The Duty of Tech in the Algorithmic Society
The age of legal tech is upon us. The possibilities are endless, and the potential access to justice benefits have never been greater. One thing is certain: law will never be less technologically oriented than it is today.
This certainty may induce excitement or fear, but we all should proceed with reasonable care. In fact, it may be an ethical violation not to. The Duty of Technology Competence requires lawyers to keep abreast of “changes in the law and its practice, including the benefits and risks associated with relevant technology.” To date, 28 states have adopted the duty.
Using reasonable care to understand the benefits and risks associated with relevant technologies is increasingly difficult as society moves beyond the abundance of information that defined the Information Age to increasingly rely on algorithms that sort big data in the Algorithmic Society.
The difficulty is in how easily algorithms retrieve "relevant" information. Couple this perceived ease with the shoddy research habits of the Google Generation (those born 1993 and after), and you may have a recipe for disaster.
There have been some interesting findings about the Google Generation's information behavior. As early as 2008, studies show that “the speed of young people’s web searching means that little time is spent in evaluating information, either for relevance, accuracy or authority.” Additionally, “[f]aced with a long list of search hits, young people find it difficult to assess the relevance of the materials presented and often print off pages with no more than a perfunctory glance at them.” Also, “[y]oung scholars are using tools that require little skill: they appear satisfied with a very simple or basic form of searching." In addition to the user habits of the Google Generation, society, in general, has become increasingly comfortable with relying on the top results that an algorithm generates. “[R]esearch indicates that over ninety percent of searchers do not go past page one of the search results and over fifty percent do not go past the first three results on page one.”
These ingrained research habits generally equate with allowing algorithms to do the heavy lifting to decide what is relevant. In law, a user relying on the first page of results in the legal databases may get significant variation in the relevant cases on a particular topic. The user, through hasty searching and vetting of results, has just allowed the algorithm to have a significant role in selecting the cases that the algorithm deems should advance the law.
The legal academy, including law librarians, must instruct on the pitfalls of blindly relying on algorithms, including issues with machine learning bias and other.
For more information and practical tips for instruction, see my latest draft article, Beyond the Information Age: The Duty of Technology Competence in the Algorithmic Society which will appear in volume 69 of the South Carolina Law Review.