Elec­tro­nic Data Pro­ces­sing (EDP) in Traf­fic Mat­ters (Lec­ture)

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?

Traffic’s enor­mity

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.

Uni­for­mity

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.

Speed

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.

Enor­mity

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.

Uni­for­mity

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.

Speed

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.

Inter­me­diate Con­side­ra­ti­ons

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

Enor­mity

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.

Uni­for­mity

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.

Speed

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.

The Net­work

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.

Blind Trust

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.

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.

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