The Digital Decision – Articulating Reasons for a Decision in the Digital

Paradigm

A Paper Presented to the Courts Technology Conference 2011Long Beach California

byJudge David Harvey

A Judge of the District Court of New Zealand

____________________________________________________________________

This paper and the presentation which accompanies it are divided into four parts. The

first part examines the purpose and rationale for delivering a judicial decision in

digital format with accompanying multimedia embedded into it. The second part

examines some of the technical issues involved in creating a the digital decision. The

third part considers some of the legal implications that arise from a multimedia digital

decision. The approach that I have adopted is generalist in nature and considers

implications that may be shared by common law countries. The final part deals with

some of the technical implications of the digital decision and the preservation of

multimedia decisions in a dynamic environment.

I should add that this paper has been a “work in progress” for over a year. It is

conceded that this cannot be the final word on the subject and it is hoped it will

stimulate a continuing and developing conversation on the general topic and some of

the issues raised in this paper

1. The Purpose of and Rationale for a Digital Decision

a. Reasons for Decisions in Common Law Jurisdictions.

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Modern judicial theory requires that an adjudicator give reasons for why it is that a

particular decision has been reached.1 There are three main reasons why the

provision of reasons by Judges is necessary:

a) Openness in the administration of justice;

b) Failure to do so means that the lawfulness of what is done cannot be

assessed by a Court exercising supervisory jurisdiction;

c) They provide a discipline for the Judge which is the best protection

against wrong or arbitrary decisions and the inconsistent delivery of

justice.2

Judicial analysis requires the isolation of a principle of law and its applicability to a

certain set of found facts. Any person (including an appeal court) reading a judgment

should be able to clearly ascertain WHY it was that a Judge came to a particular

decision or WHY a judge made a finding of fact.

Thus it is fundamental to the ascertainment of a binding rule of a judicial decision that

it should be derived from:

1. The reasons of the Judge(s) arriving at the order disposing of the

proceedings;

2. Upon a matter in issue in the proceedings;

3. Upon which a decision is necessary to arrive at that order.3

1 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546. Historically this has not always been the case.

"And in troth if Judges should set down the reasons and causes of their Judgments within every record, that immense labor should withdraw them from the very necessary services of the commonweath, and their Records should grow to be elephantini libri of infinite length and in time opinion lose somewhat of their present authority and reverence....But mine advice is that whensoever a man is forced to yeeld a reason for his opinion or judgment, that then he set downe all authorities, presidents, reasons, arguments and inferences whatsoever, that may be probably applied to the case in question" Sir Edward Coke Le tierce part des reportes del Edward Coke Adam Islip, London 1602“I cannot but with admiration reverence the grave judgment of the sages of the common law of England who have been abstinent in publishing their meditations and arguments in their professions….it being assuredly no matter of necessity to publish the reasons or the judgment of the law.” William Hudson A Treatise of the Court of Star Chamber Taken from Collecteana Juridica William Dugdale (ed) E & R Brooke London 1742

2 Lewis v Wilson & Horton Ltd [2003] NZLR 546.3 D’Orta-ekenaike v Victoria Legal Aid [2005] HCA 12 paragraph 244 Kirby J

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The form of expression of reasons is in a written representation, sometimes articulated

from the Bench and collected in reports for future reference and for any precedential

value that may attach to the decision. The reasons for decisions and the factual matrix

underlying the issue are expressed in print and in text. The usual medium is paper

based although Court decisions are now available on line. On-line decisions mirror

the text-based paper-based context of Court decisions.

b) Recording Decisions in the Print Paradigm

The printed law reports are still seen as a primary authority although, as has been

observed, case law is also accessible through various databases which may be

accessed through the Internet. The volume of cases, and therefore the identification of

a wider variety of fact scenarios, has increased dramatically.

Yet the basic reasoning process remains. Irrespective of the means of access to court

decisions, the value in such decisions is in the process by which the Court found

certain facts and applied an identified legal principle to them.

