Shouting into the void

There are many developments at present which are overwhelming. I have accidentally found this week that reading about some of the madder Roman emperors helped give me perspective. Everything passes. 

But there are aspects of the law over which we could exercise some control now, and where we and the authorities do nothing. I take digitalisation of justice as an example, because the warnings are growing louder.

I participate in many debates, in Europe and the UK, about the digitalisation of law and procedure, and in particular the inclusion of AI in legal systems. I always ask the authorities pushing digitalisation: who owns the infrastructure we will use? The answer is, of course, always the same: private US companies. Yet it is unwise to rely so completely for part of our national welfare and security on digital and AI services provided from abroad. These services can at a moment’s notice be withdrawn.

I have written before about the withdrawal of Microsoft services from the chief prosecutor of the International Criminal Court, when he was sanctioned by the Trump government.

Last month, a Canadian and a Peruvian judge at the ICC spoke of the devastating consequences of their being sanctioned by the US in the same way. Credit cards (whether US issued or not), Amazon and Google accounts were cancelled. Simple tasks, from booking an Uber to reserving a flight or hotel room, became impossible. It was also impossible to know in advance whether bank transfers would be accepted. One of the judges’ daughters had her US visa and Google accounts cancelled, though she had nothing to do with the ICC. Spouses, parents and children of officials were caught in the consequences.

This is not the only example. Last month, it was reported that Elon Musk had decided to deny Russian forces access to his Starlink satellite-based internet service. This gave Ukrainian forces an advantage. That may cause those who support Ukraine to cheer. But in the past Starlink has been denied to the Ukrainians in respect of attacks in Crimea or outside Ukrainian borders. Technically and politically, the story is more complicated than these few sentences, but the conclusion is clear: that one man and one company in the US can heavily influence, and maybe decide, the outcome of a war far away between two nation states.

This month, it was the turn of the bitter dispute between Anthropic and the US Department of Defense to underline the story further. On this occasion, the victim happened to be an American AI company itself. Again the reality is more complex than a few sentences, but: Anthropic refused to allow its AI to be used for mass domestic surveillance or fully autonomous lethal weapons; the government declared Anthropic as a result to be a threat to national security; OpenAI jumped into the contract and signed up to what Anthropic had refused; and now Anthropic is suing the Department of Defense. A commentator called it ‘attempted corporate murder’ of Anthropic by the US government. In other words, it was reconfirmed that AI services will be weaponised by the US government. If you don’t do what the US government wants you to do, it will try to cut you off from civilisation.

Fortunately, at present, our justice system is in a hybrid state, where much is still undertaken in the old way. We are a slow adopter of digitalisation and AI. But the authorities – the Master of the Rolls and the Ministry of Justice - are whipping us to go ever faster, without a thought to securing us against the dangers inherent in the destination. 

For now, the withdrawal of digital services for our legal infrastructure would not be an utter disaster. We saw, however, from the recent cyber-hack of the Legal Aid Agency that the withdrawal of digital services – in that case for a completely different reason, arising out of criminality – can still cause chaos for months.

The obvious question is: when the day arrives that we lawyers are utterly dependent on digitalisation, including AI, and someone in the US decides, whether a president or a CEO, that they no longer want their proprietary products to support UK justice, what then? Will they be able just to turn off our justice system, like Elon Musk decides with Starlink?

It seems that no-one is preparing for this eventuality. Of course we have few, if any, options, because there is no safe European substitute available. It will take a long time for us to develop equivalent services to the ones provided by US companies, and our experience is that as soon as we do, they are in any case bought up by US companies.

I shout into the void: what are we doing to preserve our future justice system? And the void does not answer.

Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society