When Algorithms Enter The Courtroom

Law and math
Law and math
Valérie de Senneville

PARIS — On the left-hand side of the blue screen, court decisions appear at the speed of light. Some words are highlighted. Simultaneously, on the right-hand side, a map of France takes shape. Graphs form. "So, you see," Louis Garrett-Chahine starts, "if you've been fired for slander and if you want your dismissal to be reconsidered as being without real and serious grounds, it's best to say that you were a little tipsy, and it's best that your company is based in Brittany ... Ha! but careful, the trend is headed downwards — did you see that?"

Yes, we saw that. Moments before, Garrett-Chahine, the young co-founder of Predictice, entered the terms "dismissal," "after 2013," and "slander" into the platform's search engine. Immediately the powerful algorithm began scanning more than 1.5 million court decisions to analyze and present the chances of success and estimate a likely compensation. All it took was a few seconds. "Soon we'll also be able to identify the best arguments to put forward, allowing lawyers to adapt their strategy," he claims.

These kinds of scans are one of the latest technological innovations of Law 2.0, what "legal geeks' have named "predictive justice" — algorithms that, in record time, can analyze a huge mass of legal precedents to anticipate the outcome of a case, choose the most relevant arguments, or assess the potential amount of compensation. These tools can't turn lawyers and judges into fortune tellers. But they can assist the decision-making process.

Not surprisingly, they're drawing the interest of more and more legal experts and companies. "We'll save time," admits Benjamin Pitcho, an attorney in Paris. "It's an opportunity for the trade." But he also worries about the "ethical challenges' being raised, and about what kinds of limits should be placed on predictive justice.

Saving time and energy

Until recently, this kind of information was off limits, in practice if not in theory. But recent legislation in France makes it possible for the public to have free access to all court decisions, which must be made anonymous beforehand. A gargantuan task considering that French civil and commercial courts reach more than 2.5 million verdicts given every year.

Most experts reckon it will take at least five years to put everything into the online database. Predictive justice startups are champing at the bit. For the French market is divided up between five of them: Predictice, Case Law Analytics, Doctrine.fr (for general law), Supra Legem (for administrative law) and Tyr Legal (for labor law). But the field is still very much in its infancy, and SupraLegem is the only one that is open-source.

A very clear operational gain.

Some of these startups are still in beta version being co-developed with lawyers or companies. Predictice, for instance, has already signed partnership deals with legal offices such as Taylor Wessing, but also with the telecommunications group Orange and the legal protection branch of insurance company AXA.

"The use of predictive justice platforms enable us to strengthen and fine-tune our counseling and mediation strategy depending on our client, who will thus be in a position to make the best possible decision in an objective way," says Jean Manuel Caparros, a member of AXA's legal protection team.

It's a promising market, as demonstrated by the 2 million euros raised by the one-year-old Doctrine.fr, which aims to become no less than the "Google for law." The platform claims to be working from a database of 3.5 million court decisions. "We've taught bots to look for court decisions online," explains co-founder Nicolas Busmante. More than 7,000 lawyers are said to be using this platform, which lets them, among other things, assess how long a procedure might take and the risks involved. For now, it's also the only one that displays its subscription price: 159 euros per month.

The legal arm of SNCF Transilien — the train company in the Paris region — sees it as "a very clear operational gain."

Predictive justice makes the myth of one impartial and blind justice collapse.

"When they have to work on a case, jurists or advisers no longer have the excuse of needing time for research, which used to be enormous," says Alexandre Mornay, SNCF Transilien's legal director. Stéphane Dhonte, an attorney in Lille, agrees. "The lawyer's new role, combined with the diversion program, will change how we work. There's no point in fighting against the obvious tide."

Potential pitfalls

But some judges are concerned about the development, as evidenced by the fact that two of France's leading magistrates dedicated their new year's solemn addresses to artificial intelligence in the legal system. "The 21st century must prepare for a new revolution: open data," Bertrand Louvel, first president of the Court of Cassation (the highest court in the French judiciary), warned.

The stakes are high, for one thing because predictive justice makes "the myth of one impartial and blind justice, of judges as the "mouth of law," collapse by revealing its caprices," says Antoine Garapon, a magistrate and secretary general of the Institut des Hautes Études sur la Justice (Institute of Advanced Studies on Justice). Some experts also warn that lawyers might find it more difficult to impose innovative arguments, or arguments that go against an entrenched precedent.

There's also a real danger of a performative effect, a standardization of legal practices that could be seriously prejudicial to the people. One extreme example of this danger is the system called "evidence-based sentencing" used in some American states, and which is based on an algorithm to assess the duration of a sentence so as to minimize risks of recidivism. "A few months ago, however, the Obama administration released a report to calm things down because the results were too discriminatory," says Florence G'sell, Professor of Law at the University of Lorraine.

The experiment looks chillingly like the science-fiction movie Minority Report, in which the future society is imagined as one that would have eradicated murder by adopting a prevention system hidden inside the Department of Justice, whose goal is to detect warning signs of homicidal violence and to arrest "pre-culprits."