We take printed case law for granted. It was not always so. Edmund Plowden was

motivated more by reputation than altruism when he printed his Commentaries in

1571. Edward Coke was initially hesitant about printing his Reports in 1600 but his

enthusiasm increased over the years. By the time of the decision in Entick v

Carrington,4 printed law was a given. The new technology had become accepted and

case law in print was the norm.5 Thus the expression of cases in text, while utilizing

the properties of print such as standardization, dissemination and volume, was limited

by the other properties that were inherent in the print based technology – essentially a

two dimensional text based system utilizing a particular medium – paper. It is for this

reason that the judicial reasoning process has been a text based representation of what

might otherwise have been articulated from the Bench. The reasoning process is

constricted by the ability to use language to articulate the outcome.6

4 (1765) 19 Howell's State Trials 1030 per Lord Camden “If it is law, it will be found in our books. If it is not to be found there, it is not law.”5 It was not until the 1860’s that an official publication of law reports in England was approved.6 It could be said that print technology has dictated the way in which decisions are rendered and presented – an example of McLuhan’s observation “We shape our tools and thereafter our tools shape us” Marshall McLuhan Understanding Media:The Extensions of Man (McGraw Hill, New York 1964)

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In the same way that print enabled the widespread dissemination of large numbers of

volumes of standard text law reports – all of which had been impossible in the

manuscript paradigm – the digital paradigm allows for similar text based information

with greater ease of access and in larger quantities and also has inherent within it

additional properties that are available for the expression that underlies the judicial

decision.

c) Recording Decisions in the Digital Paradigm

One of these properties is the ability to incorporate material in addition to text in a

digital “document” such as illustrations or “multi-media” such as audio or video. This

means that a digital “document” is not constrained by a fixed hard copy medium and

the two dimensional restrictions of print. Its digital properties enhance the ability to

use additional tools to communicate or articulate the reasons for a decision.

Uniloc USA Inc v Microsoft Corporation7

Illustrations, diagrams, flowcharts and plans have frequently appeared in judicial

decisions. Illustrations and plans are particularly useful for identifying a problem or

resolving it particularly in copyright, trademark or patent cases. It was within the

context of an intellectual property case – Uniloc USA Inc v Microsoft Corporation8 -

that an animated sequence was embodied in a digital version of decision to articulate

and demonstrate certain fundamental principles at issue in the case.

The Uniloc case was about whether or not Microsoft had infringed Unilock’s software

patent for a product activation system that Microsoft used for its Windows XP

software. Underlying the case was an issue involving the description and explanation

of how algorithms within the software worked. Judge Smith incorporated into his

decision an animation with a voiceover by the expert witness who presented the

animation to explain the algorithm.

7 640 F.Supp. 2d 150 (D.R.I 2009). Judge Smith has written on the reasons why he embarked upon the process of embedding an animation with voice-over in his decision and some of the issues that he confronted. See Judge William E. Smith “Judicial Opinions and the Digital Revolution” (2010) 49 ABA Judges Jnl 78 Ibid.

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Scott v Harris9

This, however, was not the first time that audio or visual technologies had been used

to enhance the explanatory power of judicial opinions. In the case of Scott v Harris10

the United States Supreme Court used a video exhibit reference to emphasise a critical

point. The Court held that a police officer had not violated the Fourth Amendment

when he rammed a fleeing suspect car from behind in a high speed auto chase.

Justice Scalia, writing for the majority, stated that the Court preferred to allow the

video tape to speak for itself and then inserted a link which, when clicked, is supposed

to lead the reader to the actual video with audio of the car chase in question recorded

by the police vehicle’s dashboard mounted camera. The Court indicated that it was

hosting the video on its web server for readers to access and it was the first time that

the United States Supreme Court and indeed perhaps any federal court in the United

States – had actually linked to an audio visual trial exhibit to support its holding.11

There was an immediate response to the Supreme Court’s actions. Criticism

addressed the software platform chosen to display the video. It was suggested that the

opinion was disruptive to fundamental principles of American law because the

majority of the US Supreme Court had interpreted the events in the video, thereby

usurping the jury’s fact finding role. The decision fired a debate about whether

viewer subjectivity undermined the value of video evidence.

