Book Reviews: Tech-Sceptics on Legal-Tech

A review of sceptical books about tech, through the lens of legal-tech

In “To Save Everything, Click Here”, Evgeny Morozov takes aim at “Internet Centrism” and “Solutionism”, two ideas which had infatuated our tech-loving culture in the last few decades. He is a brash, sceptical rabble-rouser, and makes for an entertaining and eye opening read. Although his critiques target the digital cheerleaders across the wider economy over the preceding decade, his thought processes are just as applicable to our little slice in the legal tech world. Morozov reminds us that in the final analysis, “it is the flourishing of humans, not of the internet” that should preoccupy us. In legal tech, we would do well to remember that justice should be our end goal – not digital; not tech; not ‘openness’. They will often align with justice, but are only a means to that end. Any voice that reminds us to focus on that end is to be encouraged, and on that alone I recommend “To Save Everything, Click Here.”

“The Shock of the Old” is David Edgerton’s reminder that old technology is often of more value in the modern economy than the new, flashy technologies which purport to have replaced it. Parallels can be drawn with legal technologies being used today. Unfortunately it’s not particularly engaging or cohesive, and I wouldn’t put it at the top of the reading list.

 

“To Save Everything, Click Here” (2013) – Evgeny Morozov

ToSaveEverything

Internet centrism is our infatuation with a set of technologies, applications and companies that are often lumped together under the “false universalism” of “the Internet”.

Solutionism is the mindset wherein every problem is capable of a technical solution. Morozov is critical of those that try to ‘solve’ everything from the “problem” of democracy, to civic participation, to recycling and obesity, but without asking if those problems are even capable of a solution, if some of the perceived inefficiencies are not bugs but features, or if ethical boundaries might be crossed in do so.

Morozov can be scathing at times, with pointed critiques of other commentators – I would not want to be in his firing line. But there is also humour – “It’s as if the solutionists have never lived a life of their own but learned everything they know from books – and those books weren’t novels but manuals for refrigerators, vacuum cleaners and washing machines.”

It is difficult to write about technological trends without your source material becoming quickly dated. This is unfortunately no exception. Published in 2013, references to the Pirate Party, Mega-Upload, SOPA and the Obama administration’s digital efforts place it squarely in the early 2010s. But, conversely, reading the text post-2016 it is curious and striking how many of his warnings seem to have materialised, or at the very least are now considered mainstream public concerns. The 2016 political upsets, Facebook and Cambridge Analytica, GDPR and the monopoly power of Google and Amazon have all been thrust firmly into the public spotlight in recent years.

Morozov’s critique of the internet as a single “thing” is a useful reminder that all of these associated problems that we are encountering in recent years are not homogenous. Each new piece of technology has its own applications, effects, cheerleaders and shareholders. One size does not fit all. Similarly, solutions to the cultural and political problems posed by new tech will also be a mixed bag of policy remedies. Sometimes strict legislative interventions will be appropriate, self-regulation at others. For other issues involving our political life and civic participation, political rhetoric and public education campaigns may be required. For the global monopolies, it might be suitable to go break them up or restrict further mergers. Often, it will involve leaving much of this to the free market to sort itself out. Either way, it will depend on context and the specific issues in question. The “internet” is not homogenous, and the solutions we adopt to deal with its fall out shouldn’t be either.

What does all this have to do with legal tech?

Numerous parallels sprung forth during the read, such as the push for online courts to solve all A2J problems. But I’ll focus on just one here – the push for open court records and judgements. This is not something I see as a problem and I am not critical of the hard working advocates in the space. Rather, what follows is an example of the questioning mindset that Morozov encourages the reader to adopt when advocating digital solutions.

Much as in the wider tech community, there appears in the legaltech sector a devotion to all things “open”. This includes open access to all court records, sentencing data and judgements across the jurisdictional spectrum. “Light is the best disinfectant” – a catchy summary of the proposition. Open courts records can encourage scrutiny and accountability and reduce corruption. Open sentencing data allows trends in racial and socioeconomic discrimination to be unveiled. As a matter of basic fairness, court judgements containing potentially binding law ought to be available in advance to those who could be bound by them.

Given all this – who could be against all that openness and transparency? Well, Morzov could be.

Morozov, in the sardonically titled chapter “So Open It Hurts”, notes academic commentary on the perceived virtue of transparency:

“… a useful distinction between transparency as an intrinsic value, as an end in itself, and transparency as an instrumental value, as merely a means to some more important goal, like accountability… “The ‘right’ varieties of transparency are valued because they are believed to contribute for example to effective, accountable and legitimate government and to promoting fairness in society.” This means there are also be wrong varieties of transparency, which might lead to populism, thwart deliberation, and increase discrimination.”

