge and the Perception of Impartial-
ity: Out of Court Speech, Internet Search Engines, and Judicial Ethics).
8 As I write, there is a very important intellectual property dispute between Apple and
Samsung unfolding in San Jose, California, very close to Silicon Valley. The jury re-
turned a verdict in Apples favour on August 24, 2012. Fans of the litigants have raised
the question of judicial bias in the online technology press: see Greg Sandoval, Apple v.
Samsung: Why Is Judge Koh so Angry?, CNET News (21 August 2012), online: CNET
as well as her in-court demeanour. While using an impartial voice, it is hard not to ask
whether the journalist is engaging in some litigation public relations that could be un-
derstood as part of trial strategy, if the facts of the story originated from one or another
legal team. Another example is the publicity around Justice Thomas of the US Supreme
Court: see Mike McIntire, Friendship of Justice and Magnate Puts Focus on Ethics,
New York Times (18 June 2011), online: New York Times
tively investigated prior to publication and in established media. What about informal
social media posts?
1066 (2013) 58:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
The book suggests that rethinking what the term privacy encom-
passes might help. Instead of thinking of privacy as analogous to spatial
withdrawal to some place or situation where we cannot be observed, over-
heard, and so on, Eltis suggests that North Americans might do well to
learn from Europeans. In the civil law tradition, privacy is conceived as
pertaining to persons, and invasions of privacy are thought to lead to a
loss of meaningful control over the integrity of information.9 Under that
legal conception, people are defined as having personality rights, with
their countervailing duties;10 Europeans are bringing these values to
their media policy-making. Eltis suggests devising a hybrid of the com-
mon law and civil law traditions to ameliorate some of the problems both
of definition and of administration. This may be very difficult to accom-
plish given the degree to which the gathering and circulation of personal
information have been monetized, at least in the United States.
Finally, Eltis reminds us that courts are publishers; in the common
law system, published opinions and their supporting documentation make
the legal record public and visible, thereby providing the ongoing record
that subsequent cases are expected to build on. This fosters confidence in
the legal system that, in turn, engenders a willingness on the part of
members of the public to use the courts to resolve their conflicts. Eltis
fears that now litigants may be hesitant to use the courts for fear of po-
tential worldwide exposure of information pertaining to them, their fami-
lies, their associates, or their enterprises. Openness and access are fun-
damental to the rule of law in democratic countries, and their loss would
be a considerable cultural blow. In articulating these problems, Eltis
points to issues that lie at the heart of justice systems in democratic coun-
triesissues that need to be addressed by members of the court system
themselves. Eltis suggests that it is time for the courts to become both
more knowledgeable about the technology that is affecting them and more
proactive in dealing with those effects. Close to concluding, she writes:
Approaching the networked environment with cautious openness ra-
ther than trepidation or unbridled enthusiasm is a simple but help-
ful stance. The Internet agewith its promises and hurdlescannot
bypass the judiciary and reflection must ensue to ensure that the
benefits of technology are harnessed towards the better administra-
tion of justice rather than subverted for undermining public confi-
dence or further curtailing necessary judicial activities.11
Marc Andreessen would agree that technological growth will not by-
pass the judiciary, but I suspect he and Eltis have conflicting values at
9 Eltis, supra note 1 at 120.
10 Ibid.
11 Eltis, supra note 1 at 119.
BOOK REVIEW 1067
stake. Andreessen, who invented the browser and is now an important
venture capitalist in Silicon Valley, thinks technology is poised to remake
the whole economy. … The next stops … are education, financial services,
health care, and then ultimately government.12 This is a vision of all the
cultural sectors subsumed under a unifying (because submitted to the
demands of software) technological regime. Is the legal system of the fu-
ture, then, a computer application?13 Technology is like water; it wants to
finds its level, says Andreessen.14 This language makes the artificial hu-
man construction of technology into a natural phenomenon that cannot be
argued with. Andreessen asserts that, as a natural force, technology de-
serves and maybe even commands our obedience. If technology simply is,
then people cannot make choices about it, whereas if technology is
thought of as giving us tools that we use, then we ought to have options
for how it is designed and when it is used.15
Here, then, are the questions that must be asked both by the judiciary
and by its public: What is meant by a legal system, and what do we want
12 Marc Andreessen, The Man Who Knows Whats Next, Wired 20:5 (May 2012) 162 at
169.
