A backward glance at a digital future foretold — and in Silicon Valley’s north, an icon of ultra-Luddite resistance in the California legal system

Changing slowly or not at all: in law, unrivalled resistance to using computers and the internet as avenues to transparency and fairness

Above: ‘All that is electronic does not glitter,’ (pullout) survey article in The Economist, 1-7 March 1980

[ In this post spotlighting opposition to technological progress, one early comment about Russia’s invasion of Ukraine on 24 February deserves mention for whom it was addressed to; by whom; and from where — flagging up an unlikely embrace of the digital juggernaut. This was the ‘Makes sense to me’ reaction of Richard Moore, the head of Britain’s MI6 or Secret Intelligence Service, to a report predicting that Russia would ultimately fail in its war of annexation. Unthinkably, for an agency whose motto is Semper Occultus — Always Secret — he said that to his 130,000 followers on Twitter. An earlier entry on this site pointed to the equally unexpected display by military leaders — of the U.S. Navy — of an ability to stay on their toes not just technologically, but through wildly futuristic organisational experiments. Meanwhile — in an ever-larger and more powerful legal system — an institution with no obstacles whatsoever to keeping up with the times supplies a curious example of white-collar (and black-robed) ultra-Luddites pushing back against the future as hard as they can. ]

Anniversaries — chances for reflection and taking stock — are most childishly satisfying when they fall in a year ending in a zero. This one, a forty-year marker in 2020, did not seem worth mentioning at all in that first week of March, as ordinary life was shutting down in lockdowns everywhere. 

After five and a half weeks of collecting impressions of the progress of the digital revolution in 1979, flitting across the U.S. and Western Europe on an Economist expense account, the young and lamentably underripe scribbler-journalist was lucky enough to detect a pattern in the notes that soon required a small suitcase of their own. (Lucky by comparison with, say, PhD aspirants who have to abandon hope when they can find no thread of significance in the mountains of research they have amassed.) The discovery had to do with obstacles that had somehow been missed in thousands of justifiably overheated column-inches about the prospect of a wholesale transformation of the way we live and work, owing to the arrival of the miniature computer brain — something called a microprocessor. 

The ingenuity and persistence of Federico Faggin, an Italian scientist working at Intel, in California, had been disproportionately responsible for that breakthrough in 1971. Silicon, his memoir published last year — a book unlike any autobiography of a technology star — contains a sparkling, proud yet affectingly unpretentious account of what it had taken him to become capable of shrinking computers the size of hefty filing cabinets into tiny microchips that could fit inside and direct the laptops, tablets and smartphones that had yet to be dreamt up — and of his herculean labour to get the job done.

Other nimble minds like his foresaw a myriad immediate uses for microprocessors but few discerned the pattern that I did, or mentioned it publicly if they had — because finding one was simply the task I had been set by my editors. Two words summed it up. Resistance and obstruction. Above all, the opposition to change of institutions and industries established from fifty to hundreds of years earlier. This was the opening of my report, a twelve-page survey article — the kind in which The Economist allows its writers ‘more freedom than usual to express a somewhat individual point of view’ ** — slashed to half its original length by the brilliant, workaholic science editor, Richard Casement, who had wrestled with its bulk for days.

The following are among the unrealistic clichés being embedded in the public imagination: thanks to the domestic picturephone/electronic mail/personal computer terminal, computing will become a distant memory; schoolchildren will learn their lessons electronically at home; housewives will do their shopping at home, pressing buttons on their computer terminals, but will switch on their ovens from their cars; and many millions of factory workers will be put out of work. And all because of the ubiquitous electronic chip. 

Technology buffs say there are no technical reasons why all this should not happen in the next 10 years and no economic barriers either, because of the declining costs (down 28% a year) of the basic electronic components. But what is technically feasible today will not necessarily be implemented tomorrow. For one thing, people will resist many of the proposed changes, both as consumers and as workers. For another, all sorts of barriers to change exist within the industries that are supposed to be implementing this second industrial revolution. 

[…]

Three years ago, most of Europe seemed in blissful ignorance of the significance of the silicon chip. The Economist played its part in trying to change that. Today the pendulum has swung too far the other way.

So, this survey seeks to highlight restraints on the rate of chip-induced change that are generally being overlooked.

Without the pandemic, it could have taken far more than four decades for parts of 1980’s conceptions of the future to become our present, and for ‘virtual’ to seem thoroughly unremarkable, understood by everyone to mean ‘created by computer technology and appearing to exist but not existing in the physical world.’

This entry on post-Gutenberg.com is only a brief — glancing — commemoration, not an exhaustive comparison of what my survey got right and wrong about the revolution. Just these questions demand consideration, now, because of their implications for the next phase of the transformations: what would it have taken to prevent it? What degree of resistance, and by what means? Of course the answers would vary from one segment of human life to another. The crucial determinant seems to be — unsurprisingly — self-interest incompatible with change, and in certain circumstances, selfishness unbound.

All that is easily discernible in official reporting in 2019 about a remarkable computer or IT system on Golden Gate Avenue in San Francisco, at Silicon Valley’s northern limit, in the office of California’s Commission on Judicial Performance.  The CJP is charged with investigating complaints about misbehaving — insulting, abusive, raving — and corrupt or incompetent judges by lawyers and members of the public for a state so rich that, on its own, it would rank as the world’s fifth-largest economy after Germany and above Britain. At the time, the minute fraction of allegations against judges that the CJP does not instantly dismiss but accepts for further investigation were processed through this IT system. A report on the CJP’s execution of its charter, published three years ago by the California State Auditor, Elaine Howle — following a meticulous examination of its operations — uncovered these facts about it:

Its computer system shielded the CJP from receiving complaints from the public by any electronic means, except for faxes. Printed forms or grievances that arrived at the CJP by mail or fax had to be typed into the organisation’s case management computer system by a clerical worker.

