Courts, Litigants and the Digital Age: Law, Ethics and Practice.

• Author: Spiesel, Christina
• Position: Book review

Karen Eltis, Courts, Litigants and the Digital Age: Law, Ethics and Practice (Toronto: Irwin Law, 2012), pp 135. ISBN 978-1-55221-233-2.

The digital age, the time of enormous cultural change we are living in right now, is relentlessly affecting all of our institutions, forms of communication, and social habits. The title of Karen Ethic's book, Courts, Litigants and the Digital Age: Law, Ethics and Practice, (1) signals that she is addressing current issues in our justice system arising from this technological shift. It was a pleasure to read such a thoughtful, nuanced, and broadly informed book. Eltis brings to her writing considerable intellectual resources, her previous work on privacy and security, and her in-depth knowledge and training in comparative law. I round 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 digitally 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 observers in justice systems will find this book useful too, for it raises truly important questions, contains clear explanations, and makes recommendations for policy.

This book is principally about readers and writers of text, and some issues 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. Eltis's analysis does not particularly probe the role of the massive influx of pictures into legal discourses, and she does not take on multimedia. (3) Because this book is a call to engage, I will take the reviewer's 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-later--why I was moved. But first, I will give readers of this review an all-too-brief summary of the scope of Eltis's book.

Courts, litigants, the digital age, law, ethics, practice--these are global terms, and while her work touches upon all of them, Eltis has wisely narrowed her discussion to what can be effectively covered in a short book clearly intended for those who have--or should have--a professional interest in the issues it raises and little time to wade through a large monograph. The language is accessible, and nonlegal readers may well find it very interesting to read about the Internet's impact on courts and judges, juries, (by implication) lawyers, and court administration, even if the author's targeted readership is inside those institutions. What, in her view, has the digital age in particular conferred on courts?

Eltis's answer involves a knot of interrelated issues pertaining to privacy, security, and publicity, as digitized legal text becomes widely available 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 social 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 available to all participants in legal action, including judges. The unfiltered (by the courts) results of searches will be available to anyone who looks for 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 creeping into the record and of errors in interpretation arising because of textual 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 paradoxically, it never forgets--as unfortunate victims of identity theft discover when they try to repair their credit. Once posted, information cannot be recalled, 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 wishing to retrace the development of a judge's 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 Eltis's wise suggestion to maintain hard copies of electronic materials they have either used for background or cited in documents, those reading the judge's opinion may not have access to these materials. This "lack of authoritativeness and durability effectively cripples the Internet's ability to tell courts anything 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 spelling have very different practices than we are accustomed to in written and spoken legal discourses. Site members can view one another's profiles, 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 appropriate 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 inappropriately; 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 proceedings take place in special rooms with ritual behaviours, all of which contribute to setting the court in a special and regulated space. Probably only participants in the legal system were truly aware of the elaborate balances between public disclosure and transparency, on the one hand, and privacy and the protection it can provide, on the other, that informed both formal and informal court practices in the past. So, for instance, trial documents are public in the analogue world, but as it takes considerable energy 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 information 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 caution about its uses: judges and lawyers need advance thinking and not just reactive thinking. Eltis's suggestions are specific: Preserve hard copies 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 habits are consonant with traditional judicial values of impartiality, fairness, diligence, and dignity, (7) even if they have a new flavour--such as the recommendation 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 digital age? If they simply refuse to engage, they will hot be sharing a culture with the litigants who appear before them, hot 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 private lives exposed, and having their dignity and trustworthiness questioned. Formerly, public figures could carefully control the social...