It must be remembered that the function of every judicial decision is to explain the

Court’s reasoning to the parties, the public, the lawyers, students and others who may

use the opinion in the future. To the extent at the Court’s reasoning relied upon its

assessment of the police officer’s conduct, the video tape effectively speaks for itself

and was in recognition by the US Supreme Court of the explanatory power of visual

and audio evidence.

Back to Uniloc

9 550 US 372 (2007)10 Ibid.11 http://www.youtube.com/watch?v=qrVKSgRZ2GY . The address provided by the Supreme Court – http://www.supremecourtus.gov/opinions/video/scott_v_harris.rmvb is unavailable - an example of link rot which will be discussed below.

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The Uniloc decision was the outcome of a case that lasted for six years. In 2009 the

case was sent to a jury who found that Microsoft had infringed on Unilock’s patent

and gave a verdict for Uniloc in the sum of $388,000,000. Microsoft moved for

judgment as a matter of law and for a new trial on a number of issues the most

complex of which involved the technology utilised by its product activation known as

a one-way cryptographic hashing algorithm. The jury had concluded that the hashing

algorithm used by Microsoft, known as MD5, was a “summation algorithm” or its

equivalent. Judge Smith in granting Microsoft’s motion for judgment as a matter of

law concluded that a reasonable jury could not have reached the conclusion that the

MD5 was a summation algorithm or its equivalent based on the evidence based on the

evidence presented at trial. Although the decision was the subject of appeal, I wish to

focus upon the use by the Judge of embedded material in his decision. The Judge

considered that written words seemed wholly inadequate. Usually a Judge facing this

type of situation would then rely upon the testimony of an expert contained in the trial

transcript which usually would be more than adequate to describe what the witness

had to say. However during the trial the parties had introduced a number of visual

displays as exhibits and demonstrative aids without which much of the transcript

would have been indecipherable on various technical subjects.

One of the exhibits was a computer animation of how MD5 worked produced by

Microsoft’s expert witness Professor Wallach who was a computer scientist from Rice

University. The Judge concluded that the use of that animation would be the best way

to explain the issue but the animation alone was simply a movie of moving letters and

numbers that made no sense without the witness’ explanatory testimony given at trial

while the images played.

The Judge’s solution was to combine video animation with the digital audio recording

of Professor Wallach’s testimony. Neither the video animation nor the testimony was

subject to objection at trial so there was no dispute as to the accuracy of the witness’

description of how the algorithm worked. The Judge employed the assistance of IT

staff at his court to “marry” the animation and the digital audio recording of the

testimony into a 12 minute long embedded video in the decision.

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The Judge considered adopting the approach utilised by the Supreme Court in Scott v

Harris of housing the movie permanently on the Court’s computer server which

would entail inserting a hyperlink into the opinion bringing the reader directly to the

Court’s server and to the movie. There were certain problems associated with this:

1. The reader had to be connected to the internet to view the movie – an

additional layer of difficulty;

2. How to embed the movie inside the opinion so that the movie was fully

integrated with the written text. It was decided this could be accomplished in

the best format from embedding the movie was to use the program known

Adobe Acrobat Flashplayer. This was feasible because all the documents were

uploaded into the Court’s system in PDF format.

