How the U.S. can compete with China on digital justice technology

View of an online hearing of an internet-related case at Hangzhou Court of the Internet, the first internet court in the world, in Hangzhou city, east China's Zhejiang province, 18 August 2017.Hangzhou Court of the Internet, set up to handle the soaring number of online disputes, has gone online in Hangzhou, Zhejiang province, on Friday (18 August 2017). It is said to be the first internet court in the world, and it will focus on hearing six kinds of civil and administrative internet-related disputes, including online piracy and e-commerce. The court has generated attention among internet and legal industries since its establishment was formally approved by the central leadership by the end of June.No Use China. No Use France.

China is exporting digital authoritarianism around the world, yet the debate over how to best counter its efforts to export surveillance tools has largely focused on telecommunication technologies, like those central to the human rights abuses against the Uyghur population in Xinjiang. In fact, investing in telecommunications infrastructure is only one aspect of the way in which the Chinese government is using digital technologies to centralize power.  

Over the last decade, China has rapidly digitized its justice system, such as by using blockchain to manage evidence and opening virtual courts. In doing so, its innovations have caught the attention of justice reformers around the world looking to modernize court systems. Yet this technology is being used to increase central control over the judiciary and collect data on citizens. Both are antithetical to the liberal ideals of human rights, the rule of law, and separation of powers. 

More than an economic driver, Beijing sees its digital surveillance technology as a foreign-policy tool to gain leverage against the West, and it is critical that Washington now respond. China’s “techno-authoritarian toolkit” has already been exported to at least 18 countries, including Ecuador, Ethiopia, and Malaysia. As China sells its tools for domestic control, its digitized justice system may be its next offering to allies and trading partners. Without a compelling alternative, China can push its digital domain into the backbone of democracy—the justice system. To avoid the digital erosion of the rule of law, the United States must invest in and support court technologies that provide an alternative to China’s. By funding research and development and the technical capacity of our justice system at home, the United States can produce desirable court and justice technologies that counteract China and advance liberal ideals around the world. 

The success of liberal democracy is rooted in the rule of law, which requires the public’s trust in the law and access to its remedies. Unfortunately, 5.1 billion people worldwide lack access to justice systems. Obstacles, such as cost, language, and distance prevent people from using the justice system. A lack of tools like a state ID or formal work agreements can also prevent people from attaining legal protection. This is a crisis affecting both established democracies, like the United States, as well as developing nations. The adoption of the UN’s Sustainable Development Goal 16.3, which promotes the rule of law and aims to ensure equal access to justice for all, has spurred interest in addressing this problem. Alongside ongoing policy reforms, community advocacy, and improved funding, technology is playing an increasingly important role in improving access to justice and justice system administration.  

In countries around the world, justice systems are rapidly digitizing. In Southwest Nigeria, searchable court record databases are being developed. In Estonia, chatbots help people find court resources. The Canadian province of British Columbia runs an online civil tribunal. Governments, private companies, and NGOs are all experimenting with technologies that improve justice system accessibility, transparency, function, and trust.  

But no country has done more to digitize its justice system than China. Through its Smart Courts Initiative and the creation of fully virtual “internet courts,” China’s Supreme People’s Court has overseen the development of a central data center that powers the justice system. It collects extensive court data to track consistency in sentencing and judgment outcomes and stores recordings of hearings. The SPC also brought to the courts a chatbot to assist judges; facial recognition verification of litigants’ identity; and a blockchain-based system to authenticate evidence. Built by Chinese tech heavyweights, like Alibaba, Baidu, and Tencent, this technology appears to have broader commercial applications, including in new markets internationally.  

Many of these programs have garnered praise both at home and abroad, including in the West, for increasing judicial transparency through better data collection and decreasing the cost of litigation. Other changes are expected to help analyze court data and improve access or efficiency. For advocates of court modernization, China appears to be leading the way in applying digital technologies to justice systems, even if there are important reasons to be skeptical.  

