The National Center for Technology and Dispute Resolution (NCTDR) (www.odr.info), led by Ethan Katsh and Leah Wing, has led the charge for over a decade to build a stalwart community of people interested in making justice accessible to all by introducing innovative justice applications, principally based on online dispute resolution practices.
We are in the midst of the 17th Cyberweek, and many of us have just attended the 13th ODR forum, held for the first time in the U.S., just a few months ago in Silicon Valley. NCTDR has built a community of technologists, mediators, lawyers, judges, academics, visionaries, venture capitalists, government officials and justice professionals from across the globe, who are committed to improving access to justice through innovative uses of technology. The time has come to transform this catalytic effort into a movement to build the justice layer of the internet: a comprehensive effort in our online interactions to not only consider usability, security, and connectivity as essential functions, but fairness, redress, and transparency as well.
As I write this note, The World Bank is convening a forum on Law, Justice and Development, which I am attending. There are few professionals working at the crossroads of technology and justice represented at this forum. The only topics on the agenda relating to the online world relate to cyber-terrorism, cyber-warfare, virtual currency, and collecting taxes online. The status quo discussion about institution building is a discussion about bricks and mortar. When those in the online resolution community talk about institution building, we are often talking about building cloud infrastructure and cross-border norms. Who’s listening? We need to step up and engage the world community in the transformation of justice as it can be defined in a 21st century environment. What does that mean to you? What is your role in the online justice community?
Later this week, there will be an internet radio broadcast by Pattie Porter, featuring David Slayton, the Administrative Director of the Office of Court Administration of the State of Texas, who has embraced the idea of utilizing innovative justice technologies to increase access to justice. It seems that the opportunity for all of us to collaborate with the public sector is at hand.
I wrote the following article for ODR 2014, which was published in the Huffington Post. It is just one view on how we can use the efforts initiated by NCTDR to move from catalyst to agent of change. The time is now. Please offer your views.
(Text is hyperlinked. Link also here: http://www.huffingtonpost.com/jeffrey-m-aresty/shaping-the-rule-of-...)
The changes resulting from the rise of the Internet are taking hold, and the legal community has yet to catch up to the way the world is now interacting. As our modes of business and daily interactions take place increasingly over the Web, the world is beginning to define the ways in which those exchanges will be characterized. This presents a new range of challenges for us in the legal field and as a global community, but it also presents an opportunity. Bringing the rule of law online will be an essential part of determining how we shape the future of global normative behavior and present an opportunity to redefine what we believe to be the right way to act, based not only on the multiplicity of laws as they stand, but rather based on a new organic democracy that will define itself in an harmonized way. The ability to negotiate, reach consensus, and resolve disputes online will be an essential set of skills for all who participate. But why does this new system of norms need to be defined in an haphazard fashion as countries everywhere come up with their own sets of laws to govern online behavior, leading to conflict and confusion?
Individuals from the online dispute resolution community have met regularly to examine the newest technologies and issues that are affecting justice in online interactions, and come this year to the United States to discuss topics like the role of privacy, identity and trust on the internet, and how they relate to justice.
This is where the role of trusted online communities comes into play. And one of the biggest factors in trust in online interactions is verification of and trust in identity. Just as a democracy depends upon the right of each citizen to their vote, access to justice for each individual in a globally based justice system depends upon being able to verify who is accessing the system, and making sure that the system is trustworthy in all respects, from the users to the design itself. Many individuals have spoken on the need to develop an "identity" layer of the internet that verifies user identity on top of the interactive web as a step toward solidifying trust in exchange and communication online. I believe this is the case, and that it will go hand in hand with the creation of what I call a "justice" layer -- a new definition of normative behavior for how we relate to one another, including trust in identity. This will be supported not only by the legal complex, but also by global consensus and collective action toward what we define as justice. The resolution of disputes online will become a knowledge set that the legal community and others will need to understand.
But for every answer, there appear to be many more questions, particularly when dealing with the cultural technicolor fabric of our planet. For example, how do we balance the necessity of democracy through digital identification with, as the European Commission has defined, the right to be forgotten? How much control can and should we have over the information compiled online about our person? How much control should our government have?