The IT system was a 25 year-old digital antique when the Auditor’s report was issued, and was still the only means of using computers to file information and process cases. It was essentially unchanged since it had been designed and put in place around 1994 — before most people had personal computers or email accounts, and more than a decade before the invention of social media. 

In early 2016, the head of the CJP claimed that an online complaints system was under development — but there was no still evidence of anything of the kind three years later.

The host of the CJP website — the California Department of Technology — had offered to adapt the site to meet the public’s need for an electronic avenue for submissions, but the CJP either spurned or ignored this offer.

No one at the CJP understood how the prehistoric computerised case management system worked, or had any idea of how to maintain or repair it. The ‘IT specialist’ who built it had retired four years before the Auditor’s investigation, and he left no manual or written instructions demystifying its operation. 

Soon after that solitary computer expert’s departure in 2014, the CJP told the Auditor, it ‘stopped attempting to recruit for the position’ in that summer, ‘because of a lack of qualified, interested candidates.’

Only in April 2021, two years after the Auditor pressed for digitisation of complaints submissions, did the CJP begin to accept online reports about California judges.

Excerpt from the report of the California State Auditor on the Commission for Judicial Performance, 25 April 2019

Why did California’s judges risk being ridiculed about that system by anyone, let alone the supreme management-and-performance watchdog for state agencies? For the same reason why, in October 2016, the CJP sued the Auditor to try — unsuccessfully — to derail the audit, in what became a two-year battle in court. To evade public scrutiny and accountability. To do all it could to obstruct the creation of records of judges acting against the interests of California taxpayers — in a tradition that can be traced back at least as far as the British Raj in 18th-century India.

Two final bits of context about the CJP’s jewel of ultra-Luddism, its icon of resistance to the information age in a profession that runs on information — which should be impounded and displayed in Silicon Valley’s Computer History Museum in San Jose. Law is, after all, one of the wealthiest segments of the California economy — with a legal services market estimated at $54 billion, made up of 71,362 businesses in 2019, in a reckoning by IBIS World. ‘The expanding empire of law is one of the most significant phenomena of our time’ — as Jonathan Sumption, a former member of the U.K. Supreme Court, has pointed out in a special BBC Radio 4 series, the Reith Lectures. Reminding listeners of law’s ‘vast domain’ when he turned to the U.S., he added that ‘lawyers, as a body, form the most powerful, if not the only, counterpoint to the democratic element in the Constitution.’

Here is one conclusion about the digital revolution that could not have occurred to me in 1980. Power resists technological progress when new tools can expose its weaknesses; oblige it to account for lapses; and force it to accept punishment for them. Excessive power can take resistance to absurd, shameful extremes.

                                                     CHERYLL BARRON

7 March 2022

** The Pursuit of Reason, Ruth Dudley Edwards, 1993

for 25. 12. 2021

How strange to find that Christmas carols can also go out of fashion, though few musical traditions would seem to be hardier perennials. Good King Wenceslas, who ventured out into the deep, crisp and even snow lying round about, trailed by his frostbitten, quailing page boy, is nowhere to be found on Fifty Classic Christmas Carols sung by the choir of King’s College, Cambridge. Nor on three other carolling compact discs issued over the last twenty years, teetering on the edge of the desk beyond this screen.

Did the song about Wenceslas deserve to be the carol you almost loved best from about six, you wonder — after O Little Town of Bethlehem, which your mother struggled mightily to teach you to sing in tune? Or was your judgment warped by your father introducing you to it in his velvet-lined bass baritone? No, of course not. There was nothing wrong with your taste then, nor anything in your deep affection for it now, and the loathing of critics who — according to the Wikipedia — deride its lyrics as soppy doggerel or bash it for being faux-traditional is only understandable if they were forced to sing it too often when very young. Or because of an idiosyncratic train of association tying it to something as nasty as, say, gluey instant mashed potatoes or tinned, boiled carrots. 

All religions probably enthrone charity as a supreme virtue, but the root of this particular word for benevolence and alms is caritas or Christian love, in English etymology. Whether an icy trek with a gift of food for a hungry firewood forager by the actual, 10th-century Wenceslaus I, Duke of Bohemia, was real or imaginary, Good King Wenceslas glows with the heat of the spirit of Christmas.

Some of its detractors could be reacting against reminders of need and suffering. There is certainly no room for anything like that in a jingle-ho-ho-ho-bells! sort of celebration, the kind in which it is possible to sing about The Holly and the Ivy for year after year without paying any attention to that carol’s references to blood, sinners and bitter gall, or listening past the lilting, up-tempo refrain of The Infant King — ‘Sing lullaby!’ — to mentions of grief to come, with weeping, nails and the cross. (Not just an observation but a confession.)

… Brightly shone the moon that night

Though the frost was cruel

When a poor man came in sight

Gathering winter fu-uuu-el …

Perhaps it was a gibbous, waxing moon, well on its way to turning perfectly round. Perhaps someone in a Bohemia in a parallel world was surprised to discover that a cactus in a dusty corner that unaccountably survived months of absent-minded, occasional watering, had come into bloom in its season — as it had not always done, in the past. Perhaps a quail perched on a bush bent low under wet, heavy snow entered into a staring contest with a woman at a window, which delighted them both.

Amid the difficulties of the pan-misery and much else, the joy comes stealing in and is unstoppable.

H A P P Y … C H R I S T M A S