As we know all too well from our personal lives, tech products have a short reliable life span. We accept regular disruptions in internet and cellphone function as a fact of life. Technology ages rapidly, with glitches increasing common only a couple of years into its life.
Yet, “smart” technology is all the rage. Cities proclaim themselves smart by putting cameras everywhere and developing infrastructure scheme based upon as-yet uninvented technologies, mass data collection and the promise of AI to make it work.
Yet, our zeal to pray at the altar of tech and empiricism, the glorious future tech promises, ignores the obvious. What we know already gets ignored by the blinding promise of the future.
New technology in 2015 will be outdated before 2020. If we widely deploy smart tech in cities, we need to be prepared to replace it every few years, with the associated disruption and cost. But who will assume those costs?
Who will run these magnificent systems? Who will suffer when they fail, and they will fail because systems fail, usually at the least convenient times? What happens when a future administration, a future disruptive technology, goes in a completely different direction than the last “best thing ever” idea? The list of questions is long, but culminates in the biggest question.
The most critical question, however, is whether having a smart city will make us meaningfully better at solving urban problems. Data and algorithms alone don’t actually add very much on their own. No matter how much data a city has, addressing urban challenges will still require stable long-term financing, good management and effective personnel. If smart data identifies a road that needs paving, it still needs people to show up with asphalt and a steamroller.
The questions raised have an analogous appliction to what we’re doing in law, both in infrastructure and concept.
As an infrastructure engineer, I seek the simplest effective solution to a problem with a minimum of negative consequences. What will be durable and effective over the long term? Tech solutions to urban challenges are often a Rube Goldberg machine, a fun but unnecessarily complicated approach to solving challenges with more direct solutions.
As a lawyer, I do the same. On the one hand, there are the futurists of law who believe that algos can remove bias from our systems and technology can expedite our work, freeing up time to either make more money or serve the poor, according to whether they want us to pay for the tech directly or want government to pay for it.
It’s already been more than a decade since lawyers started believing in the future of a paperless office, which is good for the environment and less expensive, both in hard costs, like paper in ink, and real estate, where old files are stored. When you go to court, you plug in your technology device of choice into the newly fabricated courtroom of the future and your chart and graph appear on a big screen for the judge and jury.
Ever been in this magnificent, newly-built courtroom of the future? Does the outlet on the defense table work? Is the wifi down, or merely inadequate to handle the demand? And when you plugged in and nothing appeared, what did you tell the judge, the jury, as they sat and waited? Then there’s the nasty incompatible program, the device conflict, the failed but ubiquitous, “I don’t know why” that the IT guy in a Pink Floyd t-shirt says.
The beloved legal futurist, Richard Susskind, called it when he said, long ago, that email was the future of legal communication. And he was right. But he hasn’t been right about anything since, even though legaltech conferences continue to ask him to be their keynote speaker, while griping about lawyers being averse to technology.
Rather than chasing the newest shiny smart-city technology, we should redirect some of that energy toward building excellent dumb cities — cities planned and built with best-in-class, durable approaches to infrastructure and the public realm. For many of our challenges, we don’t need new technologies or new ideas; we need the will, foresight and courage to use the best of the old ideas.
There is a word in there that could easily be missed by someone skimming over the paragraph: durable. Our world is becoming increasingly disposable, use it and when it fails, throw it out and get a new one. We accept failure as natural and inconsequential, and yet for the people for whom the law fails, it’s a big deal.
As new technologies infiltrate the law, new modes of failure are being created. Facial recognition technology, for example, is nowhere near as good as the TV shows pretend it is, and yet it starts the ball rolling that brings a SWAT team crashing through the door. Same with familial DNA, which might be close enough to place the culprit within seven degrees of Kevin Bacon, but when they point guns at your tweens (just in case), a puppy might run out and yap, setting off an unfortunate event.
And what of the dreaded, yet beloved, algorithms that will be used to Minority Report criminals, set bail, fix sentence and, perhaps, tell us who’s lying? It will, in the “smart” mind, eradicate discrimination and achieve the “justice” that we know has long eluded us, and who doesn’t think that’s our better world?
Except that big data and empiricism is telling us what we don’t want to hear, what we refuse to believe. Some people are poor because they’re lazy, not oppressed. Some people are just venal. Some are uneducated because our conflicted fantasy of inclusion has denied them inclusion in the mainstream of accomplished society and left them as perpetual outsiders.
Data doesn’t give a rat’s ass what we want to believe. Technology fails constantly, which we’ve assimilated as just an unfortunate fact of life. Yet we believe that the courtroom of the future will be fabulous because it’s shiny and new. This isn’t to say that “smart” tech, “smart” reforms, “smart” data, should be rejected. It’s to say that, sometimes, the smart future is based on dumb durable systems, and we would be far better off putting our efforts into making them better than coming up with magic solutions based on the newest, shiniest promises of Mr. Goldberg’s ironic contraptions.