13 Andreessen considers that the fundamental nature of the Internet is that it gives access
to applications (which include all Web pages) rather than provide information. Applica-
tions are pieces of softwarecomputer programsthat allow users of computers to ac-
complish specific tasks, in contrast to the operating system that governs the basic func-
tions of the computing device. Applications generate or control materials like text or
images that are presented to the user in what is considered the content layer. I am us-
ing word-processing software (an application) to create this piece of writing, which I see
on my monitor. When we consult the Internet, we are reading, seeing, or hearing con-
tent that is made available to us by devices using software. Common sense would tell us
that these representations can be considered speech and could be legally protected as
such. (And yes, there are many unsettled issues around ownership and freedom of ex-
pression in the digital world we have been creating. These issues are too big to discuss
further here.) If, however, we buy Andreessens claim that Web pages are not represen-
tations of content but are, instead, an application, then the pages could be subject to
other kinds of regulation, and perhaps we need not worry about speech issues. In fact,
both things are true: Web pages are generated by software and often permit a variety of
functions for users to deploy to get more content or perform interactive operations (like
doing a calculation or changing the size of an image). They also display content. The
best we can do if we value the protection of speech, then, is to acknowledge that the con-
tent layer should not be confused with the software layer, which Andreessen is trying to
do.
14 Supra note 12 at 166.
15 For a counternarrative about technology, see David F Noble, The Religion of Technolo-
gy: The Divinity of Man and the Spirit of Invention (New York: Alfred A Knopf, 1997).
For a more recent account, see Jaron Lanier, You Are Not a Gadget (New York: Alfred A
Knopf, 2010).
1068 (2013) 58:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
it to be in the future?16 If we value something we call the rule of law, what
values do we express through that idea? Is the rule of law best served by
public or private entities creating software that will be opaque no matter
who develops it?17 That is, can software be transparent in the same way
that written law is?18 Should justice be monetized? This is the path of
technological developmentsome private entity will build a technology,
and there will be costs to maintaining it.19 In a technological regime, those
costs can begin to affect a legal system in a more direct way, just as health
insurance reimbursements may control the uses of certain medical devic-
es or diagnostic algorithms.20 Economic incentives are used to induce be-
haviour, whether it is on the part of the public through systems of taxa-
tion or through pricing of products, or on the part users of software. Soft-
ware controls how people use it through programming defaults, permis-
sions, and denials. Software interfaces can either make it easy for hu-
mans to use or may ignore their needs entirely, imposing undue burdens.
When software is provided to a government entity by a vendor, the vendor
does not necessarily place public good over competitive strategy. Design
decisions will be covered by intellectual property considerations that may
well lead away from best practices. Further, economic incentive can lead
to some technological structures being created and to other possibilities
being neglected. Often, the claim is made that things will be more effi-
16 One rigorously detailed description of a legal system can be found in Robert S Sum-
mers, Form and Function in a Legal System: A General Study (New York: Cambridge
University Press, 2006) (especially chapter 10, The Overall Form of a Legal System as
a Whole).
17 At its most general statement, the rule of law can be defined as all persons and author-
ities within the state, whether public or private, should be bound by and entitled to the
benefit of law publicly made, taking effect (generally) in the future and publicly admin-
istered in the courts (Tom Bingham, The Rule of Law (London: Allen Lane, 2010) at 8).
The laws that control the software are opaque to users.
18 These large topics have developing literatures, and in fairness, all software is not the
same. Readers who wish to pursue this might see e.g. Lawrence Lessig, Code: And Oth-
er Laws of Cyberspace (New York: Basic Books, 1999); Neal Feigenson & Christina
Spiesel, Law on Display: The Digital Transformation of Legal Persuasion and Judg-
ment (New York: New York University Press, 2009) (especially chapters 6 and 7). See
also Danielle Keats Citron, Technological Due Process (2008) 85:6 Wash L Rev 1277.
19 Here is an example of huge costs and little benefit: after the expenditure of half a billion
dollars to create a paperless, integrated case management system for the entire state of
California, the state judicial council voted in March 2012 to halt deployment of the sys-
tem. The beneficiaries to date had been vendors and consultants. See Dan Walters,
California Judicial Council Halts Court Case Management System, The Sacramento
Bee (27 March 2012), online: Sacramento Bee
20 See e.g. Howard Brody, From an Ethics of Rationing to an Ethics of Waste Avoidance
(2012) 366:21 New Eng J Med 1949.
