The Global Digital Divide: Court room technology, Issues and innovations.
Syed Kamran Razvi
ABSTRACT:
This article studies the Digital Divide in dispensing of Justice across the planet and the relationship between globalization requiring such infrastructure support. It probes the clear list of have-nots and how ‘Vowel laws’ can be the platform of equality and equal access of justice through convergence of audio-video with hypertext(chatting etc) ability, software revolution and cheap hardware. The requisite of covering the The Digital Divide, comes to fore with inability to provide access to network of various kinds which is only restricting the growth of transition economies and markets much to disadvantage to themselves and in long term at serious costs of developed world. A modern barter system approach is suggested much like lending online resources world wide with a minimum cost model to work with in a secure digital environment.
Introduction:
The issue of Digital Divide
is relevant systemically into the broad realms of e-commerce and internet based business transaction with mass consumer base globally (UNDP,2004).
The challenge of cross-border reach and multi-jurisdiction involvement are so unique to the growth of business transactions and development of e-commerce with sound legal principles. Thus the global foot prints (globalization) are bound to pose greatest challenges to the clearly marked out the ‘advantaged’ and ‘disadvantaged’ groups (societies).
Court Room technology is one area which is sub-category to Law and ICT convergence, which constitutes a major infrastructure requirement to the e-commerce growth and development. It is integral to the framework of e-commerce and modern business development just as neo legislative requirements.
Technology being capital intensive but if modelled on ‘Return on Investment’ its introduction in developing world can be facilitated with some ease or less hurdles which are traditional cliché arguments against induction of technology in non-productive services as law.
BACKGROUND:
It is this Digital-divide which a knowledge based economy or Networked society would clearly outsmart its advantages in view of “effects” and “side-effects” of Globalization.
Digital Divide is today well understood. Indeed, email is the basic introduction to divide as it may exist where internet or hypertext has made its entry be it to confines of institutional usage or individual usage. The Digital Divide is further reintroduced with the Cell phone technology which is increasingly becoming integral to ICT (Information and Communication Technology) through SMS (short message service) and ‘Push mail’ or ‘blackberry’ services or web browsing through WAP (Web Access Protocol).
The planetary reach of internet has created the neo Digital have-nots. The Digital divide is further accentuated by the social factor of generation-gap in addition to many other factors. It is more conspicuous; within emerging market economies or transition societies, that factors like location, education, age, class and even gender can create digital divide and sub-divides. It is much similar to what US (North America) and Europe divide on IT has been. The willing ness to ‘change’ or ‘extent of change’ also depends on the prevalent culture in a society. Thus, ‘activating knowledge’ is a major issue/factor for innovation and growth linkage affecting, national GDP and world GDP rates.
Knowledge economies or ‘i-societies’ (‘I’ stands for invention innovation, information) have been most benefited by convergence of various set of technologies in late 90s. The adaptation of e-governance since UNICTRAL , 1995 initiative can very easily redefine administration of laws and policy as by e-sovereign initiated acts and processes.
Ironically, the new ‘i’ or ‘e’-laws enacted by Knowledge-based economies, has only reinforced the divide institutionally in global terms.
These ‘vowel laws’ are well illustrated by an example, the Digital Millennium Act of USA. This brings in e-commerce to the jurisdiction of courts in US mainly because of very impressive contribution of IT capital to the growth of the US economy since 1995. Also as most hosting servers today are located in US, only one in Japan and other in Europe under ICANN regime.
Here in this paper examination and impact assessment of this change wherein the way Courts deliver Justice with ICT inputs in somewhat expensive way, is deliberated upon.
Court room technology:
This is an e-governance-induced Business Process Change (BPC) includes two critical elements of Electronic Records Management (ERM) and Document Life-cycle Management systems (DLM) with very typical applications like Electronic Evidence presentation System. Indeed DBMS (Data Base Management Systems) is only a software program that permits an organization to centralize data, manage them efficiently, and provide access to the stored Data by application programs.
In US it has been uniform adaptation whether it is Indian (Tribal) Court or State Trial, Court of Appeals and Supreme Court. Federal Courts have been uniform in technology and standardization occurred, as developed by US Judicial Administration Institute in Washington DC. The adaptation of technology in US or North America has been most progressive more so, as it has interactive application value and not just catalogue or transaction value alone.
Thus the bench marking and issues in technology as it progressed over the years has been well summed up in Article by Prof. Fredric I. Lederer :
“Further, an increasing number of courtrooms include the capability for remote, two-way testimony via video-conferencing. Indeed as of April, 1998,……. Even appellate courts are using videoconferencing. The United States Courts of Appeals for the Second, Tenth, and District of Columbia Circuits use videoconferencing for oral arguments,”
Most of the services offered (unlike Attorney’s fees in North America) are very reasonably and suitably prized .
