Monday, 20 February 2012

Rethinking the Judiciary

Stephen Fry did a good interview recently in which he took British Judges to task for their ignorance of how Twitter worked, in the context of the case of Paul Chambers. Chambers, for those who arent aware, is likely to go to jail for the following tweet:
Crap! Robin Hood airport is closed. You've got a week and a bit to get your shit together otherwise I'm blowing the airport sky high!!
I'm not going to wax lyrical about how dumb it is to think this is a threat. Plenty of other people have done that. It's clearly not serious. Unless he followed it with a tweet that read "Where can I buy a lot of fertilizer?" or something similar, as that might show the vestages of intent. Anyway, Fry did this little piece (which can't be embedded easily because the BBC equally inept at technology), in which he lashed out at judges who simply don't understand, or even seek to understand technology, and yet are allowed to make law on that basis.

As a writer of angry blogs and tweets it worries me that my posts might be taken out of context and I could end up in serious legal difficulties. Its almost enough to make me stop sending anonymous emails to famous people threatening their safety. Almost. But not quite.

ZenPundit has a good post up about drones, one of my favourite topics at the moment. In it he asks:
Do I own any of the airspace above my property? If so, how high up? If not can somebody float camera-laden drones up to first and second story windows without breaking trespassing laws? How about following a person walking on their private property or in public by hovering uncomfortably nearby their personal space? Flying over privacy fences or at an angle to peer over them?
Well I don't know, but I'm getting thicker curtains if I ever find out Mr Safranski is ever in the country.

The issue is that we live in a world of startlingly fast change. Once upon a time a judge could sit in judgement over a society which would look much the same when he took office as when he left it (or died). The meant that the law, conceptually, was 'locked in' to some degree. Obviously new legislation caused change, but most of the time, what you got was what you got. The situation now is a bit different, to quote Dogbert from the Dilbert comic:
Information is gushing toward your brain like a firehose aimed at a teacup
This leads to a problem, because different teacups are not equal. A 50+ year old judge does not, and should not be expected to, have the same understanding of Twitter that I do. No matter what you do, they will not.

And what do judges do when confronted with something they don't understand? Well, it's certainly not recuse themselves from the case. Its a bit more like a peacock. Some judges seem to revel in not knowing what the heck is going on. Here is Judge Davies from Paul Chambers case:
Anyone in this country in the present climate of terrorist threats, especially at airports, could not be unaware of the possible consequences.
And thats the point. Paul Chambers is clearly not a terrorist. And he was clearly unaware of the 'possible consequences'. If he was, he wouldnt have tweeted about it. When I say I'm going to beat the crap out of my friend for cancelling on me at the last minute, he doesnt start taking self defence courses, mostly because he knows I'm joking, rather than contempt for my ability to carry out my threats.

So what's the solution? My suggestion is twofold.

First judges must, by law, be required to refuse to sit in judgement over a case which they are unable to understand. If a judge is found to have done so, that should be grounds for a mistrial and some form of professional disciplinary action. Simple as that. By law I'm not allowed to perform brain surgery, or build rockets, (and I've tried), and so judges should be prevented from deciding a person's future when they are woefully ill equipt to do so. This rule should apply with the same force and consquence of a conflict of interest. Because it is a conflict of interest to have no damn idea what you're talking about when considering someone else's life and future.

I'm not trying to sneer at judges on this, and I don't think it should apply only to issues of technology. If a case on biotech, or medicine, is being tried then the same rules should be applied. If a case comes forward which there is no reasonable expectation that any judge should understand it then there may be a need for an organisation which serves to provide briefings and ancilliary information, possibly panels of judges to balance out the decisions of individual judge whose brain is determined not to wrap around the topic.

Ultimately, judges should, as part of their day to day, be asking "Am I qualified to judge this person".

Secondly we need a team/department/organisation whose job is to look issues which will cause confusion and consternation and try to reach a general legal consensus before they come to trial. Sooner or later someone is going to take photos of a naked celebrity through their window using a microdrone. Fact. That's going to happen. So why not sit down and start to have a think about it now? Figure out if we have relevant laws, and if not, why not? Do we need something new to cover this area?

I see this as being an organisation which is very public facing. Including technologists, futurists, scientists and professors and doctors of various stripes, as well as a range of people from all levels of the legal system. How it would work in reality, I don't know, but in principle issues would be put forward, likely social impacts assessed, and a decision about the legal issues surrounding it made.

It's critical to have these discussions if we're going to have any common sense applied in the courtroom. It would also serve that if an issue comes to court where no common sense has been discussed, it could help judges by being a resource to brief them, and guide their thinking about an issue. It could give them access to experts, who could broaden their understanding of the issues, while remaining impartial about the case.

Because sooner or later, we're all going to threaten to blow up an airport.
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