70 Pages Posted: 19 Mar 2018 Last revised: 28 Mar 2019
Date Written: February 28, 2019
Legal disputes increasingly arise on digital grounds in relation to an array of subjects such as online enforcement of intellectual property, the First Amendment and online speech, and the right to privacy in personal data stored on digital devices. When courts are called upon to resolve disputes relating to cyberspace, many of the reliefs they grant are executed by digital means. The essence of digital remedies is their profound technological details, which can easily avoid judicial review. Like equitable remedies directed to the physical world, digital remedies are usually open-ended, affording their executors broad discretion to choose how to implement them. Nonetheless, contrary to the evident, real-world compliance of remedies directed to the physical world, the implementation of digital remedies is embedded in proprietary, inherently non-transparent technologies, which are designed and executed outside the courthouse, on private grounds. Furthermore, unlike remedies tailored to a static environment that mainly affect the specific parties to the legal dispute, digital remedies have a robust, dynamic and ongoing impact over various and numerous stakeholders. Their technical details might far surpass what the court defines, converting compliance from a technical matter of law enforcement into a substantial matter of law-making. Equitable remedies generally create greater difficulties for courts in ascertaining and ensuring compliance; digital remedies take these concerns to the next level, presenting serious challenges to the rule of law.
This paper argues that the issuance and execution of digital remedies challenge the ability of the court to fulfill its longstanding duty to exercise its adjudication power in accordance with rule of law, to competently prescribe remedies that are fit to redress the violation of rights, and to assure these remedies are enforced properly. Using the example of website-blocking injunctions, the paper demonstrates that the devil is the details of implementing digital remedies: these details play a crucial role in shaping the meaning of digital remedies, and consequently the definition of the rights they purport to vindicate. Overall, the paper recommends several mechanisms that courts can exploit in order to extend their oversight and retain more control over the critical implementation stage of digital remedies. Building on the system of equitable remedies, which includes, in addition to the remedy itself, equitable managerial devices that allow courts to manage the parties and ensure compliance, as well as special equitable restraints, the paper aims to empower judges who resolve cyber-related disputes with a broader and a more accurate understanding of the meaning of their digital solutions.
Keywords: remedies, equitable remedies, algorithms, courts, oversight, algorithmic decision making, privatization, content blocking, free speech, access to information
Suggested Citation: Suggested Citation