Electronic Data Processing (EDP) in Traffic Matters
Three questions at the beginning
Let me start with three provocative questions:
- Is there any representative group of lawyers in Germany, which is really enthusiastic
about computers in traffic matters or court cases in general?
- How frequently do we come across the opinion that EDP should be implemented
as a matter of principle rather than merely for practical purposes?
- Is it not the case that EDP has been met with a rather reluctant acceptance?
Everyone will certainly have their own answers to such question. These answers form the crux of the matter when investigating the topic of EDP in Traffic Matters, and it is necessary to examine them carefully.
Potential and Necessitated Applications
As is the case with any reflection on technical matters, it is worthwhile from the outset to consider methodically its potential applications, as well as the instances that necessitate its application.
Within the broad range of potential applications available there is one aspect of great importance: We should only seize upon an opportunity if there is good reason for our doing so. If such reasons exist, the situation may even develop into a necessity. In other words (using “necessity” in its literal sense): if the need dictates.
Do we face a necessity when it comes to traffic matters? Many of those who are involved in these matters are aware of the urgency of the situation, a situation for which they themselves are blameless. However, the multitude of cases flooding the justice system and the backlog which ensues has reached alarming dimensions. Using the term “necessity” in this context may thus be no exaggeration. Hold-ups and tailbacks on the judicial highway, if we are to stick to traffic-related terminology, are hazards that we must confront, especially if we want to secure the integrity of our judicial system.
Method of Approach
How can we approach our question methodically and purposefully? My approach is inspired by the French philosopher Roland Barthes, member of the Coll�ge de France. In his lifelong philosophical reasoning he paid particular attention to traffic matters. He was firmly convinced that the world is a system of signs which can be read like a book. In this sense, traffic is an especially meaningful book.
Main Characteristics of the Phenomenon of “Traffic”
Let us first take into consideration the structure of traffic and therefore implement a phenomenological approach. What do we understand by the terms traffic and traffic matters?
Traffic matters are matters concerning traffic. This is obviously the expression put simply. From this approach (an approach which I consider to be reasonable), traffic matters are subject to definition as a kind of epiphenomenon and thus, presumably, they share certain central characteristics with traffic. Let us, therefore, turn our attention first to the phenomenon of traffic. What characteristics immediately strike us when we examine traffic from a distance?
To begin with, there is traffic’s enormity. Traffic is a massive phenomenon. Even private vehicle traffic, a term frequently misconstrued, is a mass phenomenon, and this is where the problem lies.
Secondly, there is uniformity. When regarded from the perspective just mentioned, individual car brands lose their importance. All vehicles, be they luxury or compact cars, blend in an abstract sense into one stream of traffic moving past our analytic eye.
And thirdly, there is speed, which is generally taken to be crucial to traffic, but although it often cannot be factually comprehended, it exists as a “will and a vision”. The term “standstill” seems paradoxical, as the wish to maintain an appropriate speed level in order to cover distances is crucial to traffic.
Central Characteristics of Traffic Matters
Traffic matters share the characteristics of enormity, uniformity and speed, which themselves are responsible for having passed on these features to them in the first place and thus put their seal on them.
Our first encounter is with mass phenomena. As we all know, the cases relating to traffic have reached staggering proportions. It is often difficult for our legal system to cope with the flood of cases, and in many places, the limits of coping with this multitude have reached, if not exceeded.
Secondly, we can see that uniformity, too, exerts its influence in this context. Traffic related matters demonstrate uniformity to a much greater extent than other domains. Typical incidents keep recurring. Central to these is the road traffic accident, and this gives traffic matters their individual character.
Thirdly, we encounter speed in traffic matters in the same manner as has been described for traffic and this needs to be taken into consideration.
The Promises of EDP:
Achieving more, more Uniformity and improving Speed
Advocates of computerisation are particularly pleased when we name the three comparable central characteristics shared by traffic and traffic matters: enormity, uniformity and speed; and they say: This instance is suited the application of EDP. The use of EDP is ideally suited to the management of mass occurrences. It ensures uniform and quick handling of matters. Electronic data processing helps us to tackle problems in a more effective and homogeneous way.
This is the promise of electronic data processing (EDP) which we encounter everywhere, and this is why any organization concerned with legal matters is already equipped with computers.
At this point we must tread more cautiously as one of the risks has already been realized. If we look more closely at what has happened: a factual situation arises, a promise is given and enormous investment ensues. But is the application of EDP in this field justified? What makes us trust the promises made by EDP? When we ask this question the world changes. That is why we should focus on this basic principle more frequently than we usually do. The essence of this principle is easy to find: Needs do not arise automatically. Only when an application is held against normative prerequisites which themselves demand justification; only then does a need manifest itself. This is as true for EDP as it is for any other technology or implement. The premature conclusion that any implement becomes necessary just because it merely exists is a dangerously normative one, namely the false conclusion that the mere existence of something implies the necessity of its existence, as philosophers would put it. Or, as an official of the German Ministry, when it was still based in Bonn, formulated it during his carnival speech: Potatoes must be eaten simply because they are there.
