There are parallels between the reaction to terror attacks and other threats and the handling of e-disclosure for litigation. Collections of masses of data become not merely a substitute for information but places to lose it, and the real objective is missed. The value of thinking gets lost in the mechanics of data collection.
I am not averse, as you will have noticed, to drawing parallels between those who govern us and are responsible for our security and welfare, and many of those who give disclosure of documents. An often obsessive regard for rule and regulation is unmatched by any great application of thought, and data is collected without considerations of expense or inconvenience or with any regard for how it might best be used as information. The collection of the data can become an alternative to the real objective, and the availability of technology often becomes the driver – since we can now collect so much more data, the collection itself becomes the objective, obscuring the actual reason why the data was required in the first place. Quite quickly, the data becomes not a source of information but a substitute for it or, even worse, the place where it is buried.
In the context of e-disclosure for litigation, I am as keen as anyone (and perhaps keener than most) on both the rules and the use of technology. I take care, however, to emphasise that both are subordinate to the objective of achieving justice. The Civil Procedure Rules begin with the overriding objective, whose function is expressed in its name; it overrides everything else. The fact that we have technology capable of handling vast volumes of data does not mean that we must feed it everything we can find – that does not just cost money (and unnecessary expense is a bar to justice) but actually obscures our purpose by concealing the things which matter. My mantra here is that the most important technology lies between our ears, and that both the obsessive imposition of the rules and an excessive reliance on technology causes disengagement of the brain and the missing of the point.
This is illustrated by the ease with which the latest would-be airline terrorist beat the system. That system depends largely on the collection of data and on the imposition of regulation, expense and inconvenience, but those who manage it appear to have lost sight both of the objective and of the value of thought. I spend more time than most sitting in thin-skinned metal boxes at 30,000 feet with hundreds of strange people. I do not in the least mind having to provide details about myself and willingly submit to airport security checks as the price for knowing that my fellow-travellers are doing the same. For the most part, the front-line security staff do their work reasonably graciously and efficiently and I am sure that much goes on behind the scenes which helps ensure our safety in the air.
I am equally sure, however, that more effort than brain goes into it all, and that the knee-jerk reactions of the authorities since the most recent terror attempt owe little to any coherent thought. The efforts are also undermined by fears about personal profiling which are at odds with the risk and which deny the authorities a filter which would make intelligent use of information to allow focus on the things which matter. Those of you who are on top of e-discovery techniques will instantly see the parallels here – if we were to treat every document as equal at the top of the filtering process, we would never get to the end, which is how I often feel as I stand in line to get out of one country and into another.
Those who travel to the US must give over-lapping information about themselves at least four times – on the original registration with ESTA (Electronic System for Travel Authorization), when updating ESTA with details of a specific visit, to the airline when checking in, and on the green form completed on the plane. Amongst the critical questions (to be answered on three of these occasions) is one which invites you to admit that you took part in Nazi atrocities between 1939 and 1945. I can see that this provides a great deal of data, and much paid work for somebody in addition to my unpaid work in filling in the bloody forms, but I cannot see that it does much to impede the likes of Abdulmutallab. His name was already on a watch-list as having known radical leanings; he bought his ticket with cash in Ghana, flew from Nigeria with no luggage, and had visited countries linked to terrorism. Yet he was treated by airport security as no different from a family going on a ski-ing trip. The security process for him would be identical as that for a white, middle-aged, middle-class businessman who has lived in the same English city for 30 years, has had a professional qualification for the same period, displays no stronger political or religious convictions than the others of his age and class, buys his ticket with the credit card he has had since credit cards were invented, and travels regularly to well-publicised conferences (that’s me, in case you wondered). We all stand in the same lines, and go through identical time-consuming processes.
The point is not just the time and effort which the authorities devote to treating us as all the same, but the much increased potential for missing the detail in the mass. We turn e-discovery data into information not just by turning raw processing power onto it (the equivalent of the form-filling and the long queues) but by using thoughtfully-derived criteria to identify what to keep or discard and what warrants closer attention. The present airport security system is equivalent to reading every document.