This leads me to consider some of the technical aspects of “creating” the digital

decision. It is probably appropriate that I should preface these remarks with some

background to the case that I heard where I considered that the use of video content

embedded in the decision would help to clarify the reasoning process.12

In New Zealand it is unlawful to promote overseas gambling and therefore it is

unlawful to advertise overseas gambling websites. A television channel ran a series of

programmes called “Celebrity Joker Poker”. There was nothing objectionable about

this, and the programme had entertainment value. However, an online gambling

company ran certain advertisements during the course of the program. These

advertisements promoted a website that enabled participants to log in and use “play

money” to learn how to play poker and in particular the variation of the game known

as Texas Hold’em. This website had an address www.pokerstars.net. The Company

also ran a proper gambling website where one could play for money at

www.pokerstars.com. The prosecution theory of the case was that the two sites were

almost identical and although the advertisements purported to be for a “non-

gambling” site, when one considered the nature and content of the advertisements,

they were in reality designed to encourage viewers to the gambling site and were

therefore really advertisements for overseas gambling sites. Expert evidence was

given which analyzed the advertisements and the way in which music, visual images,

12 The case was Dept of Internal Affairs v TV Works Ltd (Unreported, District Court, Auckland CR 08004505568-620; 23 June 2010 David J Harvey DCJ)

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filming techniques and the like were used to support the prosecution theory of the

case.13 Thus an assessment of the advertisements was critical to the outcome of the

case. The illustrations that I use in this paper, the techniques described and the content

that I use in the accompanying presentation were from the case that I heard

2. Embedding Video – Technical Aspects

Let us assume that you have heard a case where you have decided that it is necessary

to embed a video link. One of the first problems is to decide upon a format, of which

there are many, and concerning which I shall have more to say later. Most

jurisdictions release decisions in PDF format so I shall concentrate on how one can

embed video in a document and then convert it to PDF.14

The best way of approaching this is to use formats that convert easily from one

application into the final product in PDF. The tools that I use are Word and a full

version of Adobe Acrobat X. I have had the video material presented to me in .avi

format.

I can embed the video into a Word document and then convert the Word document

into PDF. On occasion this may be problematical depending upon the settings and

security that your administrator may have applied to Word. Assuming no security

settings the steps to embed the .avi file are quite straightforward.

1. Open the Word Document

2. Select the placement for the video clip in the decision

3. Go to Insert/Object/Video

4. Identify the video and click through so that it is embedded

5. Convert the document to PDF which will carry the embedded video through.

13 It was also advanced that the URLs for the websites were almost identical but no evidence was led to suggest that a surfer would make three mistakes in transposing the suffix .net to .com or that the use of “pokerstars” was a ploy to lead users to the gambling site rather than the play for free site14 Judge Smith raised concerns about format – see above n.7 at page 11 where Judge Smith notes “A second challenge involves the format used to construct multimedia opinions. In Uniloc v Microsoft we used PDF with Flashplayer, by Adobe; this software is fairly common, but it may not be the format the federal courts and the public use for multimedia in PDF documents in the future. For example, the National Archives and Record Administration (NARA) recommends that executive branch agencies use a file format known as PDF/A-1 in conjunction with records management and quality assurance policies. PDF/A-1 is a format that does not support Flash Player. NARA believes this will ensure the quality, integrity. And authenticity of information maintained as PDF.” (Footnotes omitted)

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Another way of embedding the video is to use the Embed Flash tool that is an add-in

to Word when you install Acrobat. The problem here is that a decision must be made

to convert the native format .avi file into Flash. There are two problems arising:

a) Interference with the integrity of the exhibit.

b) Having access to the tools that will undertake the conversion process.

The integrity of the exhibit is maintained if the exhibit is still available on the Court

record in .avi format, and assuming that there is integrity of content, integrity of

format should be of little concern.

I use a program named AVS Video to Flash to convert the .avi file to .flv

Having completed the conversion I open my decision in Word and then embed the

Flash Video.

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Now that the video is embedded in the Word document the process then moves to the

conversion to PDF.

This is can be done from Word if you are using Acrobat which will have added in a

tab that allows you to create your document as a PDF

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The document is converted. It is also possible to give the PDF further properties that

prevent the cutting and pasting of text and the like.