BOOK REVIEW 1069
cient if submitted to a technological regime. Yet will justice emerge from
efficiency?
For different thinkers about the law, the idea of applying technology
lies on a continuum between never and why not go the whole way?, in
part depending on what they believe laws are in the first place.21 Are laws
just rules that must be obeyed? Do courts engage in balancing interests
not encompassed by a set of rules? And, of course, we know that the law
serves multiple social functions, from shaping private behaviours and set-
tling disputes, to large-scale public policy formation; courts and their liti-
gants can become involved at many points along the way. In short, the ju-
diciary is a third branch of government.22 Before we rush to moderniza-
tion through technology, courts need to assess what risks to the rule of
law are involved.
Eltis emphasizes the importance of transparency in democratic legal
systems. Transparency is a word frequently deployed to mean availabil-
itypeople know where to go for information, can see the large shape of a
public legal system, and have rights and some knowledge of what they are
and how to exercise them. Transparency is considered to be the major
means by which people can keep watch on the operations of power, and
the sunshine of disclosure can prevent both corruption and the abuse of
power. What does it mean for the transparency of a legal system that
software is opaque in its operations?23 What does it mean for the rule of
21 Readers interested in visions of law-through-application might begin by exploring the
expert agent SHYSTER, a case-based expert system for lawyers; see e.g. James Popple,
A Pragmatic Legal Expert System, (Aldershot, UK: Dartmouth, 1996). More recently, a
team of legally trained young scholars reported on FantasySCOTUS, a crowd-sourced
software agent designed to predict US Supreme Court decisions: see Josh Blackman,
Adam Aft & Corey Carpenter, FantasySCOTUS: Crowdsourcing a Prediction Market
for the Supreme Court (2012) 10:3 Nw J Tech & Intell Prop 125. The article concludes
with a proposal for a future agent called Harlan that could tell a client how a case will
turn out and tell an attorney not only what will happen, but also how it should be ac-
complished (ibid at 165). The authors conclude, We hope that FantasySCOTUS will
serve as a first step in the evolution from todays time-consuming, customized labor-
intensive legal market to tomorrows on-demand commoditized laws information revo-
lution (ibid at 166). In fact, it appears to be already a nascent enterprise. Meanwhile,
lawyers are being replaced: see John Markoff, Armies of Expensive Lawyers, Replaced
by Cheaper Software, New York Times (4 March 2011), online: New York Times
22 This is the case in the United States, where the judiciary is defined as a third branch of
government. See U.S. Federal Government, online: USA.gov
judiciary should play.
23 The issues here are complicated. Software is opaque because it is composed of layers of
code that become completely incomprehensible the closer they come to the hardware it-
self. And the hardware has logic wired in. In any normal sense, it is very hard for any-
1070 (2013) 58:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
law that judicial independence could be undermined through software it-
self? A simple example: Americans had no way of knowing that their te-
lephony was being copied and sent to the National Security Agency;24 sim-
ilarly, neither would court systems know if any of their private data on a
given network was being observed outside the courts and whether this
capability of outside parties to access the data was built in by a manufac-
turer or vendor, a government contractor, or an anonymous other wrong-
doer.25 As with the first example, it is likely that in most cases no harm
was being done to individuals, at least as long as they were not considered
persons of interest. In terms of courts, should the issue become important
enough to someone with power and vested interests, a little advance
warning of the judges line of thinking might give an unfair advantage to
one side or another in litigation, almost like insider trading.26
peals to the value of transparency, meaning by it the
Lucas Introna, writing on ethics and information technology, also ap-
opening up of the design and development (and implementation) ac-
tivity to multiple stakeholders for ongoing scrutiny and debate …
[and] designing technology in such a way that it is relatively trans-
parent in its operation i.e. that it is possible for ordinary informed
users
(im)possibilities,
to understand
the
(un)intentions,
one to read the governing code in million-line programs generated by teams of pro-
grammers. This situation is further complicated by the fact that software is, for the
most part, protected intellectual property containing trade secrets no company wants to
disclose.