Let me rectify this statement by saying: Only if we are hungry and potatoes are an appropriate means of satisfying hunger will we have to eat them. If this is not the case, they won’t be eaten, least of all will they be eaten only on account of their being there.
This means that we need a normative justification if we want EDP to help us out of the emergency in which traffic matters currently find themselves. We could find such a justification in the goals of “achieving more, more uniformity and improving speed”. This would, however, not be the most fundamental justification possible. We can also and this may sound surprising to some appeal to justice in order to show that the three aspects mentioned above (enormity, uniformity and speed) are involved with justice, hence can be fundamentally justified.
Postulates of Justice
As a starting point, let us discuss enormity. Justice is there for everyone. If the quantity of all those who expect justice is large then justice can be regarded as a bulk commodity, even if this may sound strange. Consequently, information on statutes and case law is also at the disposal of everyone. For this reason the Association for Computing in the Judiciary Congress’ motto some years ago was “Free Law for Free Citizens”, and last year it was “Free Jurisprudence for Free Citizens”. Justice is therefore accessible for everyone, and if it were to become a limited resource, we would find ourselves confronted with a problem of injustice.
By the way, the maxim “suum cuique tribuere” is evocative of exactly the following idea: If everybody is given what she/he is entitled to, then everybody has a right to justice.
And if everybody is entitled to this kind of justice and the judiciary system acts according to the postulate which confers the right to justice to everyone, we can say (and this may sound strange but is appropriate): The discourse about justice is a matter of mass communication. A traditional metaphor arises in this context. The Old Testament speaks of justice as a stream that shall flow through the country. We could adjust the term to our present situation and say: like a flow of traffic.
All that means from a normative perspective is that if we cannot guarantee the large-scale administration of justice without EDP and there are various reasons that justify its serving role (I lay stress on the term serving in this context) its application is strongly advocated on the basis of justice. Thus the question “Shall we apply EDP?” loses its merely practical meaning of where and when are we supposed to install what kind of machines? Quite on the contrary: We now encounter a fundamental idea for which opponents of EDP have yet to find an adequate alternative. We thus observe a momentous shift in the emphasis of argumentation between opponents and proponents of EDP. The prerequisite for this shift is always that supporters of EDP are concerned enough to make the attempt of finding a fundamental justification.
The next point in our discussion on traffic and traffic matters is uniformity. Here we find a close connection between justice and uniformity. As we know, justice in the traditional sense comprises two aspects, one is material justice, and the other is formal justice.
Material justice according to “suum cuique tribuere” is intended to provide everyone with the amount of justice that they believe they are entitled to. Formal justice aims for the equal treatment of equal cases, a principle inherent in the constitutional law in Germany. This claim had already been recognised in ancient times. Cicero described it as follows: Valeat aequitas quae in paribus causis paria iura desiderat (the principle of aequitas should apply in order that equal legal consequences for equal facts are ensured). From this understanding, uniformity is a principle of justice. Consequently (and here we encounter a recurrence of thought), if EDP as a matter of principle turns out to be a substantial contribution to the equal treatment of cases, it will again prove to be a necessity in terms of justice. Much speaks for such an approach. Equal treatment of equal cases requires, for instance, a comprehensive overview of all the cases already adjudicated. In view of the large quantity of cases to be adjudicated, it should be clear that only effective information technology would be able to tackle this task, and thus even the creation of databases is pertinent to justice.
By the way, at an informal meeting yesterday it was recounted to me that a similar idea had been one of the reasons behind the initiation of the association’s symposium on traffic. The initiators who were from Hamburg were well aware of the difficulty that courts, when deciding traffic cases, adopt inconsistent approaches according to their geographical location. They intended to rectify this situation by improving the flow of information and thus ensuring a uniform application of justice.
Justice and Speed many will ask what the connection between these terms could be. It is a closer one than we would at first think. The British legal system illustrates this in a saying: Justice delayed is justice denied. Justice which is administered or granted too late can be considered a denial of justice. The European Court of Justice for Human Rights has pointed to this fact on several occasions. This awareness is also conspicuously expressed in the Latin phrase “bis dat qui cito dat” (he who gives quickly, gives doubly). The passage of time devalues something which has not been granted on time. And as we don’t have an infinite amount of time at our disposal, justice which is granted too late may turn, in the worst case, into injustice. If we continue to use traffic-related terminology we might say: Justice is a just-in-time-concept (this is a daring expression, but it is correct in the literal sense of the word). As a consequence we can again say: If EDP is to make a worthwhile contribution to an accelerated judicature, its application is compulsory for reasons of justice.
