Friday, May 31

Fri, 5/31: 10:00 AM  - 11:45 AM, Hyatt Congressional C 

Chair/Discussant: Mohd Hwaidi, Nottingham Trent University  

Distributed Ledger Technology and Electronic Trade Documents: A Comparative Socio-Legal Study of The Future Legal Difficulties

Mohd Hwaidi, Nottingham Trent University  

This paper identifies the future legal difficulties that may arise in the service of providing electronic trade documents via Distributed Ledger Technology (DLT) in international trade. The focus is on bills of lading and negotiable instruments as they are the most common trade documents in use in international commerce. A comparative study has been conducted between different national laws, representing developed and developing countries, with focus on the most hegemonic laws in international maritime. This paper proposes solutions to address the identified legal difficulties on the basis of both the sociological nature of trade documents and the pragmatic ways to circumvent the legal difficulties.

Law, Legal Professions and Legal Education: The Role of Information Technology in the Brazilian Legal Market

Theófilo de Aquino, Fundação Getúlio Vargas, Alexandre Pacheco da Silva, FGV Direito SP, Marina Feferbaum, FGV Direito SP  

The project can be divided in two parts. On one side, a quantitative research with more than four hundred legal offices across the Brazilian territory takes place to build a broad picture of what has been happening at a national level in what comes to adoption of artificial intelligence and how this has been impacting the legal profession all over Brazil. These findings allow us to make correlations between the kind of technology used and either the size and wealth of the legal business or the region of the country it is located, giving us some interesting insights about the inequalities within our legal market and the reaches the technology is actually achieving in this context. On the other side, we conducted a qualitative share of the research composed of case studies with sixty-three selected legal offices, legaltechs, consulting firms and public branches of the Government and the Judiciary so that we could go deeper on understanding how the innovation processes are being conducted within these actors. The research has achieved insightful information about the disruption in the Brazilian legal market caused by information technology. We hope to divide our presentation in two parts. The first one will adress the changes that have already happened, so that the state of art of technological disruption in the legal market can be described. The second one will draw on data collected from the interviews conducted to propose some goals law firms and law schools should aim to so that they manage to fit in this new world that will be born from those disruptive processes.

Revisiting the Participatory Promise of Machine Learning in Civil Discovery

Fernando Delgado, Cornell University

Although often framed as a new and controversial technology, the application of machine learning to the legal domain has a rich yet under-examined history. As early as 2008, legal practitioners and computer scientists began experimenting with machine learning techniques in order to address challenges presented by dramatically increasing volumes of data involved complex civil litigation cases. Key arguments made for adopting machine learning in civil discovery were couched in the language of efficiency. Yet these arguments were often extended to include claims that machine learning expanded access to justice to parties otherwise unable to shoulder the burden of discovery. Now known as predictive coding, or technology-assisted review, machine learning for discovery has been in active use since 2012. And while its use is considered standard practice by the courts, it is unclear whether this technology has in fact meaningfully broadened participation in civil litigation. In an era where technological solutions are proposed as remedies to systemic legal issues, it is worth critically examining any claim about technology expanding access to justice. With six years of active use, there is now a robust starter data set to begin answering the question of who in fact is using and benefiting from machine learning in civil discovery. This study aims to lay the initial groundwork for an empirical analysis of this claim focusing first on an analysis of the actors involved in the nearly one hundred federal civil cases where machine learning was leveraged to automate discovery.  

The “Criminal Record of the Internet”: Rehabilitation in the Digital Age – A Case Study of Israel

Michal Totchani, Stanford

Nowadays, information about prosecutions and convictions is becoming more accessible and new “criminal records” are documented forever on the pages of the internet. My research explores whether technology makes expungement a practical impossibility, and what effect it has on people’s willingness and desire to see offenders punished. My work raises important questions about rehabilitation approaches and their utility in the future. Through an online survey conducted in Israel, respondents followed scenarios that illustrate criminal cases and determined whether to support prosecution, including in cases when information will be documented forever. The assumption is that in cases of minor crimes, eternally documented stigma will be too harsh, and people will not want to convict or prosecute at all. My paper rests on a theoretical background rooted in technological determinism scholarship that links technology development to social changes. The latent dimension of public morality that the research is trying to uncover is impacted by the fact that expungement becomes practically limited due to technological changes. Therefore, one cannot avoid wondering whether the digital age foreshadows the death of rehabilitation.