I immediately acknowledge that embarking upon this exercise is not something that

will appeal to most judges. However, it should provide a guide and may be of

assistance if a Judge wishes to avail him or herself of the assistance of a Court IT

person to attend to the technical aspects of embedding video.

As digital technologies become more and more pervasive testimony utilising such

technologies for the purposes of illustration or demonstration will become more and

more common, particularly in the field of expert testimony.15 Digital audio recording

is already used to preserve oral testimony and the marrying of digital audio and digital

visual material is not difficult. At the same time Judges become more comfortable

with the utilisation of digital visual, audio and graphical tools for displaying complex

information new challenges will arise.

These challenges can be divided into two major categories. The first are the legal

issues that need to be addressed where a “digital” decision is released rather than or

together with a hard copy one and the second involves technological challenges

involving the presentation, authentication and access to digital decisions.

3. Legal Implications

The Reliability of the Digital Decision

When faced with both the digital version and a hard copy version of a decision, which

version should be considered the most authoritative? Expressed in that way the

answer is clear that the digital decision should prevail because it contains all of the

material including the illustrative or multimedia content that was necessary to explain

15 As observed by Judge Smith. See above n. 7 p. 10

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the outcome. In that respect the print version standing alone is less than complete.

However, a similar type of “completeness” can be achieved if the print version

contains a reference by which the reader can access the illustrative multimedia

material that is unable to be contained in the static medium of print. Thus there must

be some facility whereby the illustrative or multimedia content is available on a server

which can be easily accessed. Judge Smith did not address this problem, although the

decision is available in digital format from his Court’s website. The US Supreme

Court did.

Using the Additional Tools

Just because the tools are available does not necessarily mean that they MUST be

used. Only when it is necessary to explain or demonstrate a matter, usually of

evidence, should digital tools be utilized in a judicial decision. An example may be

that an expert witness has used a video clip from You Tube. The video clip enhances

or perhaps clarifies a verbal description. Because this is part of the evidence that may

be essential to a finding of fact, a hypertext link to that clip should be made available.

The digital document, however, allows that video clip to be incorporated into the

decision, making it immediately available to the reader.16 The reader’s ability to

comprehend the fact finding or judicial reasoning process is immediately enhanced

and the adjudicator is able to clearly demonstrate, by means in addition to text based

or oral articulation, an important element necessary to arriving at a conclusion.

The Copyright Problem

The use of internet based materials in judicial decisions may give rise intellectual

property issues.17 If material is used in a judicial decision in New Zealand there is no

infringement pursuant to the provisions of s.59 of the Copyright Act 1994 (NZ) which

states:

Parliamentary and judicial proceedings(1) Copyright is not infringed by anything done for the purposes of parliamentary or judicial proceedings.

16 The only constraint is that the reader must have a device capable of allowing the digital document to be “read”17 Archiving web pages on Court servers would probably fall within the fair use provisions of the US copyright legislation because of the non-commercial element associated with its use.

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(2) Copyright is not infringed by anything done for the purposes of reporting parliamentary or judicial proceedings.

Absent s. 59 my approach to the problem would be that if copyright material is

introduced as evidence, a consideration of the material and the use thereof is

necessary for the resolution of the case in question. In my view for “fair use” purposes

its presence in a decision would not constitute an infringement. Surely it must be a

fair use if the material was necessary or helpful in the resolution of a case.

Is the position different if the Judge uses illustrative material that was not introduced

in evidence but nevertheless constitutes material of which judicial notice may be

taken – for example where geographical location needs to be pinpointed the use of

Google Maps to illustrate the location may be of assistance? Under normal

circumstances, Judges should not carry out their own factual researches, but in a

situation where judicial notice may resolve that issue, once again I suggest that there

would be no infringement given that, as suggested above, the material was not being

used for a commercial purpose and would fall within the ambit of fair use.

The Authoritative Digital Document.