Innovation has been helping to address some of these questions. Start-ups like Qredo and Wickr are taking steps to develop technology that will allow users access to secure platforms and close to complete control over their online identity and information. Checks and balances, peer review and transparency will also play a part in any viable system.
The creation of a technology-enabled system of effective democracy will require all segments of society to participate. Industry has the opportunity to play a leading role in helping shape a "justice layer" of internet communication on top of the internet communication protocol it helped to build over 20 years ago. It will also require the participation of academia, a non-fearing legal system, and the global community as a whole to create a truly "we the people" system of online governance.
Jeffrey M. Aresty, Esq. is a Massachusetts lawyer based in Houston, Texas and has been involved in international business law and the role of technology in the transformation of the practice of law for almost three decades.
Mr. Aresty is the founder and current President of Internet Bar Organization (IBO). The IBO's mission is to use the Internet to promote legal and economic justice for all people.
Additionally, Mr. Aresty is a Fellow at the Center for Information Technology and Dispute Resolution at the University of Massachusetts. His involvement in the Center centers on promoting the use of online dispute resolution technology as an alternate to traditional methods. His ongoing law-technology activities concern (1) e-lawyering training, including ODR and (2) initiating global law reform in online communities.
Among Mr. Aresty’s accomplishments are initiating and directing the “ Computer College” program (1983-1987) that assisted lawyers in bringing computers into law practice and co-founding the ABA’s TECHShow in 1987. He co-edited two books on cross cultural influence in international business and e-commerce for the ABA, including “The ABA Guide to International Business Negotiations”. In his position as the Reporter of the ABA’s e-lawyering Task Force (www.elawyering.org), Mr. Aresty has written several articles on the technical, legal and practical implications of the practice of law in Cyberspace, the most recent of which is on the transformation of state courts to virtual courts (http://www.americanbar.org/publications/litigation_journal/2012_13/...). Anyone interested in a copy of the article can send Mr. Aresty an e-mail at email@example.com.
I hope we'll get some action - here's a shorter version of my statement. As a practicing lawyer for over 35 years, I am amazed by how little the justice system has changed. It's just like it was when I started practicing law - paper based, with courts, lawyers offices, and government buildings - very little has gone online other than simple processes to expedite access to the old systems (like e-filing). Unlike online banking which changes the way we bank in a transformational way (from paper and banks during bankers hours to anywhere/anytime banking), law hasn't changed - but access to the justice system is in broad decline in the US and elsewhere. In the field of online banking, somebody figured out how to lead the transformation and get buy in. Where is a similar effort taking place in the justice system?
The idea proposed in my opening statement of 'building the justice layer of the internet' is to recognize the vision that someday (sooner or later), all justice will be accessible through the cell phone. What kind of 'justice" that is available remains to be determined - what kind of systems will be put into place first, then later, is still up for grabs. How we will all work with the public sector of today (they are the enforcers, and, where the public knows to go for justice) to initiate the transformation is an open item, too.
I'd appreciate to hear from you!
This is a great discussion.
It is my suggestion that the importance of building relationship partners to bring a justice layer to the internet is essential. The task is too significant to achieve successfully without partnerships with other organizations, entities and quasi-governmental bodies.
It is my belief that a justice layer to the internet is much sought after. In some cases, young people are disillusioned that it won't happen soon enough. In other cases, people are concerned that personal interests have trumped the objective of a justice layer to the internet (conflict of interest).
One of the questions may be - to what extent is conflict of interest limiting the proper development of a justice layer of the internet?
Thanks for the reply! I agree wholeheartedly that this has to be a team effort. No one entity can build the justice layer of the internet, but a vanguard needs to assemble around the areas that can benefit most from the work. My view is that the work in legal aid, millions of cases with little or no access to justice in any real sense, can benefit greatly from technological intervention. In these arenas, we can build upon coalitions that have all ready organized around the access to justice theme and partner with them on pilot cases to demonstrate where we can add value.
Conflicts of interest are going to be inevitable - this is a huge challenge. Intellectual property issues will come up at the outset, as well as deciding how to fund the groups that take on the challenge. But for profit companies will have a role, and, we should let them - just define the terms of engagement up front. A little history can show what happens when a vanguard fails to form.