State Use of Technology

Fri, 5/31: 12:45 PM  - 2:30 PM, Hyatt Capitol B 

Chair/Discussant: Renee Shelby, Georgia Institute of Technology

Biocitizenship and the Rape Kit Backlog

Renee Shelby, Georgia Institute of Technology

Since their inception, rape kits have been framed as a powerful technoscientific mode for bringing perpetrators to justice and have become a popular site of sexual violence activism. Yet paradoxically, rape kits have a minimal impact on the disposition of charged cases. In recent years, African American historians have articulated sexual violence as a “citizenship project”-referring to how authorities and authoritative discourses target some populations as potential citizens and acts upon them-and there have been important contributions from the field of Science and Technology Studies (STS) in understanding how the rape kit, and forensic evidence more broadly, follows prescribed social, criminal, and forensic scripts. In this project, I put these insights in conversation to propose the rape kit can be understood as a biopolitical citizenship project connected to historic constructions of race, gender, power, and civil rights. I argue rape kits power a “forensic gaze” that materializes both victimhood and a biocitizenship using the episteme of traditional gendered and raced narratives of legitimate sexual violence. In effect, appeals to the importance and necessity of the rape kit masks how criminological interpretations of sexual violence remains connected to the performative compliance of racially gendered norms. While the state responsibilizes survivors to take control of their lives and legal futures by submitting to a rape kit, the state re-establishes its power by failing to process kits through irresponsibilization. Investigations into rape kit governance reveal how irresponsibilization is a multifaceted and anachronistic practice of sexism and racism empowered in part through legal codes. Three especially relevant legal codes that render rape kits a hierarchical practice of state authority and irresponsibility include: (1) the lack of tracking system for rape kits; (2) having no right to check up on kits; (3) and the ability to destroy evidence.  

Dignity Through Deterrence? The Assumptions of the Use of Technology on the Mexico-US Border

Ariel Sánchez-Zúñiga, UNAM,Vivette Garcia-Deister, UNAM  

The use of state of the art technologies on the Mexico-US border is purported to treat immigrants with more dignity, especially in opposition to the construction of a symbolically charged wall, which has been called a “third century solution” and which Mexico’s President Enrique Peña Nieto considered to be “against our dignity”. In this paper we analyze this assumption through the lens of science and technology studies and argue that: a) a highly technified border does not necessarily deter illegal immigrants but rather pushes them towards ever more dangerous paths; b) technology is not an inherently better, neutral and/or value-free solution to the issue of illegal immigration from Mexico to the US; c) there is a circularity in the sense that the consequences and problems of an ever increasing technification of the border are expected to be solved through further technification. In the end, our analysis of the assumptions of the use of technology on the border shows that technification does not by itself imply a more dignified treatment of immigrants, and, in that sense, it should not be used as a proxy where political action and responsibility are needed.

The Banality of Police Body Worn Cameras in Canada

Katrin Roots, Carleton University, Mariful Alam, York University, Amanda Glasbeek, York University

While in 2016 our preliminary examination of reports and literature on body worn cameras (BWCs) indicated a shift in the key goals of BWCs away from accountability and transparency and towards a focus on evidence collection, our empirical research based on 65 interviews with police, defence and Crown lawyers, community organizations and other interested parties, reveals that a more complicated picture is emerging. We argue that in the current social and political climate, BWCs are much more banal than initially predicted. In particular, it has become evident that BWCs are merely another mundane policing tool rather than an answer to publicly raised questions about police accountability, transparency, evidence collection and racism. In this paper, we discuss three major barriers to the project: (1) inadequate legal infrastructure, court bureaucracy, and law’s inability to quickly address technological advancements; (2) limitations of film and on-screen images to meaningfully address implicit police bias and structural racism and; (3) BWC footage being used as simply another tool of evidence collection (rather than an objective account of the incident) in the salient process of making a criminal incident, leaving police to narrate and provide the context for the incident through police notes. To be clear, we are not suggesting that BWCs are becoming obsolete but rather, the technology that will take its place in the future will likely be different than how we imagine it. What that technology will look like, let alone how the law will govern it remains to be seen.  