24 For news accounts, see John Markoff & Scott Shane, Documents Show Link Between
AT&T and Agency in Eavesdropping Case, New York Times (13 April 2006), online:
New York Times
See also Ryan Singel, Spying in the Death Star: The AT&T Whistle-Blower Tells His
Story, Wired (10 May 2007), online: Wired
25 Even without mal-intent, back doors are built into software by programmers so that
they can more easily access parts of the code. This is similar to childrens board games
where it is possible to move ahead or fall back many spaces just by landing on a square.
The advantages of such back doors are obvious: with software running through millions
of lines of code, it would take a very long time to locate relevant sections to make ad-
justments or repairs. Yet other programmers understand these practices and are able
to exploit them for external purposes. This is part of the technical tool set of hackers.
See e.g. Cory Doctorow, Your Cellphone Is a Tracking Device that Lets You Make
Calls, BoingBoing (4 September 2012), online: BoingBoing
26 In fact, believing that enhancing predictability would be an aid to lawyers and litigants,
the builders of Fantasy-SCOTUS write, If lawyers could ascertain in advance what the
likely results of litigation would be, they could avoid … disputes altogether and settle
out of court (Blackman, Aft & Carpenter, supra note 21 at 165 ×., citing
Richard Susskind, The End of Lawyers: Rethinking the Nature of Legal Services (Ox-
ford: Oxford University Press, 2008) at 184).
BOOK REVIEW 1071
(dis)functions, affordances/prohibitions of the artefacts that consti-
tute their way of being.27
He hopes that this different approach would make it more possible for the
public to scrutinize the actions of the court system digitally just as it could
in the analogue world.
This is a security issue as well as a cultural issue, and it sits precisely
at the intersection of courts and technology.28 Thinking back to the con-
duct demanded of the judiciary,29 its independence, a value regarded as
crucial to good judgment, is threatened if its networks are penetrated by
outside interests. If the courts use servers connected to other agencies of
government, different branches may well take an interest in information
about ongoing litigation prior to decisions being made. If courts use serv-
ers provided by cloud services maintained by the private sector, the same
interest in data may well pertain.30 But even if courts have their own
servers, when they are connected to the Internet, their security depends
on forces over which courts have no control. The experience of the visitor
to the Internet is of a virtual space, and it is easy to forget that it is in-
stantiated by very physical entitieshardware, wires and cables, power
sources. Devices can communicate with each other because of software.
The software that is permanent and that makes the machine run is called
firmware. Firmware makes choices. Think of processes analogous to all
the automatic systems than run the body outside of human choice. People
at their desks do not have control over the machines that structure the
virtual space of the Internet. Security questions can come up in any layer
of the complex technology architecture. How the hierarchies of machines
are governed is a political and social question.31 Whose information gets
priority in transmission? That is the net neutrality discussion. How many
27 Lucas D Introna, Maintaining the Reversibility of Foldings: Making the Ethics (Poli-
tics) of Information Technology Visible (2007) 9:1 Ethics and Information Technology
11 at 22.
28 See Bruce Schneier, Liars and Outliers: Enabling the Trust That Society Needs to
Thrive (Indianapolis: John Wiley & Sons, 2012). Schneier points to the problem of pro-
tecting security while protecting a community that actually needs the liars and outliers
of his title, who represent an engine for innovation, an immunological challenge to en-
sure the health of the majority, a defense against the risk of monoculture (ibid at 248).
He sees some of our security concerns as a crisis of trust without which no society can
function and which always involves risk. Eltis quotes him as well.
29 See Model Code of Judicial Conduct, supra note 7.
30 Eltis mentions servers in the introduction to the book but does not pursue this topic:
supra note 1 at 11.
31 Needless to say, this is a huge topic. Readers might find it interesting to learn some-
thing about the embedded values in the technology that connects us. See e.g. Laura
DeNardis, Protocol Politics: The Globalization of Internet Governance (Cambridge,
Mass: MIT Press, 2009).
1072 (2013) 58:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Internet addresses ought there to be, and who governs that? The proposal
to have an adult-content domain name falls here. Should the Internet be-
come more hierarchical so that governments can exercise more control?