It is a fact that EDP has the potential to make a contribution of this kind. However, this is not always the case. Like the points discussed previously, EDP’s capability to reach these goals is only correct in principle. EDP as such is not guaranteed to reach these goals. This raises a fundamental question: At issue is not the use of EDP as such, but the efficient implementation of EDP, of an EDP whose concrete use demonstrates that it does in fact fulfill the role it must (and is not merely permitted to as many people would say) play for the above mentioned normative reasons.
The Borderline between Efficient and Inefficient EDP
As mentioned above, EDP is likely to keep its promise with regard to enormity, uniformity and speed only if it is embedded in efficient data processing systems. If this is not the case then processing backlogs may occur. The bulk of incoming cases cannot be adequately coped with within the time required. The term “world wide wait” which is sometimes used instead of “World Wide Web” reminds us of the fact that inefficiency is characteristic of the implementation scenarios of non-scalable systems, (and this is not connected to the standards set for the WWW). Paradoxically enough, court procedures may even decelerate on account of the implementation of EDP. This is clearly exemplified by the first attempt undertaken some time ago to automatize an order of payment procedure.
We also encounter inefficient information systems which render finding relevant information impossible. Thus a uniformity of treatment cannot be guaranteed due to these inefficient information systems.
As a consequence, we have to differentiate (and herein lies the main distinction) between badly implemented and efficiently implemented EDP. It is not easy to know in advance how this distinction should be made. Naturally, we are all the wiser later. The principle: “The test of the pudding is its eating” is always reliable. This is not, however, a planning strategy. The aim is rather to be able to differentiate the one from the other as early as possible. And this is the basic planning problem which does not become apparent at all if we regard the implementation of EDP as an unquestionable good.
There is certainly no planning scenario which could automatically enable us to detect inefficient EDP in the first place. Still, there are some promising indicators in this field. They can be found by asking specific questions and, if these cannot be answered by a strategic response, then the EDP scenario has to be handled with care.
The following questions provide an example of what this means in methodical terms:
Are there any proven benefits to be gained from the new technique?
The question whether the recommended system offers proven benefits compared to current operational procedures is one that must always be posed. For instance, when asking this question with regard to the implementation of electronic files, we will soon perceive various disadvantages when we compare this method with that of traditional filing. Intuitive understanding of the “old” medium in comparison with the “new” one is an aspect of this discussion. Some electronic files may seem deficient when this approach is taken. These deficiencies can be remedied. If this is not done then we find ourselves from the very start confronted with inefficiently implemented technology.
Has the durability of the new technique been taken into consideration?
What about the manageability of the new technique?
Digital signatures are illustrative examples for questions of manageability. It is indubitable that we need this new technology (this is in fact connected with the electronic file, since every entry and any change in it has to be authentically documented in the file). Even so, the implementation of digital signatures may create conditions that hamper the easy mastery of this basic technology. This is an indication of the fact that its present-day implementation may not be the most effective one. To conclude that legislation is responsible for this situation does not help matters in the least.
Traffic as an EDP System
Let us recapitulate: EDP in principle conforms not only to traffic cases but also to traffic. Let us do a cross-check: Could we ever imagine traffic as existing without EDP? I don’t think so. Without EDP, traffic could not function properly with regard to mass, uniformity and speed. I am well aware of perhaps repeating commonplaces, but sometimes shared knowledge needs to be mentioned in order to arrive at a systematic framework. Let me give you a few keywords: Cars have meanwhile evolved into “rolling information systems”. Networked information systems control traffic. To put it in exaggerated terms: Traffic has itself become an EDP system.
Chances and Risks
After having tried to arrive at some fundamental insights, let us now take a look at the possibilities and risks of traffic-related EDP.
First of all we have to clarify the meanings of “possibility” and “risk”. A risk looms large behind everything that seems to be a possibility. Thus possibilities and risks are two sides of the coin. If we consider only the possibilities of EDP without keeping its risks in mind, fundamental issues will be ignored (and vice versa). Both aspects together form a comprehensive picture. Let me therefore cite some crucial examples for possibilities and risks.
Nowadays the information systems that we encounter are networks. This has become a fundamental principle of these systems. It is generally regarded as an improvement, and rightly so. Isolated information islands no longer exist. Data exchange between heterogeneous applications via the world wide networks has become common practice instead. The internet and the vision of a “semantic web”, a network that has been given a well-defined meaning which facilitates information exchange, has been very explicitly demonstrated by the W3C-consortium. This was the brainchild of Tim Berners-Lee, who, along with Robert Caillau, was one of the two “fathers” of the World Wide Web. Tim Berners-Lee is convinced that this technology does not have any inherent meaning and so requires meaning to be fed into it. Sense is connected to meaning, and this meaning needs to be anchored to the World Wide Web. At present, this is one of the most exciting issues in legal informatics. The German world of jurisprudence has not yet adequately realized the importance of this issue, and consequently our field of research still lies outside the scientific mainstream. If these keywords should appear to be too cryptic, help can be obtained from the W3 websites which can be consulted as one would a large library.