The International Criminal Court and Open-Source Evidence: Challenging the Standard of Proof of ICC and the Dilemma of Imperiling the Universal Right to Fair Trial and Personal Dignity of Parties

Armis Sadri, American University Washington College of Law

As technology develops, new tools are continually being introduced that alter the nature and availability of courtroom evidence. Considering the especially beneficial nature of the open-source evidence, the so-called open-source investigations are becoming more and more popular in the ICC. Open-source evidence, which may come in the form of photographs, video and audio recordings, emails, blogs, and social media (e.g. Facebook, Twitter) poses challenges to the ICC’s standard of proof, which varies depending on the stages of an investigation or a proceeding. The right to a full equality to a fair and public hearing by an independent and impartial tribunal is intertwined with human dignity and is fundamental to the operation of the rule of law. It is also necessary to evaluate the probative value of the evidence and weigh it against the prejudicial effect that the evidence might cause. Respecting the dignity of the victims, defendants and the witnesses has been confirmed in the Rome Statute of ICC, Article 69 (4&7), but the open-source evidence confronts in several ways the protected right to fair trial that goes to the heart of human dignity and the nature of reliability, authenticity, credibility, and impartiality standards. Many scholars, including Alex Whiting, Emma Irving, Keith Hiatt, and others have weighed in on analyzing the issue of what the ICC actually does to accomplish its goals of deterrence and punishment and preserving the parties’ right to fair trial and personal dignity, while confronting technology, like the internet, that has the capacity to challenge the ICC’s authority. To ensure the personal dignity of the parties in ICC’s criminal investigation and proceeding, should it be the case that the higher the burden, the less weight is given to open-source evidence? This paper tries to address the posed question under the notions of the right to fair trial and personal dignity to explore whether the approach to open-source evidence should change.

Online Speech Regulation

Fri, 5/31: 2:45 PM  - 4:30 PM, Hyatt Congressional A 

Chair/Discussant: Jacquelyn Burkell, University of Western Ontario

Addressing Online Attacks: Youth Perspectives and Legal Responses

Jacquelyn Burkell, University of Western Ontario, Jane Bailey, University of Ottawa

Online attacks can have negative effects on the psychological wellbeing and the reputation of victims, sometimes with serious long-term consequences for mental health, social relationships, and academic and employment opportunities. We present the results of interviews with young Canadians, exploring their perspectives on responding to online abuse. They discussed four goals when responding to online attacks: minimizing the damage; repairing or redressing harmful effects; appropriate consequences for perpetrators; and preventing future attacks through education and attitude change. They reported relying, to various degrees, on a variety of actors for support in achieving these outcomes. In addition to identifying victims themselves as key to responding to online attacks, they also discussed the roles of social contacts, parents, schools/teachers, online platforms, police, and the criminal and civil courts. Legal responses were considered effective and appropriate for only the most severe of online attacks, where these responses were identified as potentially effective in redressing harms and punishing perpetrators. Participants noted, however, that legal responses were completely ineffective to address the highest priority goal: minimizing the harm by quickly removing or isolating content; they also noted that existing legal responses were inappropriate for less severe online attacks. We discuss the value of legal responses in addressing the full range of goals identified for responses to online attacks, and identify ways in which the legal system can better respond to the priorities of victims of these attacks.  