We're not there yet. For now, French predictive justice platforms have deliberately chosen not to develop algorithms on criminal court decisions, and a white paper on good practice regarding that issue is said to be on the drawing board.

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How Thailand's Lèse-Majesté Law Is Used To Stifle All Protest

Once meant to protect the royal family, the century-old law has become a tool for the military-led government in Bangkok to stamp out all dissent. A new report outlines the abuses.

Pro-Democracy protest at The Criminal Court in Bangkok, Thailand

Laura Valentina Cortés Sierra

"We need to reform the institution of the monarchy in Thailand. It is the root of the problem." Those words, from Thai student activist Juthatip Sirikan, are a clear expression of the growing youth-led movement that is challenging the legitimacy of the government and demanding deep political changes in the Southeast Asian nation. Yet those very same words could also send Sirikan to jail.

Thailand's Criminal Code 'Lèse-Majesté' Article 112 imposes jail terms for defaming, insulting, or threatening the monarchy, with sentences of three to 15 years. This law has been present in Thai politics since 1908, though applied sparingly, only when direct verbal or written attacks against members of the royal family.

But after the May 2014 military coup d'état, Thailand experienced the first wave of lèse-majesté arrests, prosecutions, and detentions of at least 127 individuals arrested in a much wider interpretation of the law.

The recent report 'Second Wave: The Return of Lèse-Majesté in Thailand', documents how the Thai government has "used and abused Article 112 of the Criminal Code to target pro-democracy activists and protesters in relation to their online political expression and participation in peaceful pro-democracy demonstrations."

Criticism of any 'royal project'

The investigation shows 124 individuals, including at least eight minors, have been charged with lèse-majesté between November 2020 and August 2021. Nineteen of them served jail time. The new wave of charges is cited as a response to the rising pro-democracy protests across Thailand over the past year.

Juthatip Sirikan explains that the law is now being applied in such a broad way that people are not allowed to question government budgets and expenditure if they have any relationship with the royal family, which stifles criticism of the most basic government decision-making since there are an estimated 5,000 ongoing "royal" projects. "Article 112 of lèse-majesté could be the key (factor) in Thailand's political problems" the young activist argues.

In 2020 the Move Forward opposition party questioned royal spending paid by government departments, including nearly 3 billion baht (89,874,174 USD) from the Defense Ministry and Thai police for royal security, and 7 billion baht budgeted for royal development projects, as well as 38 planes and helicopters for the monarchy. Previously, on June 16, 2018, it was revealed that Thailand's Crown Property Bureau transferred its entire portfolio to the new King Maha Vajiralongkorn.

photo of graffiti of 112 crossed out on sidewalk

Protestors In Bangkok Call For Political Prisoner Release

Peerapon Boonyakiat/SOPA Images via ZUMA Wire

Freedom of speech at stake

"Article 112 shuts down all freedom of speech in this country", says Sirikan. "Even the political parties fear to touch the subject, so it blocks most things. This country cannot move anywhere if we still have this law."

The student activist herself was charged with lèse-majesté in September 2020, after simply citing a list of public documents that refer to royal family expenditure. Sirikan comes from a family that has faced the consequences of decades of political repression. Her grandfather, Tiang Sirikhan was a journalist and politician who openly protested against Thailand's involvement in World War II. He was accused of being a Communist and abducted in 1952. According to Sirikhan's family, he was killed by the state.

The new report was conducted by The International Federation for Human Rights (FIDH), Thai Lawyer for Human Rights (TLHR), and Internet Law Reform Dialogue (iLaw). It accuses Thai authorities of an increasingly broad interpretation of Article 112, to the point of "absurdity," including charges against people for criticizing the government's COVID-19 vaccine management, wearing crop tops, insulting the previous monarch, or quoting a United Nations statement about Article 112.

Juthatip Sirikan speaks in front of democracy monument.

Shift to social media

While in the past the Article was only used against people who spoke about the royals, it's now being used as an alibi for more general political repression — which has also spurred more open campaigning to abolish it. Sirikan recounts recent cases of police charging people for spreading paint near the picture of the king during a protest, or even just for having a picture of the king as phone wallpaper.

The more than a century-old law is now largely playing out online, where much of today's protest takes place in Thailand. Sirikan says people are willing to go further on social media to expose information such as how the king intervenes in politics and the monarchy's accumulation of wealth, information the mainstream media rarely reports on them.

Not surprisingly, however, social media is heavily monitored and the military is involved in Intelligence operations and cyber attacks against human rights defenders and critics of any kind. In October 2020, Twitter took down 926 accounts, linked to the army and the government, which promoted themselves and attacked political opposition, and this June, Google removed two Maps with pictures, names, and addresses, of more than 400 people who were accused of insulting the Thai monarchy. "They are trying to control the internet as well," Sirikan says. "They are trying to censor every content that they find a threat".

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