Recent history demonstrates the lack of trust that society generally has with letting for profit companies lead the development of a public commons asset - witness the entire debacle surrounding digital identity.The earliest efforts to gain control and/or to define its parameters go back to 1989, and, since then, any number of public and private parties have stepped up to define the area. With what success? Very little other than a huge mess of digital identities/passwords which has led to cyberhacking, identity theft, the growth of identity protection business; all of which could have been forestalled if at the very beginning we had all taken some initiative to control our digital identities. We didn't as a society, and, it has gotten out of hand. So, the lesson for the justice layer of the internet's development is that we have to recognize that as long as we all put our interests 'on the table', are transparent and honest about them, and, we work collaboratively toward building a fair, equitable and honest justice layer - good things can happen. And, sure, some will benefit on the capital side - but I think that's probably ok as so many can benefit due to the potential to increase access to justice.
I've always thought that the public sector should be leading the charge for ODR. It hasn't happened that way but framing the problem as Jeff does makes sense and may even bring innovation from the public sector.
Raising this issue of a justice layer reminded me of the EU-funded VirtualLife project that sought to first build this kind of justice and accountability layer into a closed system like Second Life and then expand it once some foundation concepts were tested. I believe the idea included the possibility of lillypad like overlapping system nodes with their own kinds of autonomy. Here's an image from a write up the project.
The idea being developed was that there are different types of rules in virtual spaces (technical, legal, reputation-based, energy-in based), some easier to enforce than others.
While I get the idea of a "law bound" world controlled by one set of software developers, the world internet system seems way more difficult to wrangle when you move beyond simple technical controls to try and develop and enforce broader sets of shared norms.
Does this experiment offer any ideas for us as ODR folks?
As always, Bill - you've got some great ideas to bring to the fore. Maybe all I can do at this stage is offer a couple of the examples we are working with, and, just say parenthetically, that the core team, of course, includes software developers, but just as important, it includes government folks, judges, academics, business leaders, non profits... you get the idea - we are being as inclusive as we can.
The point for ODR folks is to find cases in a law bound world that are susceptible to resolution (or even prevention) because of innovative uses of technology. We are using the term 'justice layer of the internet' to build on to the communication infrastructure of the internet a set of tools and rules that are available to groups everywhere to build innovative justice applications that help resolve or prevent specific cases. Initially, we are working with government to assist vulnerable members of the population to give them tools to empower their situations (children are an initial group). We are also working in the environmental area - so much data is being collected, but to wait for an enforcement action to be brought to use that data in a preventive way is such an incredible waste! What kind of algorithms could be built to use that data to tell the story of how a climate is changing in specific ways (not pointing the finger - just telling the facts).
It is an early stage for our project, but clearly ODR folks are among the most knowledgeable folks around when it comes to understanding the way the technology works, the way to explain and educate others about it - and, what we are doing by partnering up with the law bound world is to find cases that we can work on to bring innovative solutions to - but to do it in a way that uses the communication infrastructure and multidisciplinary groups, to allow us to 'scale' answers.
The concept of adding another layer to the justice system is intriguing. I wondered what its implications there might be in prison environments. These environments can be particularly stressful for prisoners, staff, visitors and the public. During my thesis research I had an opportunity to communicate with corrections professionals in six Western countries including Paul. These professionals were generous both with their time and ideas.
Paul mentioned that prisoners could be bullied linked to others gaining access to their main mediations. Ruby explained, “...we are working with a diverse group inside the institution that just clashes cultures, clashes on issues that had happened on the street before they came in”. There can be disputes in prisons between correctional professionals and prisoners and amongst the inmates. Samuel, Sally, Carol, Kira and Dean mentioned that mediation could work in prison settings. Kira said that for mediation to be effective at her work, “I would think that it would need to be done in-house”. Dean said, “A lot of grievances or misunderstanding is from what I see is stubbornness on both parts”. Dean continued that write-ups and litigation could be avoided “if they were to sit down and say what’s the issue what’s the problem”. Perhaps an apology could be useful to limit hostilities. According to Dean mediation can create a situation where there is ownership of wrongdoings and open accountability.