Each manufacturer covering the whole range of hardware, software, and
peripheral devices (not to mention smart objects like our cellphones and
cars) wants its intellectual property protected. What, exactly, can trans-
parency mean in this context?32
Security, privacy, and trust are issues that arise at the level of digital
technologies, just as they can occur throughout the social order. Courts in
the emerging order have to examine their own abilities to trust the tech-
nologies they deploy and consider them as part of the overall legal system
they administer. They must not imagine technology as a set of neutral
tools made available to them for purchase (or increasingly, for rent
through licensing contracts). Like the public at large, judges may think of
their computers paradoxically. On the one hand, they will relate to them
as other people,33 and on the other, they will see computers as the output
of our quantitative, scientific, and engineering capacities, and thus as ra-
tional because of their source and methods.34 What most will miss is the
cultural dimension not only of what is on their screens but also of the
technology itself. It is designed by humans, and it may have bias, which
can arise from deliberate acts or as the unanticipated consequence of oth-
er design decisions. The bias can arise from how data is chosen, stored,
32 This is not the place for a description of the malfunctions of the current intellectual
property regimes. Powerful companies producing intellectual property (e.g., movies,
music, genetically modified agricultural products), faced with the ease of transmission
of digital copies across the Internet, are looking for ways to contain their creations. In
the case of copyrighted materials, they have been moving to automate enforcement
through the use of software and hardware arrangementsmovie files that are regional-
ized and will not play out of district, or little software robots (bots) that crawl the In-
ternet looking for specific data that would indicate a copy of whatever the bot is coded to
care about. This removes due process rights and other rights that individuals have. For
a more overarching discussion, see Lawrence Lessig, The Future of Ideas: The Fate of
the Commons in a Connected World (New York: Random House, 2001).
33 See generally Byron Reeves & Clifford Nass, The Media Equation: How People Treat
Computers, Television, and New Media Like Real People and Places (Cambridge, UK:
Cambridge University Press, 1996).
34 I have been urging readers to learn more about the technologies themselves in order to
think about their consequences. For readers interested in computing, intelligence, and
morality, see e.g. Georges Ifrah, The Universal History of Computing: From the Abacus
to the Quantum Computer (New York: John Wiley & Sons, 2001); Pamela McCorduck,
Machines Who Think: A Personal Inquiry into the History and Prospects of Artificial In-
telligence (Natick, Mass: AK Peters, 2004); Jeff Hawkins & Sandra Blakeslee, On Intel-
ligence: How a New Understanding of the Brain Will Lead to the Creation of Truly Intel-
ligent Machines (New York: Henry Holt & Company, 2004); Wendell Wallach & Colin
Allen, Moral Machines: Teaching Robots Right from Wrong (Oxford: Oxford University
Press, 2009).
BOOK REVIEW 1073
combined, displayed, and deployed.35 Because efficiency depends upon col-
lapsing (simplifying) and storing information for retrieval, decisions are
made about what data to keep and what can be regarded as expendable,36
and at each step, material is lost. Our brains do this too, but there is a
large difference between the human brain and our technological systems:
our technological systems are more rigid, harder to update and change,
especially as systems become more interdependent. For example, human
inspectors can determine whether a use of copyrighted material in anoth-
er context conforms to fair use or not according to the pertinent legal
scheme, changing determinations with changing criteria. Software bots
surfing the Internet and searching for instances of copyrighted materials
can determine the presence or absence of the materials but know nothing
about the context in which they are presented.37 It is not difficult to imag-
ine competing entities automatically generating takedown requests of
content to the detriment of the medium itself and the social purposes it is
performing.
Yet access to knowledge is regarded by many legal scholars as a fun-
damental human right.38 Automatic enforcement power can deprive peo-
ple of essential information they need, whether for education, health, or
safety, because of overbroad enforcement. When governments permit this
privatization of enforcement, they remove due process rights and public
control over punishment. To make this very concrete for a judicial system,
what may happen if documents contain copyrighted material or if eviden-
tiary exhibits use a visualization that then becomes the subject of an in-
tellectual property takedown enforcement? Even if public purpose is add-
ed to fair use criteria, that would not cure the problem caused by automa-
ticity.
35 For search engine bias, see Abbe Mowshowitz & Akira Kawaguchi, Bias on the Web
(2002) 45:9 Communications of the ACM 56; Introna & Nissenbaum, supra note 4.
36 Readers likely have experienced the readable changes in their picture files as resolution
parameters are shifted or, alternatively, the degradation of a photograph as it is worked
on in .jpeg format, eventually making it impossible to return to the original state of the
file unless it was saved separately.