Indeed the courts in Colorado, US initially started ECF with a private body who was charging about 5 USD per document filing, the courts shared the revenue and realised that if the same is done by in-house facilitators it can be brought down to a Dollar(US). However, the critique to this approach would be even if in tune to cheap and free public service; which may not necessarily be conducive to innovation.
In the instant case of public services ; ‘E government has evolved as a means of contributing to value in all three areas-outcomes, services and trust- and this provides a useful rubric for understanding its evolution, assessing its current and future performance, and avoiding the pitfalls of technological determinism and hype’.
Interactive Leaning for Lawyers, Judges, litigants and administrators of Justice:
Court room technology has been adopted most progressively in US courts both Federal and State, however across the Pacific borders over the period of time, it has been easier for Legal system in Australia to adopt much faster the innovative levels in court room technology like Level one Technology, Court 21 technology and Court 23 Technology, more recently E-courts.
It is the ‘Vowel Law’ Ecourts that is the most advanced form of technology adaptation of for running a legal and judicial system.
The fundamentals which e-court uses are much similar to any interactive portal which originated after first e-payments were introduced in Banking and financial industry.
The issue in transition of adaptation by all players took some initiatives by the pragmatic Judges and Lawyers in US Federal Courts to change the settings of old court houses from just a short hand transcribing machine and easel being replaced by software which could integrate both audio and video with transcription of documents, orders etc. With the advent of touch screen and plasma screens have since then replaced the big green and of late the colour monitors.
Resource allocation has been the major issue in adaptation of technology in US, as the budgets would be more and more, scarce for such changes which are otherwise considered as part of non-productive expenses.
For Counties and State courts, it would be then dependent on much Non-Tax dollars which can be generated to develop the changed infrastructure settings. Indeed in those states situate in Mid-West and Mountains these changes in court room technology settings are equally slow in making.
Resources Allocation: willingness to transparency
US experience
The introduction of court room technology was used for video presentation of evidence and also the exhibits and discoveries in the Trial. It made the system more transparent and accountable.
An interesting situation arose while awarding the costs in litigation titled “Science Applications International Corporation V. Superior Court of San Diego County46 Cal.Rptr.2d 332,337 (Ct.Appl.1995):
The court went on to criticize the use of technology in this case, pointing out that the prevailing party was awarded damages of $1 million but had litigation costs of $2million, and concluding that: "[i]f a party litigant chooses unwisely to expend monies in trial presentation in excess of the value of the case, utilizing advanced methods of information storage, retrieval, and display, when more conventional if less impressive methods are available, the party must stand his own costs."
Cellular or mobile phones is one example which has led the communications revolutions in countries like India (1000 % annual growth), China (700% annual growth) etc. Unlike the dilemma in renewable or Clean technologies, Communications and IT has been able to jump straight from the West to the Developing countries, not to discount the factors contributing to their ‘leap frog’ their way.
Two significant instances in US are cited above for the resources crunch in ICT application, where in State of Kentucky, Supreme Court Chief Justice, in 2004 decided to allocate resources directly like Governor from the treasury when the Senators refused to appropriate money bill for Judiciary as part of cutting on the expenditure and spending on “essential” services only.
In 2008, the Judges of Supreme Court of State of New York, during the economic crisis, lamented and threatened to shut the courts if resources allocation and budgeting was not met in time.
Post September 2001, there was need for greater coordination amongst the different official agencies and courts alike. Although ICT inputs for Federal Courts was more urgent than the State Courts.
The Attorney General offices and other prosecutorial agencies, investigative agencies invested heavily in technology. The Courts are under the increasing technology-barrage. It was increasingly complex evidence presentation through e-means like emails, computer files, etc and remote presentation and depositions.
More and More Attorney’s are getting tech-savvy , much on account of the resources like Lexis-Nexis and West law, etc getting web-based and easy to access online from anywhere in the world through subscription base secure log ins.
Bankruptcy Courts here in US are completely dependent on the software which the attorneys use and rely on for detailed filings and calculation of the incomes and loss of incomes.
Even universities have since 2000 increased the stress on e-tools for students also translates that Law students’ curriculum become inclusive of the same. Some law schools like in Berkeley, California adapt Law and Technology to study completely new dimension of law i.e. regulation of new ICT and other applications like Patents etc. It has adapted new approach where in students run a web based discussion forum.
AUSTRALIA and INDIA:
But for these two countries being common law countries comparison on application of ICT sophistication in courts stops there. However, when studying globalization, it can be said that court using technology in one place can affect or/and influence the far off place.
This is what the Judge in Australian court did when he passed a direction for serving summons on FACEBOOK when the mortgage company failed to recover the money. It was replicated by the New Zealand court High Court in addition to use of email for serving summons.
