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

If Silicon Valley knew any history, would it be encouraging the destruction of artistic copyright — as energetically as it fights infringements of technology patents?

‘Venus and Cupid,’ Cranach the Elder, 1509

German artists of the Renaissance, inspired by Italy, took off in other directions: ‘Venus and Cupid,’ Cranach the Elder, 1509

There is something wonderfully right about a son of Italy, Federico Faggin, being the designer of the ur-ancestor of the miniature electronic brains at the core of our computers, tablets, and every other intelligent device in our nearly all-digital, all-wired existence.

Italy was the first place in Europe to experience the damburst of transformative creativity we call the Renaissance. The worship of invention and innovation that defines Silicon Valley is easily traced across six centuries to Veneto, the region in which Federico, the architect of the first commercial microprocessor, was born in 1941– with today’s date on his birth certificate. Vicenza, the town on that document, is famous as the home and chief showplace of the work of Andrea Palladio, the most influential architect of the Renaissance and, experts say, Western architectural tradition. We have been amused to discover, in looking up his lifespan, that yesterday was Palladio’s birthday – in 1508.

None of these are connections we have ever heard anyone in Silicon Valley make – even if Federico is mentioned in the Wikipedia entry for Vicenza. Why, you might ask, do they need making? Why should geniuses frantically multitasking to design our collective future stop to trace the antecedents of their grand enterprise?

Well, we were dismayed by the green light a U.S. federal judge gave Google last month, which lets the search engine leader continue to scan and upload millions of books online. It can do this without paying living authors of any of those print originals a cent for the free access it gives any web surfer to sections of the texts. This, as Google insists and the judge accepted, is an important act of cultural generosity. All very well, we agree, until you consider that it allows Google itself, already one of the world’s richest companies, to grow even richer from selling advertising space in its vast library of scanned texts, Google Books – while making no contribution to easing the notorious financial uncertainty of book-writing, or reversing the comprehensive destruction by the digital revolution of too many struggling writers’ livelihoods.

Google’s defence for this seeming callousness is all tied up with the scholar Lawrence Lessig’s insistence – enshrined in the ‘free culture’ movement – that loosening copyright laws will permit more ‘sharing’ of artistic and original works and a flowering of collective creativity; conversely, that the enforcement of traditional copyright blocks such creativity.

Too many of his ardent disciples are also apt to parrot the notion that all creativity is ultimately derivative and builds on the work of others. Fair enough, until that truism is wielded as a club, justifying the smashing of an artist’s right to earn income from the labour of shaping derivative inspiration. This argument is particularly unwelcome from anyone working in, say, Google – famous for its ferocious secrecy about its equivalent of Coca-Cola’s secret recipe, the algorithms on which its search engine runs. These are thickly enmeshed in protective patents. There is incontrovertible proof of the company’s recognition of intellectual property rights – but only in its own sphere, technology, where it follows the conventions for acknowledging in cash its indebtedness for creative opportunities. Google has for years been paying royalties to Stanford, the university where its founders Sergey Brin and Larry Page developed the algorithm they used to set up shop – a total of $337 million so far.

If Silicon Valley-ites knew their history, would Lessig’s wish to dilute if not dismantle copyright have proved so popular? Technologists know enough about the importance of the Renaissance for Bill Gates to have snapped up Leonardo da Vinci’s Codex for $30 million in 1994. But do they realise that the expression of personal, individual creativity was the key to that revolution? That in the Renaissance, artists were liberated from the constraining group-think and rigid rules of minds enslaved to medieval church doctrine?

Giorgio Vasari, a painter of that era and also the first historian of Italian art is said by the historian John Hale to have looked for maniera – the manner in which an artist expressed himself, a novelty after the Middle Ages’ convention of anonymous stonemasons toiling on great Gothic cathedrals, humbly suppressing their individuality in the service of God.

That individuality was of the essence of the Renaissance was also discernible in the way each country – and individual artists in it – reinterpreted the marvellous innovations in Italy in its own way. As Hale put it, ‘Whatever was made in Italy in the fifteenth and sixteenth centuries … met two major obstacles: personal genius and shared temperament – the stereotypes of national character …’. This accounts, for instance, for the strikingly different treatment of the female subjects of the German painter Lucas Cranach (1442-1573), whose ‘Venus Restraining Cupid’ Hale calls ‘the first frontally nude goddess in German art.’

Technologists need to help artists to prosper from the expression of their individual visions. In the eight years Google spent fighting the legal battle over its book-scanning, couldn’t it have found a way to use its clout and brilliant inventiveness to establish micropayments as a way to compensate artists, writers and musicians – the way Amazon has taken online retailing from a futurist’s pipe dream to everyday reality?

… We must note in closing that in years of delightful conversations with Federico and his lovely wife Elvia – also born in Vicenza, and whom he considers indispensable to his achievements in Silicon Valley – he has never sought any reflected glory from the Renaissance, nor drawn any attention to Palladio’s stamp on the appearance of his birthplace. His modesty is exemplary. Still, we doubt that he would disagree with this entry in post-Gutenberg, his eldest child being not a technologist but a painter … of whom we will reveal just a little more, anon.

Buon compleanno, Federico!

BLUE BACKDROP faggin