The Cooperative Connection
Nowadays, individual EDP systems are part of a cooperative coherent system (and can only be adequately understood as such). This fact is a chance and is also a central risk. It is essential to find a framework where the risks and the possibilities are properly balanced. This postulate refuses an “either / or” logic. In contrast to this, we often encounter EDP discussions that are, strictly speaking, structured according to this logic. This strategy is methodically misleading . My lecture therefore intended to show that EDP in traffic matters is essential, not for its own benefit and not as an arbitrarily implemented device, and that it is imperative to find a balance between divergent expectations and objectives. It would be a great achievement if this principle could underlay any discussion about the use of EDP in legal matters.
The Language of Images
Another further mixture of possibilities and risks is presented in the way we handle images. At the entrance of this hall we encountered an interesting technology which serves to visually reconstruct road accidents. When looking at these images, we are reminded of dialectics in the classical sense of the word: On the one hand, we are encountering a useful technology, a possibility. On the other hand, there are also risks lurking here. Images, as we all know, exert a powerful influence on us. Since we tend to succumb to this principle, we live in the age of visualization. In American traffic courts, the reconstruction of road accidents is shown in film form. The illusion that is thereby created is that reality has been captured and brought into the court room, an illusion which is clearly not true. Images are only reflections of reality, not reality itself. The images follow their own suggestive rhetoric. Prof. Kroeber-Riel, my colleague from Saarland University, is the author of a work of reference entitled “Visuelle Kommunikation” (Visual Communication). If we cease to be aware of the difference between reality and images, and if we don’t reflect on it in a nuanced way, then a dangerous application of technology with unpredictable consequences may occur. As this trend towards visualization does not yet play a predominant role in legal procedures in Germany, there is still enough time left for us to prepare for it through preparatory reflection. This might be a common issue for the association’s symposium on traffic and the Association of Computing in the Judiciary: The language of images in traffic matters.
The last kind of risk I would like to discuss is a fundamental one. We could call it “the risk of blind trust”. This attitude is especially dangerous as it tends to be nurtured by the apparently smooth functioning of EDP. The risk that we would never trust software which does not function is minimal. Yet we automatically believe that all is well when EDP apparently works smoothly. But this is not necessarily true. As a consequence, a field of study with regard to “trusted computing” has evolved in informatics. Its central question is: “What makes us trust apparently functioning EDP?” It would be advisable to make this topic, which is specific to informatics, relevant for our concerns as well. Let me give you an example of where the problem lies: Some time ago incorrectly programmed pocket calculators were given to pupils in the U.S. in order to study the pupils’ reactions. It was only after a 25% deviation from the expected result became visible that the pupils pointed out the calculation error, and this was done only very hesitantly. This behavior not only occurs in artificially induced situations, it also arises in real life. If you take a calculator and extract the root of a number, say 3, and then square the result, you should obtain the same number you started off with, but often enough this is not the case. This is an indication of the calculator’s inner arithmetic being different from what strictly formal mathematics require. The disturbing question as to which result we can trust remains.
Is the machine taking over?
What will the final result be in this situation? The possible consequences may be indeed serious. We may lose our own powers of judgment. The machine will take over. I fear this has already happened in many areas of our everyday life. If we were to take away somebody’s EDP-machine, would they still be able to cope with the task they’ve been set? A science fiction author has taken this issue as the material for an impressive story: Sometime in a future millennium a giant spaceship loses its orientation in the galaxy. Its computer has broken down. It is not possible to calculate the parameters of its return course. Thousands of people on board therefore prepare for their imminent death until somebody says that formerly people were able to calculate courses without the help of machines. The crew now organizes itself into several units, each of which is assigned the task of solving a part of the arithmetical problem. Each result is then passed on to the next unit, and in the end the groups manage to work out the return course. But what, asks the author, if no one had been able to calculate any more? Therein lies the real danger. And in considering this, we are approaching the final key point in our analysis: The limits.
We should always consider that there are limits to every instrument which have to be assessed. But besides these more common limits there are other limits in the case of certain tools (computers being perhaps the most prototypical of them) which cause mankind to re-assert itself. In our context this is the case when the ward (EDP) wants to become the guardian, or when EDP refuses to obey commands any longer. The principle of human self-assertion in the face of the threat posed by machines when used judiciously can be very helpful in assessing EDP projects. For example, a statement such as “the EDP won’t permit it” ought to immediately trigger reflection as to whether the machine is signaling its wish to take over command. We should develop a very high degree of sensitivity to this kind of situation and go to the trouble of preventing the essentially useful machine on which we actually depend from dominating us.