While Australia Federal Ecourt uses efiling, serving of summons (through email, fax), filing of evidence, lists transcripts and cause lists. It facilitates the ‘do it yourself’ approach in the user-friendly manner. Its Easy steps guide is incredibly comprehensive and self-explanatory for a lay user.
Australia largely gained from proximity to US IT market and a booming economy for past one decade.
INDIA:
In India IT (Information Technology Act was passed in year 1999 and in 2000 Civil Procedure Code made amendments on serving of process through electronic means and admissibility of evidence through video conferencing and presentation of evidence in digital form. In addition it was amended to use any evidence in electronic form like emails, proving of ECS (electronic Clearing System) etc.
However the present state of technology in Indian courts (mainly constitutional) would be ‘Level One technology ’: The hierarchy and main website for all the courts and tribunals in India is in Figure 1. Some more prominent and older websites ones are listed in the figure.
SUPREME COURT OF INDIA (www.indiancourts.nic.in)
Sit in Division Benches( at least two Judges)
HIGH COURTS OF STATES
(Appellate, Extraordinary, Ordinary original, Company Jurisdiction exercisable in the territorial limits of the State.)
1.Some times two or more States has common High Court or Benches in various parts of a State.
www.causelists.nic.in (one common website listing all High Courts) TRIBUNALS
Designated courts, Regulatory authorities/Commissions, etc.
www.cbec.gov.in
www.incometaxindia.gov.in
www.cci.gov.in
Criminal Courts
Session Judge Court (Offences punishable by more than three years barring exception), Designated Courts.
Below are Magisterial Courts
www.delhidistrictcourts.nic.in
Civil Courts
District Judges Court
(Appellate and original Trial of Suits pecuniary jurisdiction, Family Courts, etc)
Civil Judge Court/Small Causes Court
www.delhidistrictcourts.nic.in
Figure 1: Heirarchy of Indian courts with ICT status and websites
Government of India approved the e-courts project in February 2007, National Informatics Centre (NIC), which is the implementing agency for this project, has reported that laptops to 12155 judges across the country have been provided and around 13000 laser printers are getting delivered for those laptops. Three months’ training on the usage of computers has already begun and 1210 faculty members are training so far 8700 judicial officers and around 32000 court staff. This training is going on at majority of the District Courts and in some of the Taluka/Tehsil Courts. The High Courts have constituted Project Monitoring Committees to oversee the project activities in the District/Taluka Courts under their jurisdiction. Many High Courts have also constituted Committees for getting site preparation executed with the help of State Public Works Department. For around 13000 judges E-mail/Internet facility is being provided through Bharat Sanchar Nigam Limited
None of these Court websites or portals are interactive or justify the spending of huge resources from public usage or access to courts made easier for citizens at large. It is more stovepipe-thinking by the officials who are not having stakes in making the system transparent and open to use by using the ‘Six Degrees of Sharing’. It is completely against the logic of internet that only a restrictive use of ICT is made. There are two catalysts in application of ICT which need to be factored for RoI and LIA
• Obsolescence
• Maintenance
These catalysts of ‘change’ can be prohibitive and discouraging especially in troubled economic times like current scenario . It is said ICT is supplementary and not an end in itself.
ODR: ICT inputs
The convergence of technology has meant cutting geographical barriers and sharing the innovative products for a reasonable cost through the internet. Initiatives of confluence of ADR and web together termed as ODR (Online Dispute Resolution) has seen clusters of web-based programs and portals but very rarely would they make it accessible beyond their geographical extent or territorial jurisdictions i.e. where the servers may be located or site may be located . However, there is ample reason and scope to move it beyond the restrictive jurisdictional covenants. Some more recent portals offer this option . Indeed most companies today use grievance redressal mechanism through their own websites either as compliance or service to consumers. This is more successful in areas where law is obsolete and Courts are over burdened and have huge backlog of cases like in India.
Whilst many web sites act as referral and information points others provide online service and suggest that online ADR can have many benefits such as saving travel costs and keeping parties separate (particularly in domestic violence situations) .
ODR has tremendous unexploited potential, although UN reports have proposed its extensive use by those countries which are lagging behind in legal and technological reforms. The Digital Divide can be of personal Digital Divide and institutional Digital Divide on global scale.
Learning Curve: Need-based Technology
In the first case, Iron Workers Local Union No. 17 Ins. Fund v. Philip Morris, Inc., the parties did not use ECF. As a result, attorneys manually served each of the 113 lawyers on the service list. By the end of the case, the parties filed 925 separate docket entries, generating tens of thousands of dollars in expenses.