Internet and Deliberative Democracy: Freedom of Expression and Hate Speech

Joao Longhi, Federal University of Uberlandia, Fernando de Brito Alves, State University of Northern Paraná  

The popularization of information and communication technologies (ICTs) brought many changes to society. And freedom of speech is no different. There are many views about the present and the future for the right to freedom of expression, opinion, communication, as well as the risks coming from the use of these technologies. Extremisms, Fake news, and other questions are frequently been studied as risks for free speech on the Internet. This paper is about legal aspect of hate speech, focused on the analysis of Brazilian perspective within social media, and how the hate speech disrespects the democracy’s dignity and the informal norms of governance. On the first part, it analyses several concepts related to freedom of expression as an crucial element for deliberative democracy, trying to build the theoretical basis for an overview of the problem, focusing on problems of informational bubbles that promote the radicalization of discourse. Secondly, it tries to focus on the concepts around the right of free speech, the differences between the a more liberal or limitless understanding of free speech in contrast with a more protective view that believes, as a starting point, that free speech is not absolute. Finally, this brief theoretical framework to discuss the fundamental problem about the forms of manifestation of this hate speech and your legal regulation, seeking to contribute to the recent debate about the responsibility of providers for hate-related content.

Online Language Crimes and Legal Interpretation

Janny Leung, The University of Hong Kong  

Without succumbing to a sort of internet exceptionalism, it is reasonable to speculate that the modern communication environment changes the analytical context of language crimes (such as hate speech, incitement, and various public order offences). This paper samples legal cases from different jurisdictions (including Europe, Hong Kong, the United Kingdom, and the United States) to gauge how the medium of modern communication affects the legal interpretation of these cases. Some of the interpretative problems explored include the boundary between public vs. private speech, and contextual factors that contribute to the determination of intent. I argue that complexities in the modern communication environment have blurred some established legal boundaries in the analysis of language crimes, potentially forcing their reconceptualization.

Revenge Pornography, Data Protection and Intermediary Liability

Ksenia Bakina, Royal Holloway University of London

This paper considers how the General Data Protection Regulation can help to safeguard human dignity and autonomy by assisting victims of revenge pornography to remove their images from cyberspace. The problem is that the phenomenon of revenge pornography is spreading and it is currently estimated that there are over 3000 websites dedicated to revenge pornography worldwide. Private sexual images can be distributed on numerous online platforms such as specific revenge porn websites, social media, messaging boards and ordinary pornographic websites. It is very difficult to remove revenge porn images from cyberspace completely, as once they are removed from one website, they can easily resurface elsewhere. The websites hosting such images can be immune from liability as they are largely relying on third party content. This paper argues that data protection legislation is an important tool in combatting revenge pornography and can be used to overcome the hurdles surrounding intermediary liability. It enables victims of revenge porn to remove their images from the Internet, move on with their lives and feel like a sexual subject, rather than a sexual object.  

Text-based Abuse & Online Misogyny: Where is the Harm?

Kim Barker, University of Stirling, Olga Jurasz, Open University

The ideal of an open, all-inclusive and participatory Internet has been undermined by the rise of misogynistic abuse on social media platforms. However, limited progress has been made at supranational and national levels in addressing this issue. Online abuse has a significant impact on its victims that is underestimated by policymakers and subject to misperceptions that online is not ‘real’. The latter misperception further compounds the problem and the challenge of responding effectively to online social media abuse, especially its text-based forms. In addition, whilst harms associated with image-based abuse have gained recognition in law (leading to expeditious law reforms and increase in accountability), harms caused by text-based abuse have not been conceptualised in an equivalent manner nor given the same attention. Through identifying and recognizing the impact of online abuse on the victims, this paper advocates for a greater recognition of online harms within the legal system. In attempt to enrich the existing literature on online harms, we identify a range of harms arising from text-based abuse. Specifically, we refer to non-traditional harms recognized in unreported cases R v Nimmo and Sorley (2014) and R v Viscount St Davids (2017). These non-traditional harms stand in stark contrast with traditionally recognized harms which appear in established legal authorities from senior courts. Finally, we seek to emphasize the connection between the harms suffered and the recognition of impact on the victims, demonstrated through specific case studies.