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Digitising the courts: tech-savvy lawyers and others weigh in on the fishhooks

17 Nov 2022

| Author: Reweti Kohere

As the government throws hundreds of millions of dollars at the first phase of a decade-long effort to digitise New Zealand’s courts and tribunals, tech-savvy practitioners are warning of potential fishhooks that could jeopardise its chances of success. The snags include security risks, the loss of control of the system and threats to harm the judiciary’s integrity, missed opportunities to reform the way court staff work and the possibility of the rule of law becoming “the rule of artificial intelligence”. While those LawNews spoke to agree that digitisation is sorely needed, there are also fears the current tender process is jumping the gun, by-passing necessary, clarifying discussions among stakeholders.

Nearly $200 million has been earmarked to fund Te Au Reka, a new case management system designed to reduce unnecessary delays and improve access to information through digitising the judiciary’s largely paper-based workflow. The funding comprises $39 million in operating spend and $133 million in capital expenditure, which reflect the “impact on spending” allowances contained in the government’s 2022 Budget rather than the initiative’s overall expected costs.

Previously kept under wraps, the figures have now been released through the government’s electronic tenders service, ensuring all vendors interested in the current Te Au Reka tender have access to the same information, says Ministry of Justice deputy secretary Victoria McLaughlin. “Therefore, these specific figures are no longer commercially sensitive. But it should be noted that they do not represent the expected costs of Te Au Reka. The expected costs remain commercially sensitive.”

Even if the government had put aside more funding, the plethora of technology means digitisation can be done at a reasonable cost, says Lloyd Gallagher, managing partner of legal consulting and dispute resolution firm Gallagher & Co. But his concerns run much deeper than that: “Where the technology is going to be located, how the information is going to be maintained, whether there’s a potential for intrusion, simplicity and the use of it, the difficulties for people who don’t have access to computer systems, how would they still engage in it. These are really where the additional tensions arise.”

Slippery slope

Gallagher, the convenor of ADLS’ technology and law committee, warns that building a domestic case management system comes with pitfalls, including the possibility of intrusion and interception by government and non-government actors, questions about data ownership and control when dealing with foreign third-party vendors, and “bad code”. In his view, oversight should rest with the courts and the government. Much of the world in early 2020 turned to videoconferencing platforms, such as Zoom and Microsoft Teams, to stay connected and continue working from their homes in the wake of covid-19 lockdowns.

But almost immediately, unidentified individuals started hijacking meetings. In March 2020, the FBI received multiple reports of high school videoconferences being disrupted by pornographic and/or hate images and threatening language. At around the same time, Zoom faced scrutiny for not enabling end-to-end encryption (E2EE), generally considered the most private form of internet communication, despite marketing a different kind of encryption it offered as E2EE. By October 2020, Zoom properly delivered on its security promises.

Gallagher recounts a recent experience where he and a private group of users of Teams were inadvertently grouped into a pornography website. As recent as May 2022, participants in an annual computer hacking competition succeeded in hacking Microsoft’s Windows 11 operating system and Teams.

The ramifications for the judiciary would be dire if it were caught up in a similar incident, he warns. “If we’ve got the judiciary being pulled into that sort of thing, are we creating a sort of environment where we’re going to get accusations against judges, biased accusations, inappropriate accusations? There’s a slippery slope that could go down.”

Integrity of the courts

Compounding his concerns are the various kinds of sensitive disputes that courts and tribunals must adjudicate – the political, the commercial, the legally privileged, and even matters of national security – and their potential to be made public as a result of intrusion.

Other kinds of court processes, such as testimonies or the sanctity of non-publication and suppression orders, could be threatened if Zoom and other home-based, proprietary solutions are used. With such products, Gallagher explains, there’s no way of being notified of or preventing participants in videoconferencing hearings from recording or screen-capturing the proceedings so any anonymity the courts have ordered could be undermined. By contrast, AVL products that the courts control could make it easier and quicker for judges to respond to unauthorised recordings.

How can the digital system protect those conversations, and uphold the integrity of court processes? Gallagher asks. “The government needs to consider that putting things in third parties’ hands, like Microsoft and Zoom and that sort of thing, is not necessarily the appropriate way to go.”

Tinker, tailor

LawFest organiser Andrew King applauds the judiciary’s reasons for wanting to modernise the administration of justice: court processes must be capable of delivering just outcomes for all New Zealanders. Digitisation should’ve happened a decade ago, he says, but the fact it’s happening is worth supporting. However, King’s concerns zero in on how the new digital system will be rolled out.

During the 10 years that King has run LawFest, an annual conference on legal innovation and technology, the Ministry of Justice has not attended once, he says. That throws up a raft of follow-up questions: if the judiciary and the ministry want to quickly follow earlier adopters, whom are they following? Do they have the necessary expertise at their disposal?

On launching the strategy document for consultation in September, a media statement from Chief Justice Dame Helen Winkelmann stated Justice David Goddard, tasked with leading the digitisation process, had interviewed heads of bench, Ministry of Justice officials, external stakeholders, and technology experts. Those insights, along with local and international research, had informed the preparation of the strategy.

