Advanced technology is considered the new panacea for improving access to the legal system. It’s great that many people find advanced technology helpful, but no matter how helpful technology may be, it cannot help everyone. Last October 18th, TAG facilitated a day-long symposium that introduced draft guidelines with the goal of encouraging providers to ensure that their technology is inclusive.
Using technology in the legal system is hardly new (especially if we recognize that the telephone is a form of technology), but the proliferation now seems a daily event. There is no doubt that advanced technology can make it easier for many people to use the legal system. For example (whether currently in Canada or no doubt here soon), benefitting from dynamic, interactive online information, completing online forms with capacity to transmit the information to other forms, applying for social benefits online, using a chatbot to fight parking tickets, communicating with lawyers through on-line portals over out-moded telephones or having to attend at the lawyer’s office, appearing in court through videoconference, resolving disputes online, accessing procedures specifically designed for litigants representing themselves, and more, have made interacting with the legal system quicker, more convenient, easier, and less costly. Excitement now is around artificial intelligence based on natural language processing, the machines that will think like human beings and will no doubt take the fun out of law as they busily predict outcomes and make decisions in at least simple cases (at least for now).
It’s difficult enough for most users to understand the privacy and confidentiality ramifications, possible inherent biases or lack of capacity to respond to unique circumstances in some forms of technology. But for some legal system users, the challenges are more immediate. Among other barriers, broadband internet is still not available in some areas, not everyone enjoys computer literacy, non-English (or French) speakers may not be able to navigate information or processes, those with a low income, living in poverty, may not own a computer and must rely on public computer terminals available in libraries, thereby raising privacy concerns or the ability to return as needed to the service. Technology has been a boon in assisting people with disabilities, but for others living with disabilities it has posed additional barriers.
Over time, at least some or even most of these challenges may be overcome. But the people who have the most difficulty with the technology are likely to be the same people who have the most difficulty in accessing the legal system in the first place. The greater reliance there is on technology, particularly as the sole way of accessing the system, the more this group of users will be left behind. For them, the so-called “digital divide” will be even greater because of the lack of workable alternatives.
Until technology is accessible to all, it is vital that those using the technology to offer services, whether public or private providers, be cognizant that their technology may be failing potential users of their services. These draft guidelines encourage those offering technology-based services to think about how their objectives can be best achieved through ensuring the technology is inclusive. The guidelines address all stages of decisions about using technology, can be helpful to public and private actors and can be adapted to specific contexts. As the draft guidelines state,
The guiding spirit behind [these guidelines] is to promote the commitment by those providing legal and related services to a deliberate use of technology to advance access to justice, particularly for members of communities facing exclusion from the legal system and barriers in using technology. They reflect the fundamental value of equitable inclusion in the legal system, and the need to respond to differences that result in inequitable access.
Next steps? Following up with revising the guidelines, taking into account what we heard at the symposium, and undertaking outreach to ensure the guidelines respond to what providers and users of the technology actually need for the technology to be inclusive and effective in achieving the purposes for which it is implemented.
Patricia Hughes is the Founding Executive Director of the Law Commission of Ontario (2007-2015) and former Dean of Law at the University of Calgary: @phughes9112.