We avoid this in e-discovery by profiling, that is, by considering the factors which affect a selection and giving them weight in search criteria. No one of the factors listed above – travelling with children, racial origin or professional status, method of payment or known travel history – is conclusive, but sensible use of permutations of them would allow more attention to be paid to higher-risk passengers. The problem is the authorities’ fear that they will be accused of racial prejudice if they include racial origin as one of their criteria. They will deny this, and would say that overt focus on that one characteristic will simply encourage the recruitment of white, middle-aged solicitors as terrorists. We deal with that in e-discovery by random sampling of both included and excluded material. We also recognise that any attempt to treat everything as equally risky (to read every document or submit every traveller to a full body-scan) will in fact increase the risk of missing what matters.
Political correctness turns up in the domestic context as well. I read an account recently by a journalist who had been stopped and searched by a policeman. He was politely cooperative with the search and politely uncooperative with the ensuing form-filling whose purpose, he concluded, was merely to ensure that Mr Plod gave equal attention to little old white ladies and to hoodie-wearing youths of any colour. To PC Plod, the fear of being accused of racism outweighs the waste of resources implicit in this approach. That fear is based on Plod’s history of pulling in people for the offence of “driving whilst black” and for arresting non-whites at every opportunity in order to get their DNA on their controversial database. One is glad to find them sensitive on the point, but not if it means that police time is spent questioning unlikely suspects and filling in forms about them instead of focusing on real risks.
This brings us to another aspect of all this, the personal targets and ambitions of those who are responsible for devising the checking procedures. I am sure that the Home Secretary, Alan Johnson, is genuinely concerned to prevent crime and terrorist attacks, but he is no less concerned with being seen to be doing something – anything – which shows that he takes it all seriously. He is (how can I put this?) no great thinker anyway, but his political antennae require him to show an active response. It may be useless; it is almost certainly, in this case, counter-productive, in that it increases the data to be processed and prolongs the time for which masses of people are crowded together at the security barriers, but Johnson would see it as political death to discriminate between different types of people. Common sense and practicality have become subordinated to political correctness.
We see the same with the recent furore over child protection. Just as every plane passenger is thought equally likely to be a terrorist, so every adult is assumed to be a paedophile. At one level, this merely results in stupid people over-reacting without discrimination between hazard and risk, with no regard to balance, and with a hazy understanding that the law bans everything; a school banned parents from sports day last year because “if we had let parents in, they would have been free to roam the grounds”, as the spokesman put it; I went to a school concert recently at which we were solemnly (and wrongly) told that taking photographs of children was illegal; a retired police superintendent meekly complied with a demand that he delete photographs of his grandson playing football. This obsessive focus on things which do not matter takes the eye off things which do; a lazy assumption grows up to the effect that the presence or absence of a name on a list is conclusive, but the data collection task becomes too large to be useful in any sense related to the objective.
Worse still is the motivation of those who drive these activities. Politicians need to be seen to be active, and socialist politicians see state intervention as a duty and a benefit; policemen like to have their powers extended; state servants, from head teachers down to security guards, are made to feel important as they execute their ever-wider range of duties; the readers of the Daily Mail feel empowered as their every whine is translated within days into policy. The worst, however, are the civil service bureaucrats and the quango-rats who slither behind the skirting boards and beneath the floorboards of government and whose personal ambitions are advanced with every new restriction. Those ambitions may be the extension of a policy in which they believe or may bring jobs and power; ideally, they bring both.
Sir Roger Singleton, the man who heads the new Independent Safeguarding Authority was previously the CEO of a large children’s charity, running what used to be called orphanages. His experience there pre-disposes him to assume that every child is at risk and that authority in its various forms is needed to protect them. In addition, he has a knighthood, a fine salary, generous pension provision, a large staff and his name in the media. It is unlikely that he will play down the risks which his Authority was set up to control, yet the form-filling is unlikely to safeguard any child – it would not, for example, have saved the two girls murdered in Soham in 2002 whose deaths provoked all this useless activity. Sir Liam Donaldson, the recently retired Chief Medical Officer for England, provoked derision with his incessant scare-mongering (how many thousands of us were going to die of Swine Flu in 2009?), but the cost of following his every hare and indulging his self-important pursuit of the limelight is not measured solely in wasted cash – what other and more useful initiatives were ignored in the process? A letter in yesterday’s Times spells out how pointless paperwork in the Probation Service takes resources from face-to-face involvement with offenders.
