The Digital Decision Articulating Reasons for a Decision in the Digital Paradigm A Paper Presented to the Courts Technology

y Conference 2011 Long Beach California by Judge 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. 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:
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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 1

a) b)

Openness in the administration of justice; 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. 3. Upon a matter in issue in the proceedings; Upon which a decision is necessary to arrive at that order.3

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.

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 DOrta-ekenaike v Victoria Legal Aid [2005] HCA 12 paragraph 244 Kirby J 2

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

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

(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 1860s 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 McLuhans observation We shape our tools and thereafter our tools shape us Marshall McLuhan Understanding Media:The Extensions of Man (McGraw Hill, New York 1964) 3

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 Unilocks 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. 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
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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 7 8 Ibid. 9 550 US 372 (2007) 10 Ibid. 4

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 vehicles 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 Courts 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 jurys 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 Courts reasoning to the parties, the public, the lawyers, students and others who may use the opinion in the future. To the extent at the Courts reasoning relied upon its assessment of the police officers 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 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 Unilocks 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
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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. 5

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 Microsofts 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 Microsofts 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 Judges solution was to combine video animation with the digital audio recording of Professor Wallachs 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.

The Judge considered adopting the approach utilised by the Supreme Court in Scott v Harris of housing the movie permanently on the Courts computer server which would entail inserting a hyperlink into the opinion bringing the reader directly to the Courts 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;
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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 Courts 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 Holdem. 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 nongambling 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, 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
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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) 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 site 7

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. 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.

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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) 8

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.

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

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

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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 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 Courts website. The US Supreme Court did. Using the Additional Tools

15

As observed by Judge Smith. See above n. 7 p. 10 11

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 readers 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. (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
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. 12

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 OnLine,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 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
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http://jdo.justice.govt.nz/jdo/Introduction.jsp (last accessed 16 June 2010) http://www.austlii.edu.au/ (last accessed 16 June 2010) 20 http://www.nzlii.org/ (last accessed 16 June 2010) 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 decision 13

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 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.

22 23

Above n.12 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 14

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. 2. 3. 4. 5. 1. Preservation and dissemination in the Cloud; The problem of short lived media and software access; The problem of multiple codecs; The problem of authentication and verification; The problem of user access. 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 Amazons 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.

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

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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 1450s, 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 1990s 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 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
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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. 16

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.

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

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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. 17

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.

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
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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 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
26 27

For discussion about copyright implications see above. http://jdo.justice.govt.nz/jdo/Introduction.jsp (last accessed 29 November 2010) 28 http://www.nzlii.org (last accessed 29 November 2010) 29 http://www.sal.org.sg/default.aspx (last accessed 29 November 2010) 19

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. Where new technologies assist in this goal, they should be utilised in appropriate cases.30 Judge David Harvey
District Court Judge Auckland, New Zealand 23 June 18 October 2010 29 November 2010 August 2011

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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. 20