By Jason Tashea

For the last few years, I’ve worked as a consultant for the World Bank researching the role technology plays in justice. It has been a wonderful experience that has allowed me to explore new projects and approaches to justice technology from around the world. It has also been an opportunity to explore how many of these technologies, if not contracted for correctly, can negatively impact the rights of litigants and justice system patrons.

As many already know, justice system agencies–courts, district attorneys, legal aid, public defenders, and corrections–are rapidly adopting digital technologies to administer a justice system or service, create access to that system or service, or increase the agency of justice system-involved people through online support. However, procurement processes–how governments buy goods and services–are too narrow or outdated to competently vet the newest technology. This leaves technologies and vendors under investigated, which creates human rights harms for people in the justice system and the public at-large. To ameliorate the problem, I propose, in forthcoming research, the use of a sustainable procurement model that creates a human rights-based approach to buying justice technologies.

Software, unlike physical goods that government agencies buy, can have significant legal and policy implications. As one report acutely pointed out, the increased use of data and software, like algorithmic tools, in the criminal justice system “are blurring contemporary regulatory boundaries, undercutting the safeguards built into regulatory regimes, and abolishing subjectivity and case-specific narratives.” Far-reaching concerns have been found in the civil justice system, as well.

Software-induced harms are impacting equal protection under the law, privacy, access to opportunity, and government transparency. For example, algorithmic tools can inject bias into the judicial process, which can reinforce, create, or automate discrimination against disadvantaged groups. Regarding privacy, justice data is collected by private vendors on behalf of government agencies with no clear policy about how that data is used. When this happens, it can impact people’s abilities to find housing, attain government benefits, and depress earning potential.

Meanwhile, private entities are limiting public and agency access to public data, because they can make significant profit by controlling the data. Reinforcing control, vendors who run case and records management systems make it hard for other vendors or researchers to use public data by limiting interoperability, the ability for software to “talk” to other software, which hurts justice sector innovation.

To ameliorate these harms, I propose a human rights approach to purchasing justice technology that improves the sophistication of government buyers to safeguard the rights of justice system-involved people and the openness of democratic institutions.

This rights-based approach to procurement is called sustainable procurement. It expands the scope and impact of government procurement processes, which has traditionally focused on a transactional “value for money” standard, a check against corruption, and anti-competition measures. The sustainable approach goes further by leveraging government buying power to promote responsible production and consumption of goods and services that helps governments meet Sustainable Development Goals. It also requires that private companies take actions they would otherwise not.

For this to occur, justice agencies must start asking more questions of their vendors and setting higher standards in their requests for proposals. For example:

  • How can this technology impact the rights of people engaging with or trying to access the justice system?
  • Does the vendor provide an open application programming interface (API) with clear documentation to allow software to “talk” to each other?
  • Is the agency or vendor collecting, or requiring to be collected, more data than is required for the purpose of a project?
  • Who owns the data collected and processed under the contract?
  • How, if at all, will the vendor profit from the collection of public data outside of the immediate contract?
  • What happens to data and other digital artifacts if the vendor is sold, closes, or changes business models or if the contract ends and moves to a new supplier?

Asking these types of questions start to create a procurement system that considers the impacts, access, and accessibility of a technology. Doing so optimizes for human rights protection and puts the focus on citizens using the justice system, making it a people centered-approach. For governments, a human rights focused procurement process will help avoid negative experiences for users, which will bolster the public trust and confidence of the justice system and avoid legal and political liabilities. Last, having rights-abiding justice technologies supports people looking to advocate for other Sustainable Development Goals through the legal system.

As demonstrated, justice agency purchases of certain technologies are linked to adverse human rights impacts on people and communities–but they don’t have to be. Improving the sophistication of government buyers and incorporating sustainable procurement practices can help agencies fulfill their human rights obligations and operate better. It’s time to add procurement to our access-to-justice toolbox.

Jason Tashea is the Schmidt Innovation Fellow at the Georgetown University Law Center and a consultant for the World Bank. He is a member of LSC’s Emerging Leaders Council.

A Human Rights Approach to Justice Technology was originally published in Justice Rising on Medium, where people are continuing the conversation by highlighting and responding to this story.