How authoritative is the Digital Decision? Should there be two versions – a digital

version and a “print” version? The answer to the second question is that we are

already there. Decisions are available in digital format from Judicial Decisions On-

Line,18 Austlii,19 NZLii20 or any number of other databases as well as LexisNexis and

WestLaw. Judicial Decisions Online in New Zealand makes it clear that the “file

copy” of the decision should be treated as authoritative.

The essence of authoritativeness or reliability lies in whether or not the two decisions

are textually identical. If material is available on the Internet – say on You Tube – a

link should be provided in BOTH the “print” and digital versions of the decision. The

only difference between the two may be that the digital decision may have the video

or illustration embedded within it. In the event that “link rot” renders “linked to”

material unavailable, the digital version preserves the integrity of the decision. The

18 http://jdo.justice.govt.nz/jdo/Introduction.jsp (last accessed 16 June 2010)19 http://www.austlii.edu.au/ (last accessed 16 June 2010)20 http://www.nzlii.org/ (last accessed 16 June 2010)

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print version (which should be printed from the digital document) will indicate where

content has been embedded in the digital document.

The digital decision must contain identical text. It should include YouTube links if

YouTube is used to store the material.21 But the digital decision will also contain the

embedded video so that a reader will not need to be connected to the internet to access

the content on YouTube. The TEXT of the decision will be identical to the text copy.

The multimedia content will be available either as a link or embedded. Thus, the

reasoning process will be clear from the text together with the additional content. The

only thing is that the multimedia will not "play" if one prints out the decision. So in

reality the distinction between the text version and the digital version from a practical

perspective, is a distinction without a difference because the reasoning process behind

either decision will be transparent. However, what will be absent from the print

version will be the immediate or seamless availability of the multimedia element that

comprises part of the reasoning – usually it will address a factual element, although,

as was the case in Dept of Internal Affairs v TV Works Ltd22, the case turned upon the

interpretation of the advertisement.23

Articulation or Visualisation?

In Scott v Harris the United States Supreme Court indicated that the video should

speak for itself. Effectively the Court considered that it was not required to articulate

what had taken place in the video or the facts that it displayed. The articulation or

description of what takes place in a visual presentation may achieve quite a different

result for the reader than actually watching the visual material. However it should be

observed that the written word provides a layer of abstraction or distance from any

emotive response that may unconsciously arise from viewing the visual material.

People are responsive to visual and emotional stimulation often subconsciously and

without any realisable justification. Thus articulation may enhance objectivity

whereas the visual material itself may have a subjective impact. However, articulation 21 It is relatively simple to post material to YouTube and ensure that it is not accessible for general search. Some of the YouTube material can be defined as accessible by link only thus ensuring that one may have the link provided in the judgment to access the material. This functionality may be subject to “link rot” – see above. The digital version retains the integrity of the decision22 Above n.1223 Although articulation went part of the way in addressing interpretative aspects of the decision, the full impact of the advertisement needed to be considered to determine whether or not it fell within the prosecution theory of the case

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may be aided by the additional audio-visual material, especially when subtle issues of

interpretation of audio-visual material is at stake.

This perhaps demonstrates the care that must be undertaken in determining whether or

not visual or audio material should be used in a “digital” decision. It may well be that

the utilisation of visual material which provokes an emotive response is necessary to

fully demonstrate how sound, visual material, visual cues and the like can have

precisely the effect that would be lost in the articulation or description of the material

in text format.

4. Technical Issues

There are possibly five technical issues which arise in the judicial decision from the

digital decision and which may have an impact upon it. They may be summarised as

follows:

1. Preservation and dissemination in the Cloud;

2. The problem of short lived media and software access;

3. The problem of multiple codecs;

4. The problem of authentication and verification;

5. The problem of user access.

1. Preservation and dissemination in the Cloud

Making digital data independent of media means keeping it in the

Cloud. The key advantage is that the responsibility for high

availability and routine processes like backup, replication disaster

recovery and so on can be delegated to competent professionals. One

available commercial service is Amazon’s S3 simple storage which

works out at approximately ten US cents per month, is very secure and

reliable and has high availability.

