Justice clicks into the digital age

The Pokerstars case has a created a landmark in New Zealand judicial history - the first digital judgment in our courts. Until now all judgments have been print on paper. Judge David Harvey's judgment includes text, website links, images of web pages and videoclips recorded on a CD.

In his rationale for making a digital decision, Judge Harvey points out print on paper wasn't always the medium for judicial authority. Before print, judges articulated their reasons for their judgments from the bench. Print began to be used for court decisions around 1600. By 1765 it was a given. "The new technology had become accepted and case law in print was the norm."

Now we are well into the digital age, another technology is available and Judge Harvey is of the view it should be used. "The ultimate goal is to ensure that the articulation of reasons is clear and transparent. Where new technologies assist in this goal, they should be utilised."

He is not alone. Digital decisions have been used in United States courts for some time. A notable use was by Rhode Island District Court Judge William E Smith who presided over a case involving Microsoft's product activation technology - which used a "one-way cryptographic hashing algorithm". Difficult to explain at the best of times, but during the case evidence included a computer animation of how the algorithm worked and expert testimony explaining the animation. Judge Smith married the animation with the audio recording and made it part of his judgment.

Another example was the 2007 US Supreme Court case of Scott v Harris where the court held that a police officer had not violated the Fourth Amendment when he rammed a fleeing suspect's car from behind in a high speed car chase. The court wanted the video of the chase taken from the police car "to speak for itself" and so included a web link to it in its judgment.

The court also indicated it was housing the video on its web server for readers to access.

Judge Harvey's decision goes a step further by embedding the video - playable using Windows Media Player - inside an Adobe Acrobat PDF (portable document format) digital file. Click on the image of the video and it begins to play. But as a backup mechanism, Judge Harvey has also anticipated the use of his judgment in printed out text form by including links to YouTube, which a reader connected to the internet could click on to also view the videos.

The videos have been uploaded to the YouTube site as linking access only, and not available for public search.

The YouTube videos and the PDF document are both password protected.

While digital judgments like these may help in explaining the reasoning of judges, they also bring a few problems - such as "link rot"which is when website links decay over time and no longer provide access to the information cited.

Broken web links occur for a variety of reasons, such as when web servers are moved or companies providing web services go out of business.

There is also the question of copyright - judges can claim "fair use" exceptions to copyright of video or audio recordings placed before their courts as evidence. But conceivably, in some instances, video or audio files, such as music or movie clips, made available on the web from a court document could be used by others. In such cases some sort of digital rights management might be required to prevent illegal downloads.

Then there is the question of authenticity, because digital documents can so easily be changed. Judge Harvey has used password protection to keep his authentic, but others have used "digital watermarks" to maintain authenticity.