Dean mentioned that there could be drawbacks if mediators were not familiar with prison environments. For example, he was concerned that such mediators might not be aware of “...small subtleties of security and safety and vigilance and how slippery the slopes on the outside can be in terms of sliding in the wrong direction in here”. Dean and Kira both thought that a panel, such as a conciliation board could help. Kira mentioned that it might be important for prisoners to buy into and to develop processes associated with a panel. Carla mentioned about the “instrumental role” of inmates in the development of other programs to maintain and develop equal protection. Members of these panels could include staff and prisoners from the jail and independent experts. Individuals from the prison could provide a rationale to experts as to why certain practices are encouraged or limited in the prison. Dean indicated that a panel could give him an opportunity to provide others with his input and eventually a collective decision could be made. Through a panel he would be unlikely to be singled out for making unpopular decisions that might have an adverse impact upon his colleagues or prisoners. Perhaps principles in Online Dispute Resolution can be transported to, for example, mediation and panels in prison environments. Maybe for this to happen correctional professionals could work in conjunction with "...the core team, of course, includes software developers, but just as important, it includes government folks, judges, academics, business leaders, non profits... you get the idea - we are being as inclusive as we can" (Jeffrey Aresty, 2014).
Jen Geary, Dr, LLB., MDE.
I agree wholeheartedly that we should work within the prison system, and, that ODR has unique applications in that environment. Thank you for your comment.
Jeffrey Aresty - prisoners’ can fall through “safety nets” and professional turnover might exacerbate this process. One of the benefits of Online Dispute Resolution including mediation could be that it can be a preventative approach. Online Dispute Resolution may be applied, for example, pre and post litigation. Parties could apply this model to lessen incidents, which involve litigation or to bring about out of court settlement. In a study that I was involved with which took a human rights perspective to explore professionals' perspectives on older prisoners situations Carol explained, “Using budget as an excuse is unconscionable and the possibility of considering the needs of the younger offender as being more important because they have a family to care for when released is not an excuse either”. More information about the study is at http://www.publications.parliament.uk/pa/cm201314/cmselect/cmjust/8... . When prisoners including older ones are placed in custody society often has a duty to do more than simply warehouse them.
Jen Geary, Dr., LLB., MDE
Jack points out some interesting things - information that gets posted about each of us, thus creating a digital footprint, isn't so easily discarded. Usually, there is some intermediary (Google, Facebook, Yahoo to name a couple) that are the aggregators, and, these intermediaries are subject to the laws of every jurisdiction where they reach (everywhere) - and, so they are often times subject to conflicting rules. In Europe, there has been a movement concerning the 'right to be forgotten' - the ability of an individual to get certain information wiped away. I'm just not sure how that can be accomplished in reality. Witness the victims of identity theft, and, in some cases, the years and money that it takes to fix ones credit that was fraudulently interfered with. Laws don't seem to work to change conduct; but if digital society can say that we are creating new norms; while we are building the justice layer of the internet we can make it clear to corporations and others (govt, universities, ...) that they have to start relying upon what each of us say about ourselves as we build our own online reputation as the primary source for making decisions about jobs, credit, admissions to school. And, to the extent that they don't, society will call them out. Laws can support this effort but to be enforced, they need societal support.
The second point is that we all have to build this layer together. This will work because we build normative behavior on a global basis. It certainly has to happen that way. We are all global citizens. We are all affected by what happens anywhere on the planet. The idea that we can live behind real or virtual walls to protect ourselves from a negative force that starts outside the walls is a myth. As was noted by the Stanford doctor who was interviewed this morning from his makeshift hospital in Liberia, where he and an entire team have worked on Ebola patients for 7 weeks straight, we make on our own bed - we either stop the disease at its source, or risk the consequences. The digital society has its ills - and, one of them is the damage others can cause to our identity - to think that governments have the power to protect us misses the point that they are subject to the same reputational loss (hackers get into NSA, the DOD, as well as Home Depot and Target and Chase) as we are. By building a justice layer together, we set the norms - and can hold those accountable who choose to operate outside them. Together - that's the operative term.