In law, we care in the final analysis about justice. In the examples I list above, transparency and justice seem to be aligned. A judge’s decision which is subject to public and peer scrutiny is likely to reduce the risk of flippant, corrupt, discriminatory or plainly wrong judgements. Justice also involves knowing the law you are subject to in advance.

But what Morozov asks the reader to do is to take one step back and query the next level. Here are some questions we might ask about whether full transparency promotes justice as the end goal:

1. Is there a cost to the public purse of facilitating a high level of public transparency, such as transcription, editing, tech support or hosting costs? Might justice be better facilitated by fixing the leaking roofs, or putting a little back into the legal aid budget?

2. Might individuals or small businesses, either as parties or witnesses, be less willing to engage with the court system if their personal information or testimony is, by default, published and immediately available to anyone on the planet through a quick google search – is that disengagement good for justice?

3. Would knowing that their judgements are automatically subject to public scrutiny, natural language processing or statistical analysis cause judges to spend significantly longer time crafting and delivering their judgements? Might this increase the delay in receiving judgement for the parties involved and reduce the ultimate capacity of the judicial system?

4. Will publicity cause judges to be reticent to highlight certain parts of their reasoning which the parties may care about, but are now wary to put into the public realm, such as concerns about privacy or sensitive personal issues?

Questions of this nature are not novel. Many of the balancing acts form the basis of public policy questions in legislation and court rules which restricts public access to records on the basis of national security, witness protection or personal safety. Budgeting trade-offs are also made by civil administrators regularly. There are also some thoughtful commentators in the open court space who draw articulated boundaries around what ought to be a public, open record (such as Hoadley, for example). The push for user-centered design in law, with its focus on user satisfaction, solution-agnosticism and iterative development also facilitates open minded thinking and questioning along these lines.

Morozov reminds us that in the final analysis, “it is the flourishing of humans, not of the internet” that should preoccupy us. In legal tech, we would do well to remember that justice should be our end goal – not digital; not tech; not ‘openness’. These will often align with justice, but are only a means to that end. Any voice that reminds us to focus on that end is to be encouraged, and on that alone I recommend “To Save Everything, Click Here.”

“The Shock of the Old” (2006) – David Edgerton

ShockOfOld

The sub-heading of Edgerton’s book is ‘Technology and Global History since 1900’. Trying to redefine the global history of technology is an ambitious task for any writer and too grand a task in a paperback of just over 200 pages. Unfortunately and perhaps unsurprisingly given its vision, the text falls short. Rather than being swept away by a grand narrative, it reads like a series of Wikipedia articles stitched together. Although rich in illuminating statistics, it was difficult to find the thread tying them all together.

Nonetheless, Edgerton’s book is a reminder of the less visible sides of technology, many which have parallels in the legal tech sector.

Amongst these is a focus on the use of technology as the key measure of its worth, rather than on its invention or ‘newness’. He notes that many old technologies are in wide spread use, often in substantially great numbers than the new technology that common wisdom suggests replaced them. In law, think of word processing and spreadsheets, post-it notes, printing services, even telephone and email. Right now, in 2019, how many people in the legal industry use word processing, compared to how many use natural language processing tools, legal analytics or even document automation tools? A fraction of the former use the latter, I would imagine. Through Edgerton’s lens, the current ‘use’ of technology puts word processing miles ahead of any ‘new’ technology in the industry. As new parts of the global legal market grows, it is likely that word processing tools will be deployed in every law firm. Looked at through that lens, word processing might be the fastest growing tech in law in 2019. Whether that’s of particular interest to BigLaw or the LegalTech sector is unlikely, as these are mature industries, there are free word processing tools available and the options for unicorn start-ups to break in seem minimal. But that doesn’t detract from Edgerton’s point – that looking at technological developments in terms of use (rather than invention, or what is ‘new’), leads to entirely new conclusions about the true value of a technology.

Edgerton also notes the importance of maintenance in the technological sphere – how the handyman/woman is just as important as the delivery of the new technology, and certainly much larger in number and day to day importance in the use of the technology. It is also a reminder of the importance of those people in our businesses, who are often overshadowed by ‘inventors’, scientists and engineers. Think akin to the tech support, the project managers, PAs and paralegals, or even the odd tech skills / quick fix or googled work-around that a lawyer might deploy to get an urgent document out the door – there are far more maintenance folk than we might realise – just as important as the start-up founder and angel investors.

Edgerton’s work has a number of useful reminders about the value of ‘old’ technology in the modern world. Parallels can be drawn with legal technologies being used today. But unfortunately it is not particularly engaging or cohesive, and on that basis I wouldn’t put it at the top of the reading list.

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