37 See Geeta Dayal, The Algorithmic Copyright Cops: Streaming Videos Robotic Over-
lords, Wired (6 August 6 2012), online: Wired
38 For an overview of the many strands that comprise the discussion of access as a human
right, see Galle Krikorian & Amy Kapczynski, eds, Access to Knowledge in the Age of
Intellectual Property (New York: Zone Books, 2010). Readers should pause over this au-
tomatic enforcement power deployed by corporate interests without negotiation with
government and without criteria concerning human rights as to the information being
factored in. Think of this applied to judicial opinions and other documents crucial to a
system of law.
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Eltis provides a detailed view of the specific challenges courts face
from Why Should Courts Care? to Additional Precautionary and Proac-
tive Means39. I have been adding an account of issues that will further
challenge our legal systems from the point of view of a radically shifting
culture. Computer literacy can no longer be regarded as simply knowing
how to operate hardware and software. What is needed is knowledge
about digital technology, a demystification. Judges especially must know
about the properties of the networks that enable the vast library on the
Internet and the interactivity that has made it a social space infused with
cultural power and importance.
The issues I have been outlining will all affect how the legal system
works and whether and how judges remain independent and impartial.
We are in the midst of a transformation of our cultures by digital technol-
ogy that is so great that no aspect of our common lives will remain un-
touched. I have pointed to a few of them. I hope that I have convinced you,
the reader, that the issues are large and important and that they demand
of us that we see the systems and not just the machines in our offices,
that we see the properties of networks and not just the wonderful content
that appears on our screens from the vast library of the Internet. This has
not been the focus of technologizing the law through, for instance, elec-
tronic records, audio recording of trial testimony, debates on cameras in
the courtroom, distance appearances, expert systems for lawyersall of
which seem to conceptualize the court as a discrete unit. Once social me-
dia came into the mix, different uses came to the fore. Court information
officers believe that using social media themselves will support transpar-
ent courts and an informed citizenry through outreach and transparen-
cy.40 In at least one case, information officers used social media to argue
for an issue important to the judiciary.41 Social media are seductive to use
for communicating with a large number of people, and the cost seems low.
The Conference of Court Public Information Officers lays out the land-
scape of cultural difference quite neatly:
New media are decentralized and multidirectional, while
courts are institutional and largely unidirectional.
New media are personal and intimate, while courts are
separate, even cloistered, and by definition independent.
39 Eltis, supra note 1 at 2, 117.
40 Chris Davey, Third Report Released on New Medias Impact on the Judiciary (2 Au-
gust 2012), online: Conference of Court Public Information Officers
41 Ibid.
BOOK REVIEW 1075
New media are multimedia, incorporating video and still
images, audio and text, while courts are highly textual.42
The question is not whether to use it, but how. From their perspective,
these differences need to be addressed before the courts can effectively
engage with the social media landscape. Eltis and I would probably agree
that this must be approached with great caution and awareness of the pit-
falls for the courts. The qualities of traditional institutional culture un-
derpin our notions of judgmentboth what it is to have it and to perform
itand so rather than taking a big leap, the judiciary ought not just to be
cautious but also to be proactive regarding their values.
Scholars like Carr and Turkle43 express concerns that our engagement
with, and seduction by, our digital tools is literally changing how we
think, in a revolution as profound as was learning to read and write. They
are concerned about the loss of capacity both to produce cultural work
that requires long concentration and to relate to other humans in the rich
face-to-face encounter involving all the senses. What will be the effect on
judgments if judges lose their capacity for long concentration along with
their litigants? Might judges, too, become so unused to the face-to-face en-
counter that they will prefer to make judgments on the screen? The cur-
rent generation of judges knows both sides of this because they, like us,
are caught in the middle. Rather than thinking negatively, they have a
great opportunity to think positively about what changes may be made,
about what should be preserved, and about where change may be produc-
tive.