This could well answer the problems that have been raised with short

lived media and with software access and answer issues of

permanence, availability and access.

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It is acknowledged that the Cloud poses certain challenges which need

to be addressed if it is to be a repository for judicial decisions. One

issue is that of control. Does the court issuing the decision have control

over the content or is that shared with the Cloud administrators? Where

are the Cloud servers located? Are they in domicile of the Court - State

or national. And, associated with that issue, who has jurisdiction should

the location of the Cloud servers be beyond the jurisdiction of the

Court issuing the decision. Some, if not all of these issues can be

resolved by contractual arrangements with a Cloud provider.24

The issue of authentication and verification will be dealt with under

“4” below.

2. Short Lived Media and Hardware and Software Availability

It is axiomatic that everything is corruptible given enough time.

Original manuscript material has demonstrated a remarkable resilience

– see for example the Dead Sea scrolls and parchment based records

along with manuscript books and, since the 1450’s, printed material.

Yet even paper and parchment will deteriorate and decay and it is for

this reason that special environments are required for the preservation

and retention of old printed and written materials. Similarly electronic

storage systems are prone to deterioration. It is suggested that the

lifespan of the average CD is only 30 years.

In addition the pace of change has meant that much digital data that

was accumulated say in the 1990’s may now be inaccessible because

modern software is unable to read it or interpret it. Either legacy

systems must be constantly available for reading old material or it must

in some way be converted and kept up to date. Transparency and

documentation of formats is essential and open source standards may

24 Although there may be a continuing issue of Cloud providers find it convenient to “shift” data between providers. To a Cloud provider, data is data and content is irrelevant.

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often avoid such problems which may be associated with copyright or

patent encumbered formats and methods. However even a basic text

document needs to be stored in a format such as the open document

standard rather than PDF, Microsoft Office or similar proprietary ones.

The same is true for multimedia file types such as presentations.

A solution to the short lived media problem is suggested in locating

information in the Cloud. However, unlike print based material the

digital medium provides a unique opportunity to carry out copying and

updating processes without the risk of introducing transcription errors.

3. Multiple Codecs

Video and audio formats present certain problems. Not in the least of

these is the large number of formats and codecs or software which are

available. This can be considered a format issue. In addition, there are

a number of patent issues which have an impact upon the translation

and reproduction of video material. Although it is possible to

transform one format into another so that say a media player format

may be transformed into a .avi format there are frequently patent

software and copyright issues which accompany such an activity.

It may well be that legal codec and document formats should be settled

upon and standardised.25 These formats should ideally be open

standards so that no provider could have leverage, whether intentional

or unintentional, over the standards. It would be ideal if the formats

could sit within an established international forum or organisation such

as ISO and be recognised and applied by other governments and that

some provision be made for legacy support in future codec and

document and standards.

25 It will be necessary to ensure that the “document format” is compatible with the multimedia format to be used. For example the PDF/A-1 format does not allow the incorporation of Flash elements. Thus, the decision about the “document format” may have to resolved on the basis of compatibility with other multimedia formats that may be embedded in the dicision.

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4. Authentication and Verification

If material is to be located in the Cloud it will be necessary for a

verified authentic copy to be available. The authentication of copies of

data is not a difficult problem to solve. For example if a decision is

contained on a CD ROM stored in a vault which is regarded as the

authoritative original it is easy to compare it with a copy such as one in

the Cloud to ensure a certified true copy. The comparison process can

and should be automated and done regularly and could be

supplemented by a similar procedure performed on a duplicate offsite

backup CD ROM or other media. An important function of regular

comparison to ensure an authenticity is to anticipate obsolete or

unreliable media formats, devices and platforms and then migrate to

newer ones in sufficient time to avoid problematic dependence upon

old ones.

Details of the comparison and authentication process need to be

transparent and documented and associated software needs to be

developed to include built in test cases in order to avoid dependence

for example, upon obsolete or proprietary computer architectures or

even languages. The outcome in such a comparison must clearly state

which copy or copies may be regarded as the masters or the

authoritative copies at least until the next round.