The themes running through all this are that the real purposes – fighting crime and terror, restricting paedophiles, allocating NHS budgets or seeking justice through litigation – are apt to get lost in thoughtless, knee-jerk reactions and in the personal motivations of those whose responsibilities and markets become enlarged with added responsibility. Those engaged in electronic disclosure | e-discovery are not immune from the suggestion that they make mountains out of molehills, and fame and fortune with it. The lawyer who collects all the data regardless of the type and scale of case, the judge whose order endorses that activity without regard to proportionality , and the software or solutions provider who sells a Rolls Royce solution for a Smart Car problem are of the same kind as the minister who imposes unthinking new restrictions, and are like the policeman, chief medical officer or child protection expert who think that “more” means the same as “better” when it comes to imposing restrictions or collecting data.
What is the call to arms here? What can we do to force a more reasonable balance between competing interests in any of the contexts referred to above, where we expect risks to be managed for us but do not like the price we are asked to pay for that in cash or in inconvenience? After all, “they” are the experts, and are assumed to have knowledge and understanding that we lack. Do we not elect our rulers, appoint our lawyers and instruct service providers precisely because they know more than we do?
Up to a point, perhaps. In the public context, our rulers have been shown to be flawed. The government is discredited, the bloated civil service is ripe for cutting down to size, and MPs have been shown to be greedy, self-serving and dishonest in relation to their expenses. The imminent election will compel ministers to take some notice at least of public demands if we keep nipping at their heels.
In relation to the conduct of litigation, the remedy is even closer at hand. Clients are in a position to impose terms on their lawyers; judges can use their powers to manage cases; lawyers can challenge service providers as to the scope and quality of what they supply and as to the cost of doing so. It is possible to inform oneself as to the risks and as to the costs of addressing those risks. We can criticise the steps taken by those responsible for our safety in the air as being excessive, inadequate or both, but only up to a point because the authorities have access to information which we cannot share. The same is not true of our lawyers or service providers or, if it is, that is the fault of those who instruct them.
I am sure there are lawyers out there who deliberately inflate the problem to be solved or the task to be accomplished in the same way as politicians, policemen and civil servants exaggerate the size of the fire so that they can claim credit for dowsing it. No doubt some service providers sell solutions which are over-specified for the task or which miss the target completely; they are no different from the public servants who talk up problems in order to get knighthoods, salaries and fat pensions for purporting to solve them. The closest parallel, however, between a botched e-disclosure exercise and one of these public sector database projects is a failure to relate the collection of data to the information which is needed. My examples above involve excessive or duplicated data collections which are not merely irrelevant to the problem but which actually reduce the chances of solving it.
It is obvious nonsense to treat every traveller as a terrorist when intelligent profiling would narrow the field and free up resources. Good document retention practice involves tagging for re-use the documents which have already been classified in order to avoid duplicated effort; if the same principles were applied to regular and acceptable travellers, resources would be freed up to focus on the rest. Treating the entire adult population as paedophiles until “proved” otherwise by an entry on a database is both flawed in principle (because it proves no such thing) and resource-hungry; it equates to treating every document as relevant until it is proved not to be so. Having policemen fill in forms about everyone they come across just diverts resources and attention from the minority who deserve attention; the semblance of diligence is no substitute for an intelligent assessment of priorities, whether you are identifying crooks or disclosable documents.
Ministers and civil servants are not good at proportionate responses. The culture of public funding requires them to scream for attention, and over-reaction is the usual result. Lawyers and their clients have commercial constraints which are lacking in government and which give a better focus on what is really important. Asking me to state three times that I did not engage in Nazi war crimes (and recording my answers), banning parents from sports day, and the laborious completion of stop-and-search forms is neither proportionate nor useful. Just as e-disclosure exercises require a constant assessment as to the value of every step, so government initiatives, particularly those pushed out in a hurry, need an overseer to stand back and ask the promoters to say of every new restriction “What does this do to advance the cause and what does it cost?”.