Judicial Independence and the ‘Cyber Pandemic’: A Call to Scrutinize Judicial Reliance on Private Platforms as ‘Essential Infrastructure’

Judicial Independence and the ‘Cyber Pandemic’: A Call to Scrutinize Judicial Reliance on Private Platforms as ‘Essential Infrastructure’ [1]

Digital technologies—and their corollary misuse (or weaponization[2])—are briskly transforming communication and altering “how law is disseminated throughout and used”[3]. More specifically, the eco-system in which courts themselves operate has shifted—a transition sharpened abruptly by the pandemic, as justice precipitously migrated to private platforms.[4] Indeed, the COVID-19 pandemic dramatically hastened and spurred judicial digitization “on a scale and at a pace that our court system would never have contemplated”[5] visibly culminating in conducting  proceedings on Zoom, Teams and the like.[6] This de facto marriage of convenience may in a word best be characterized as an unstructured partnership prematurely born out of necessity.

On the heels of the ominous Facebook outage, a ‘new normal’ defined by a general dependance on “a few dominant internet intermediaries act[ing] as gatekeepers in the curation, distribution and monetization of information”[7] is ripe for rigorous scrutiny. A great deal is at stake when platforms “[o]ffering services ‘for free’…profit from profiling and commercializing the public sphere”[8] more generally. This is exponentially true, few would query, in the judicial context.

Mindful of this gargantuan communications reallocation, the following posits that judicial independence must now be understood in the context of global platform-dependent modern communications. What previously struck most as incredulous let alone unfeasible is now commonplace in justice systems across jurisdictions. Whereas innovation tailored to palliate the disquieting backlog that has haunted courts for years is best greeted with openness (recognizing the necessity of digitizing in light of significant constraints both budgetary and logistical) we must not lose sight of the perils to judicial independence inherent to unbridled dependence on foreign commercial platforms. While these concerns are largely obscured by both the urgency and convenience of hastily transitioning online during the persisting pandemic, the long-term impact of this partnership is ripe for sober scrutiny. Underscoring the risk of compromising the foundational principle of judicial independence in the age of default platform infrastructure, the following calls for developing mechanisms tailored to ensure that intermediary partnerships are mindfully structured (‘balisé’), rather than dangerously and anachronistically left to ad hoc use.

Modified Drittwirkung

It stands to reason that reliance and—a fortiori—over-reliance on private platforms threatens to supplant laws and institutions with intermediaries and the opaque algorithms opaquely crafted for profit. Accordingly, and as a rough starting point to ultimately engendering reflection, we submit the German concept of Drittwirkung[9] as helpful in the quest to frame these alliances or deployment as intermediaries as public utilities in the interim.

As has been submitted elsewhere, and in order to respect constitutional values in the digital age more generally, human rights may be upheld not only against the state but “against any group in society that is sufficiently powerful to functionally substitute for the state.”[10] In other words, there may be an affirmative constitutional responsibility to interpret law in a way that protects citizens – and judicial independence- against the actions of private groups who exercise what Lapidoth, in a different context called “functional sovereignty.”[11]

Specifically, the three components of judicial independence are, of course, security of tenure, financial security and administrative autonomy. Of these, administrative independence, and its perception, appears most affected under the circumstances. Increased reliance on platforms imperils the foundation of these principles by potentially introducing the apprehension of external pressures or the perception thereof.

In light of the above, it behooves us to inquire into the place of courts within this architecture of “planetary-scale computation…[that] distorts and reforms modern jurisdiction and political geography and produces new forms of these in its own image”?[12]  For this expedient yet spontaneous and amorphous de facto marriage between courts and intermediaries, is part and parcel of a broader far-reaching phenomenon. A reality in which, as noted elsewhere, “constitutional rights that democratic nations have toiled to enshrine and interpret are relegated to the largely side-lined brick and mortar world and can be effectively bypassed in the online realm.”[13] A space that defies territory to which most contemporaneous legal concepts clench, one where courts too are constrained to rapidly migrate.

While the difficulties of transposing and enforcing domestic and international human rights norms to the borderless digital realm are by no means limited to online courts, the pandemic and its desperate scramble have rendered judicial reliance on platforms as infrastructure seemingly all the more conspicuous. 

If nothing else, policymakers and courts must urgently grapple with the paradoxical tension of the “generative and democratizing force of digital platforms and the monopolistic and controlling force of digital infrastructures”[14].

 

[1] See Tarleton Gillespie, Custodians of the Internet: Platforms, Content Moderation, and the Hidden Decisions that Shape Social Media (New Haven: Yale University Press, 2018).

[2] CybeRighTech, “Prof Irwin Cotler ­– A Must-Watch Speech on Technology, Regulation and Human Rights” (1 November 2020) at 00h:01m:57s, online (video): YouTube <www.youtube.com/watch?v=PnMc1CJdqR4>.

[3] Neal Feigenson & Christina Spiesel, Law on Display: The Digital Transformation of Legal Persuasion and Judgment (New York: New York University Press, 2009).

[4] A term broadly and generically used here.

[5] The Every Lawyer, “Digitalizing Our Courts” (24 June 2020) at 00h00m30s, online (podcast): Canadian Bar Association <www.cba.org/Publications-Resources/Podcasts/All>.

[6] See ibid; “Covid-19 Forces Courts to Hold Proceedings Online” (14 June 2020), online: Economist <www.economist.com/international/2020/06/14/covid-19-forces-courts-to-hol....

[7] Julia Haas, Office of the OSCE, “Freedom of the Media and Artificial Intelligence” (16 November 2020) at 1, online (pdf): Government of Canada <www.international.gc.ca/campaign-campagne/assets/pdfs/media_freedom-libe....

[8] Ibid at 2.

[9] A German legal doctrine meaning “third party effect” and used to transpose fundamental rights onto private law relations, see Eric Engle, “Third Party Effect of Fundamental Rights (Drittwirkung)” (2009) 5:2 Hanse L Rev 165.

[10] See e.g., CA 6024/97 Shavit v Rishon Lezion Jewish Burial Society, [1999] IsrSC 53(3) 600, [1998-9] IsrLR 259 (Israel) (for an ostensibly private body providing public functions and therefore subject to the constitutional normative framework such as protecting human dignity).

[11] Ruth Lapidoth, “Sovereignty in Transition” (1992) 45:2 J Intl Affairs 325 at 333. See also Karen Eltis & Ilia Siatitsa, “Realigning the Law to Better Uphold the State’s Duty to Protect Human Rights: Towards an Interoperable Model for Addressing Racism and Strengthening Democratic Legitimacy” in Yuval Shany, ed, Reducing Online Hate Speech: Recommendations for Social Media Companies and Internet Intermediaries (Jerusalem: The Israel Democracy Institute, 2020) 187.

[12] Benjamin H Bratton, The Stack: On Software and Sovereignty (Cambridge: MIT Press, 2015) at 6.

[13] Id

[14] Constantinides, Henfridsson & Parker, supra note 45 at 9.