In her first chapter, Framing the Issues, Eltis points out that the
digital technologies that can provide research tools and access to a new
kind of social life can also be used as a system of surveillance of the work
habits (time spent on various tasks, time spent browsing the Web, unfin-
ished writing) and communications (which include social media postings)
of judges at work. Does this undermine judges independence? Does this
substitute quantity for quality in judicial decision making? Would surveil-
lance of judges work produce the same effects as in medicine, where phy-
sicians cognitive work with patients is often uncompensated?44 In 1998,
sociologist Richard Sennett ruminated on the relationship between work-
place organization and character. He claimed that the new flexible capi-
talist workplace, a product of new forms of efficiency made possible
42 Ibid.
43 Nicholas Carr, The Shallows: What the Internet Is Doing to Our Brains (New York: WW
Norton, 2010). See also Sherry Turkle, Alone Together: Why We Expect More from Tech-
nology and Less from Each Other (New York: Basic Books, 2011).
44 Eltis, supra note 1 at 13-16.
1076 (2013) 58:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
through technology (and not just digital technology), could undermine
character that arises from the ethical value we place on our own desires
and on our relations to others.45 He asked, How do we decide what is of
lasting value in a society which is impatient, which focuses on the imme-
diate moment?46 The idea of a community governed by laws is fundamen-
tal to democratic orders, however much they may differ from one another.
It is the means by which people have tried to achieve justice for those liv-
ing in the community. Legal systems are thus long-term creations built
through generations. If we try to apply industrial ideas of efficiency to the
judiciary, we will be asking them to abandon deliberation, independence,
and the slow methods that give time for reason to trump emotion. Are we
prepared to abandon, too, the idea that judges have good character? Al-
ternatively, what are the values that will be brought to court by future
judges who are digital natives? How might the current judiciary play a
role in the creation of new legal culture?
And what about litigants who come before the court under these new
cultural conditions? Just as Eltis was primarily focused on the judiciary in
her book, so have I been in this review. Yet a current legal story is a fine
example of the cultural clash arising from a confrontation between old
and new norms, a court system with old habits and a litigant with new
ones, and the problem of the instability of electronic text.
A Kentucky teenager went to a party in August 2011. She drank too
much and lost consciousness. When she woke up she felt like something
wasn’t right;47 her clothing was in disarray. Later, she found out that
photographs of her private parts were being shown to classmates by two
male students; while the pictures were not posted online, they were
shown to many students. The young womans response was to report the
boys to the police, and as a complainant, her name was made public. The
police did investigate, the boys were charged with sexual assault and vo-
yeurism, and a prosecutor negotiated a plea deal with the young men. Be-
cause they were minors, the names of the boys were withheld and the
court records sealed, as is customary with matters before juvenile court.
When she heard of the plea agreement, the young woman felt that she
was being re-victimized by being exposed to public scrutiny, that her
45 Richard Sennett, The Corrosion of Character: The Personal Consequences of Work in the
New Capitalism (New York: WW Norton, 1998) at 10.