According to the strategy document, the judiciary aims to be “fast followers” of solutions that have worked in other similar jurisdictions. Off-the-shelf products, which can be adapted and reconfigured post-purchase to meet organisations’ needs, will be preferred over the development of a system bespoke to New Zealand’s courts and tribunals.

King agrees a bespoke system is “the last thing you want” as costs could blow out. But he says the judiciary might have to tailor any off-the-shelf system it is considering. “By having those criteria, it’s pretty much saying ‘we’ll have something that does these things and then we build on these other things’. Well, that’s not an off-the-shelf product,” he says. “That’s building something and tinkering with it. It’s just contrary to that off-the-shelf, fast-followers comment.”

Wish lists and buzzwords

The judiciary wants a flexible digital system, one that “take[s] advantage of new opportunities for innovation and enhanced delivery of justice”. King says taking advantage of new opportunities sounds like a “buzzword”. “You’ve got to go out there and practically look for what the opportunities for innovation are…You don’t go into The Warehouse and buy this off the shelf. This is quite a complex thing they’re looking to achieve.”

King worries the preferred capabilities appear more like a “wish list”, a problem he observes a lot with tender processes. “You have a wish list without actually understanding what’s out there, what’s available and how other people are working,” he says. “Anyone can put together a wish list but you need to be educated and informed about what’s happening and what’s doable and what’s a pipe dream.”

Gallagher shares the same sentiment and believes a white paper would have been beneficial for all stakeholders. “We’ve seen it before where stuff has gone out for tender, companies have come in and tendered for it, they’ve got the contract because they’ve got the best price, and then all of a sudden, ‘hello, we hadn’t even considered all these other issues’,” he says. “To my mind, maybe we’re jumping a little bit quick to the tender process before we’ve got all the information that we should be considering.”

‘Rule of artificial intelligence’

The strategy document explicitly recognises the administration of justice is “first and foremost a human process”, although “appropriate use” of digital technology can support and enhance that endeavour.

Based on the judiciary’s longer-terms aspirations, by the early 2030s it could be using automated processes to interpret and translate speech, artificial intelligence tools to help identify, organise and analyse relevant information among large bundles of documents, and algorithms to help determine straightforward procedural applications.

Digitisation is ultimately just a word though, reminds law professor Mark Henaghan. “It’s only as good as the people feeding the information in. There’s still got to be a human factor,” he says. “We have to hold onto that dearly because it seems to be the rule of law would become the rule of artificial intelligence, which would be very frightening.”

Going digital has its advantages – the ability to better service New Zealand’s multi-cultural population with documents written in multiple languages, for instance, which can be updated more quickly. And more opportunities to see how justice is done, with livestreams of hearings extended beyond the Supreme Court to “appropriate” hearings in other courts and tribunals. But Henaghan warns that going digital won’t be a “panacea” for quick, efficient and cost-effective benefits. And those benefits mustn’t lose sight of their true recipients.

Costs and efficiency are often cost-efficiency for the system itself, not for those using the system,” he says. The “over-positive” strategy document reads more like a sales pitch, than any in[1]depth piece of analysis. “We know [with] justice, you have to look at many sides, there’s no simple answer to these things, that it comes with disadvantages. As long as we’re aware of them, we can still go ahead. But at least we know where the pitfalls are,” he says. “But this didn’t seem to indicate any of that at all, which I found quite surprising.”

Judge-time

Justice Goddard told LawNews that one of the project’s major risks is continued under-investment. However, after a couple of decades of insufficient funding, the government has shown a strong commitment to rectify the position. “The most widely-used technology in the courts – the case management system – is 20 years old and is no longer supported by the original vendor,” the judge said. “It’s really clunky. We need to do something that is fit-for-purpose, that is properly built and continues to be properly supported.”

Another risk was managing a process that didn’t focus enough on the end-users, meaning “it doesn’t work as well as it ought to in practice”, the judge said. “In some countries I visited, the design has been very much led by technology people and when it’s landed in the courts it hasn’t worked very well for parties, for the lawyers or for the judges.” For the first time, the judiciary has developed its own digital strategy and how it should be designed. A lot of judge-time is being invested in ensuring the blueprint and model match up with the judiciary’s understanding of the court system and its trajectory.

Conservatism versus revolution

The judiciary’s inherent conservatism is one of its strengths, Henaghan says, enabling it to adopt innovations from the mistakes and lessons of earlier users and to remain self-critical of its processes. “There are some processes to be improved and sometimes the improvement makes it worse and sometimes it makes things better,” he says. “You have to keep moving in a way that you think you’re improving things. But you have to keep also realising that, not every new improvement will improve things.” In digitising largely paper-based systems, though, is the judiciary missing a trick? asks King.

Going digital may introduce efficiencies, he says, “but are we not looking at the bigger picture here? Do we need to perhaps change the way people work? Are there not more efficient ways to do things? Are we just doing certain parts of the task because we’ve always done it?”.

The ministry’s Te Au Reka tender closes midday on December 2 and long-listed vendors will be notified before Christmas. ■

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