From China’s perspective, the benefits in digitizing court systems are externalities to two major policy goals: centralized control over the judiciary to ensure that court outcomes meet the Party’s goals and increased data collection of its citizens, informing its invasive social credit system. In short, the path to court modernization in China paves over core democratic and human rights values. 

State court systems in the United States are experimenting with digital technologies, but at a slow and painstaking pace as they dig out of decades of budgetary neglect. Building blocks to a robust digital infrastructure, like adopting court data standards, are being trialed, for example. Nonetheless, a 2015 study put into stark perspective just how far behind the United States remains: 26 state court systems could not provide data on how many cases were filed and disposed of in a year—the most basic of data points. When this is the reality across American state courts, the United States cannot expect to compete with what China produces.  

Last December, then President-elect Joe Biden tweeted, “As the United States works to advance human rights around the world, we must also recognize that our task begins here at home.” An ambitious national plan to create new and impactful justice technologies at home could meet these dual goals of the current administration, while also countering China. 

To do this well, Congress would need to appropriate a down payment of $500 million to backfill existing needs and make smart bets on innovations that show promise. Such a sum would provide enough money to help states offset the adoption of statewide case management systems and seed new ideas. Promising technologies that would benefit from this investment include AI tools that transcribe video evidence for public defenders and software that helps people in rural communities easily file for divorce or bankruptcy without hiring an attorney. 

To set U.S. technology apart, this money must go beyond technology development and produce policies and procedures that protect people’s constitutional rights, their privacy, and democratic checks and balances. Investments like these represent an opportunity to retool some of China’s most promising ideas so they comport with liberal court systems. For example, should courts sell litigant information to data brokers? How do open records laws need to change if courts collect and can easily disseminate increasingly private information, like personal medical histories? What protections should litigants and witnesses receive if their hearing is live-streamed? Financial support will be critical to answering questions like these that court leaders and academics are just beginning to contemplate. 

Investments in technology such as this are not without precedent. In the United States, the Legal Services Corporation has funded novel and infrastructural technology projects that impact civil legal aid for the past 20 years. In other areas of government, the Small Business Innovation Research program provides money to support research and development; the Office of Innovation and Entrepreneurship at the Department of Commerce helps fund communities in support of innovation. A reconstituted Office of Access to Justice at the Department of Justice, alongside the National Institutes of Justice, Bureau of Justice Assistance, and the State Justice Institute, could help manage investments, provide technical assistance, and act as a clearinghouse for lessons learned from the states.  

If the United States is able to make smart bets on digital courtroom initiatives, it can spur a renaissance in American justice. By making bold investments, states and local communities have the opportunity to invest in their justice systems after decades of austerity and diminished public access. Allowing states to be laboratories for innovation will produce new ideas and technologies to compete with those China is exporting.  

With a better, more democratic set of tools at hand, the U.S. government can share these products and processes abroad. The U.S. Agency for International Development might use such a toolkit to think more creatively about international rule of law assistance. Beyond aid, existing U.S. foreign policy goals can be assisted by improved and pro-democratic justice technologies. The U.S.-EU Trade and Technology Council, the new trans-Atlantic body set up to encourage the development of technology standards in line with democratic values, may be another venue to promote such technology. Similarly, “the Quad”, an informal alliance of Australia, India, Japan, and the U.S. to counter China’s rise that recently espoused a common set of principles for technology development, is an opportunity to share and grow these projects among the Pacific’s democracies.  

The United States is at an inflection point as democratic systems are being attacked here and abroad. We have the capacity, ingenuity, and money to bolster our democracy, counter China’s growing digital influence, and lead the world on justice technologies that safeguard our most sacred ideals. The only question is: will we? 

Jason Tashea is the distinguished visiting technologist at the George Washington University School of Law and the editor of the Justice Tech Download newsletter. He is a member of the Legal Services Corporation’s Emerging Leaders Council and does not speak for LSC. His report on digitizing global justice systems is forthcoming in the MIT Computational Law Report.