Judicial Independence and the Corporate ‘Custodians’ of Digital Tools: A Call to Scrutinize Reliance on Private Platforms as ‘Essential Infrastructure’

Abstract

Judicial Independence and the Corporate ‘Custodians of the Internet’ : A Call to Scrutinize Reliance on Private Platforms as ‘Essential Infrastructure’

- “In a lot of ways, Facebook is more like a government than a traditional company.”
Mark Zuckerberg

Digital technologies and their corollary misuse are briskly transforming communication generally and altering “how law is disseminated”. The eco-system in which courts operate has accordingly shifted, a transition abruptly intensified by the pandemic, as justice precipitously migrates to the ease of private platforms. This de facto “marriage of convenience” may best be characterized as an unstructured partnership, prematurely born out of immediate necessity. Unquestionably, the COVID-19 pandemic precipitated and spurred judicial digitization “on a scale and at a pace that our court system would never have contemplated just a few months ago”, visibly culminating in a number of Supreme Courts worldwide conducting proceedings on Zoom.

In effect, a ˘new normalˇ defined by a general dependence on “a few dominant internet intermediaries act[ing] as gatekeepers in the curation, distribution and monetization of information”, is ripe for rigorous scrutiny. For a great deal is at stake when intermediaries monetize litigants’ data, profiling and commercializing the public sphere˛ more generally. This is exponentially preoccupying, few would query, in the judicial context. For we posit that dependence of this ilk may disagree with traditional precepts of judicial independence, which uncompromisingly proscribe reliance on external control mechanisms outside the judiciary’s purview (or the appearance of such reliance).

Mindful of this gargantuan communications reallocation, the following submits that judicial independence must be re-examined in the context of platform-dependent modern communications in the digital realm. What previously struck most as incredulous let alone unfeasible is now commonplace in justice systems across jurisdictions. Whereas innovation tailored to palliate the disquieting backlog that has haunted courts and tribunals for years is best greeted with openness if not enthusiasm, recognizing the necessity of digitizing, this article endeavors to shed light on the perils to judicial independence inherent to unbridled dependence on foreign commercial platforms. Whereas these concerns seem largely obscured by both the urgency and convenience of hastily transitioning online during the persisting pandemic, the long-term impact of this partnership is ripe for sober scrutiny.

Indeed, underscoring the risk of compromising the foundational principle of judicial independence in the age of default platform infrastructure, the following calls for mechanisms tailored to ensure that intermediary partnerships are structured, framed by a mindful benchmarking exercise rather than anachronistically ad hoc.