46 Ibid.
47 David Lohr, Savannah Dietrich, 17-Year-Old Sexual Assault Victim, Ruined Attacker’s
Life, Lawyer Says (21 August 2012), online: The Huffington Post
BOOK REVIEW 1077
abusers were getting off with their reputations intact, and that the sen-
tence was a slap on the hand.48
Her subsequent actions were clearly unanticipated by the legal system
but not a surprise if one is attuned to the emerging online culture. First,
she sent out a series of tweets on Twitter, including at least one that
named the boys. David Meija, the attorney for one of the boys, demanded
that the young woman be charged with contempt of court. She responded
by starting a petition on Change.org that garnered fifty thousand signa-
tures in a very short time.49 This may have contributed to Judge Angela
McCormick Bisigs decision to remove the curtain around the records,
making all materials public.50 The public would know that the boys had
confessed to manually penetrating the young womans vagina and taking
pictures that they shared with fellow students, and that they had done
this because they thought it would be funny.51 The boys pleaded guilty
on June 26, 2012, and their sentencing, delayed by law, was made public
on September 15, 2012. There is nothing new about public fascination
with sexual behaviour, and at the time this case came to light, the United
States was in a presidential campaign season filled with rhetoric about
the proper role of women. This may have boosted the publicity surround-
ing the events, but what was new in this case was how the victim used so-
cial media to publicize what she regarded as an unjust outcome of a very
bad situation, and then, again, used different Internet-based social media
to garner public support so that her complaints could not be ignored. The
young woman expected that she could and should communicate with her
followers on Twitter, since she was in the middle of an important life
event; she had access to powerful tools to do just that. She did not need a
reporter on her side or a friend in a high place. She believed in the court
48 See Juju Chang & Ely Brown, Ky Teen Sexually Assaulted, Then Threatened With
Jail Time (20 August 2012), online: ABC News
49 Ibid.
50 Readers interested in the legal wrangling around the victims concerns can find video
coverage at Judge Angela McCormick Bisig Rules on Savannah Dietrich Case (28 Au-
gust 2012), online: courier-journal.com
copy of the ruling was posted the next day at David Lohr, Savannah Dietrich Case:
Judge Rules Court Records Should Be Opened, Defense Appeals (29 August 2012),
online: Huffington Post,
51 Jason Riley & Andrew Wolfson, Louisville Boys Sexually Assaulted Savannah Dietrich
Cause We Thought It Would Be Funny, Courier-Journal (20 August 2012), online:
Courier Journal
cle).
1078 (2013) 58:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
system, and by generating publicity for her concerns, she made herself
heard by it.
If we take her perception of what to do to fix her own situation as a lit-
igant and project it forward, it is not hard to imagine a scenario in which
it becomes customary for people to appeal to crowds before appealing to
the courts. What if the courts do not respond to every appeal? Will they
then lose their authority and independence because the public is disap-
pointed? While many may feel sympathetic to this young womans situa-
tion and even to the means she chose to solve it, history is littered with
poor outcomes when justice is outsourced to crowds. North Americans
have only to think of lynching in the United States to see the difficulty.52
This case gives us a glimpse of a different kind of litigant coming to court,
of different jurors. People on juries have already violated norms around
secrecy and privacy during trial.53
Discussion about the potential instability of judicial opinions due to
Internet instability and practices can be echoed in the problems readers
might find in researching the facts of stories and cases when materials
are no longer available. I encountered a warning that a page was no long-
er available: a crucial piece of evidence in the public record had been tak-
en down. The newspaper of record for this case, the Courier-Journal of
Louisville, Kentucky, puts its archives behind a paywall (access-limiting
software that requires payment to be opened) after thirty days, so tracing
the story subsequently will become more difficult. The public has relied on
the press to tell them the stories of trials; this is an important way that
the courts become theirs, at least in the imagination. So judges and their
litigants may face related problems of the instability of text.54
Even a casual reading of history demonstrates that people long for jus-
tice no matter what their culture. But for most who observe rather than
participate, the courts are not about the grand themes of jurisprudence
that the legal academy debates, but about the unfolding drama of human
conflicts and their resolution (not to mention all kinds of strange facts).
Cultures symbolize justice in their public places. This longing and its ico-
nography is explored by Resnik and Curtiss55 Representing Justice. What
52 James Allen et al, Without Sanctuary: Lynching Photography in America (Santa Fe:
Twin Palms, 2000) (making clear just how crowd-sourced lynching behavior could be).
53 Eltis discusses the latter phenomenon in chapter 7, Social Networking and Cyber Re-
search Undermining the Jury System: supra note 1 at 108-18.
54 By text, I mean all the different kinds of materials that may become part of the record
and public discussion of the issues at trial that may illuminate it later.
55 Judith Resnik & Dennis Curtis, Representing Justice: Invention, Controversy, and
Rights in City-States and Democratic Courtrooms (New Haven: Yale University Press,
2011).
BOOK REVIEW 1079
I found so moving in Karen Eltiss book was her obvious love and concern
for the culture of law itself as an organizing institution of our common
lives. She asks how the courts can adapt to a challenging new environ-
ment, maintaining both their independence and their connections to the
lives of the people who appear before them. The challenges are, frankly,
formidable. I think she is absolutely right, though, to challenge the courts
to engage, to be more proactive. Our problem now is that technological
change is occurring at a rate faster than the culture around it can assimi-
late or moderate. I hope that readers of Karen Eltis will respond to her
call to become involved. For a democratic social order to survive, we must
not think of justice as a profit centre; we need to have a truly public
sphere where we can nurture dreams of the public good.56 If any group
has a special stake in that, it should be the judiciary. It is my hope that
the judiciary, acting out of self-interest, will help us all to think through
what must be preserved and what we can let go of in the revolution we
are living through.
56 I am indebted to Anthony T Kronman (Rhetoric (1999) 67:3 U Cin L Rev 677) for his
thinking that lawyers create the public space through their rhetoric.