Comparisons can be easily and quickly done based on well known

cryptographic concepts like message digests which are

cryptographically secure check sums that guard against deliberate

forgeries as well as more innocent errors. The major advantage of

using message digests as a basis for determining authenticity – again

bearing in mind the need to express the algorithms in a time resistant

form – is that they are essentially self contained. This is in contrast to

more elaborate methods such as digital signatures which are dependent

upon the existence of availability and reliability of some associated

public key infrastructure.

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Following any regular duplication or comparison action it is advisable

to clearly document its basis, any exceptional actions or

recommendations and a clear statement as to which copy or copies are

to be regarded as authoritative until the next iteration.

In this respect access to all classifications, including open, should be

managed by a workflow system to facilitate auditing. A cryptographic

system employ should be tied into the identity management system to

facilitate workflow which should also issue digital fingerprints to all

content to facilitate auditing beyond the borders of the system.

Embedded content should be subject to the same cryptographic

systems.

Given that a major concern is for longevity of the decision the need

exists for retrospectively testing random samples whenever a codec or

document update is released in which should form part of rigid change

management system.

5. User Access

The issues of access, auditing, respect for intellectual property

considerations26, commercial confidentiality and the monitoring of

judicial decisions to ensure authenticity and longevity demand a

centralised body to manage and provide access for the system.

Although at the moment the Ministry of Justice in New Zealand hosts

Judicial Decisions Online27 access to decisions may be obtained

through a number of other portals including the Courts of New Zealand

website and the New Zealand Legal Information Institute. I exclude

from this consideration commercial organisations and publishers such

as LexisNexis and Thompsons\Westlaw who address issues such as

26 For discussion about copyright implications see above.27 http://jdo.justice.govt.nz/jdo/Introduction.jsp (last accessed 29 November 2010)

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longevity, authentication and content management as part of their

business model.

Given the separation of powers the Executive should not be involved in

the management and dissemination of judicial decisions and preferably

this should be handled by an independent organisation that is properly

funded. A legal information institute such as the New Zealand Legal

Information Institute28 or a properly funded Council of Law Reporting

provide two possible examples. The Singapore Academy of Law,29

which is jointly run by the judiciary and legal profession, is responsible

for the digital and hard copy publication of all Singaporean legal

material with the exception of the University Law Journals.

If data is to be maintained in the Cloud there should be a single portal

access to that material. The Amazon S3 Storage Service provides

documented and published means for other software to access and

interact with it which means that the centralised gateway in addition to

providing desired gatekeeping functions could also allow a transparent

way for a user to click on a link and automatically receive the

download of the desired document.

The Amazon S3 repository or other similar service can act as an offsite

indefinitely expandable resilient and secure place to store digital

decisions and would become in effect a special purpose of archive of

judgments. It may well be that other legal publications will seek to be

located at such a facility in the fullness of time.

Conclusion

Decision makers should not feel constrained in their uses of new communications

technology for expressing their decisions. In some respects new technologies give

Adjudicators greater control over the content of the decisions, allowing them to make

choices about the extent to which content-rich digital decisions should be issued. The

ultimate goal is to ensure that the articulation of reasons is clear and transparent.

28 http://www.nzlii.org (last accessed 29 November 2010)29 http://www.sal.org.sg/default.aspx (last accessed 29 November 2010)

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Where new technologies assist in this goal, they should be utilised in appropriate

cases.30

Judge David HarveyDistrict Court JudgeAuckland, New Zealand23 June – 18 October 2010 – 29 November 2010 – August 2011

30 I wish to acknowledge the invaluable assistance of Bill Raike, Dale Monk, Simon Burson, Gabriel Akindeju and Lech Janczewski and other members of the Information Security Forum at a meeting of which some of the ideas in this paper were presented and subsequently discussed.

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