In contrast, the case of Re/Max Int’l v. Realty One, Inc., involved twenty-six lawyers and 977 separate filings. Had the court not utilized ECF, the lawyers would have paid to serve 25,402 separate documents. The cost savings were significant, particularly because the court imposes no fee to use the system. Judge Gwin, further stated: “we have gotten only positive comments from attorneys” using ECF.
Technology in Court rooms around the globe can vary as is demonstrated in Figure 2 below.
AREA or REGION %age of Courts using technology
North America 100%
Australia 70% (e-courts are fully functional only at Federal level in Australia)
EU(as it exists)
35 % (mainly Western Europe, Lisbon strategy is prominent role model on e-gov)
CIS and Russia 25% (mainly Russia)
Latin America (under 20 %) Chile is most remarkable followed by Brazil and Honduras.
Asia (less than 35%) mainly South East Asian countries, Singapore and Hong Kong have high indices of usage and applications the courts here offer)
AFRICA Less than 5% (mainly South Africa and UN Tribunals)
Error margin is of 5%.
FIGURE 2: Digitalization of Courts globally
It is not necessary that most technologically advanced has to be necessarily good in its application and usage, as is illustrated by this comparison between North Ireland and Japan. (Ibuzuki, 2008) The Northern Ireland court always takes their role as public servant and recognizes the people as their customer. In Japan, on the other hand, the court office does not regard itself as public servant and they do not assume their business as customer service but as of more authoritarian function.
WAY FORWARD:
The Six Degrees of sharing (both active and passive) as illustrated by ITU lists sharing of access to cut the Digital Divide as:
? Broad Band network sharing
? Mobile Network sharing
? Spectrum Sharing
? International Gateway liberalization: use of Submarine Cables, Satellites, etc
? Functional Separation: discriminatory set up – separation of functional and regulatory bodies.
? International Mobile Roaming: making it affordable
Most of these have provide for hardware and access deficit charges sharing in a non-discriminatory manner and further spread of the technological mobility to fill the gap in global Digital Divide.
The present economic crisis can be seen an opportunity to cover this wide and increasing ‘global digital divide in dispensing Justice’; in view of technological advances and social factors “affecting” knowledge spread by ICT innovation. Many of the developing nations do not necessarily have to invest in the hardware more than required for. If the vendors also decide as confluence of interests (business and social) this can be cross-subsidized in pricing, much like modern barter (as it evolves).
An interesting example is the new laptop which is for internet use only and costs less than 250 USD in most places. Similarly if the Court room technology is evolved wherein internet is the basis of sharing, using VSAT, WI-FI WI MAX or creating WI FI cooperatives (as in US) then the basic hardware and ‘level one technology’ can be effectively implemented even in those regions say in Africa and Asia wherein less than 100 kilo meters of metalled road may exist.
CONCLUSION:
It is increasingly imperative that infrastructure (legal is indispensable in growth of ecommerce or trade) availability to the citizens across the planet is available on more and more equal sharing basis. Globalization tends to destroy the fabric of many societies and creates many divides but this is not new, only the way forward has been traditional and restrictive.
It is then new aspects of modern ‘Global Barter system’ on providing access to network (including hardware) capacity and sharing of benefits and experiences by developed world with the developing and transitional societies which will hold key to the leveraging of ‘Digital Divide in dispensing Justice’.
The convergence of technology with internet as base coupled with confluence of interests (socio-economic,) in an increasingly transactional world, invites serious thinking in terms of structure and design of court room technology which does not necessarily has to be uniform but more and more common option. Its collective global profitability is compelling enough to think of its lateral expansion with as many vertical splits for those who can afford to have the same as part of their Court and ADR system.
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Castells,Cardoso (Eds) 2006 , Innovation Technology and Productivity: Why Europe Lags behind US and why various European Economies differ in Innovation and Productivity, Luc Soete(2005)
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TERMS:
Digital Divide in Dispensing Justice; Digital Divide can be manifold but here only in global context qua Court room technology;
Court Room Technology: Technology aiding the court processes through the audio-video convergence option with documents and graphics display in real time in a secure environment.
RoI : Return on investment, this is used to gauge the returns justifying expenses for hardware in court room technology
LIA : Legal Impact Assessment: this is court tool to assess the cutting of time, length of process, etc on introduction of technology in courts.
Vowel Laws: ‘i’ or ‘e’ are now common words for any ICT initiative so I have used this term of ICT application in law or Justice system.
ADR: Alternative Dispute resolution methods, these are mediation, conciliation and binding as arbitration without extensive evidence and adversarial Adjudicatory system
ODR: Online Dispute Resolution- Online Dispute resolution where in filing of claim and response is facilitated in a secure web environment.
Digital Divide in Dispensing Justice; Digital Divide can be manifold but here only in global context qua Court room technology ;
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