Building trust in the digital era: achieving Scotland's aspirations as an ethical digital nation

Digital Inclusion

Objects of Trust:

Fairness: Is it accessible to, and usable by, everyone who could benefit?

Freedom of Choice: Would not using it prevent me from doing important things?

What is Digital Inclusion?

A core requirement for Scotland to become an Ethical Digital Nation is to address digital inclusion.

Digital inclusion means that people have the capability to use digital tools for things that will benefit them day to day and in the long term. This includes making sure that people have access to the right tools and technology, as well as the ability, confidence and training to use these tools successfully. A digitally inclusive society is one where the benefits of technology are available to everyone. It also means that digital tools must not exclude people from social opportunities to flourish.

Digital inclusion is an important requirement to be able to participate in society. More and more private and public services are now turning to self-service digital first, meaning that alternative options, such as paper based or in person, are rapidly becoming unavailable. Organisations are assuming that users are able to conduct everyday activities online, ranging across all types of activity, from accessing public services and education, conducting business, banking, shopping and socialising. This can be beneficial as it means many people are now able to access and interact with digital services more quickly and efficiently than they were before, saving both time and effort. However, the move to digital first could also have quite serious consequences for those that cannot, or do not want to, connect digitally.

It should be noted that there are platforms that can be enabling for people on low incomes, such as freelance cleaners using booking platforms to manage their schedules and maximise their income, demonstrating a positive use of digital technologies by users.

Digital inclusion, as highlighted as a priority by the Public Panel

The move to digital has been largely positive for lots of members of society. It is easier and more convenient to access the services we need at the touch of a button. Digital technologies have been an exciting and inspiring source of opportunity, and a positive impact on how we live our lives.

Having reliable Internet access opens doors to social and economic inclusion. For many of us work, family, play and learning occur in hybrid forms both online and in person. As technology continues to move at a rapid pace organisations are working hard to ensure that their digital strategies and services offerings are effective, user friendly and encourage productive online engagement.

Being digitally inclusive is an important factor in achieving full societal inclusion. As such, reliable and safe digital access is deemed a necessity in everyday life. Strengthening digital inclusion strategies can help us to reduce existing inequalities in our society.

Some factors that will help Scotland to foster a digitally inclusive society are:

• Helping people to acquire the skills, knowledge and confidence to navigate the digital and hybrid spaces and processes, including in the workplace
• Ensuring that secure and trustworthy digital identity and security frameworks are adopted by all public-facing commercial and government services
• Securing access to tools and infrastructure, including broadband and mobile coverage and digital devices such as phones, laptops and PCs
• Ensuring that alternative options are available for essential services and that real personal support is available to help those who struggle with self-service online services, or who are disadvantaged by not having access to the digital tools that most of us use.

“If Scotland wishes to become a Digital First nation, then including everyone (or offering the opportunity to everyone) is vital.”

National Digital Ethics Public Panel Insight Report, 2021, P. 21

Case Study:

Online courts

Prof. Burkhard Schafer

COVID-19 forced legal systems around the globe to move at least parts of their court procedures to an online environment. The use of online courts had found vocal advocates since the turn of the century, not just, or even mainly driven, by the need to reduce the costs of the administration of justice, but as an ethical demand to achieve several aims of the justice systems in a better way than physical courts are able to. However, there had also been significant concerns, from very specific fears of negative implications for procedural fairness to more abstract concerns, such as the importance of solemn and dignified procedures to ensure public respect and acceptance of the justice system. These hypothesised concerns, together with the natural inertia of the justice system, prevented online proceedings going ahead for a long time. The pandemic succeeded where previously, academics, NGOs and law reformers had failed.

The focus of this section are online courts and online proceedings, that is legal proceedings where the parties participate remotely and mediated by technology such as Zoom, Skype, Teams, and via mobile phones, laptops or other hardware. The discussion of online courts in this sense is often combined with a demand for better use of intelligent technologies, 'legal AI', sometimes with a view of automating parts of the litigation process. These ideas for 'enhanced' online courts will only be touched upon, though in the recommendations, it can be argued that some of the new problems that online courts can bring can in turn be mitigated by better use also of 'smart' technologies.

In particular, there has been hope expressed in the literature that online courts can increase access to justice.

This can happen by reducing barriers to access:

• A reduction in direct and indirect costs on the parties (including time and opportunity costs, such as the need by parties and witnesses to travel, arrange work or care commitments around the trial schedule etc.).
• Reduction of physical barriers that affect citizens with a range of disabilities.
• Creation of curated and sharable accounts of judicial decision making for the wider public, for instance a video recording of the decision with auto-generated subtitles. In this case, access to justice and the principle of open justice are both served.

'Enhanced' online courts in addition might provide new forms of legal support for laypeople who can’t afford or are otherwise prevented from using, professional legal advice, for instance by having documents automatically checked for completeness before the trial commences, or submissions auto generated based on their input of facts. This can support the principle of equality before the law.

Other possible benefits with ethical salience include:

• More efficient and as a result faster decisions, speaking to the principle that justice delayed can be justice denied.
• A more diverse legal profession that is more representative of the community that it serves, with arrangements more accommodating to childcare or other care responsibilities, or more accessible facilities for lawyers with disabilities.
• Reduced costs for the taxpayer, and with that the ability to support other parts of the justice system.
• A more positive emotional experience of the judicial process and a less intimidating atmosphere, which in turn can lead to more accurate decision making. For some parties or witnesses, being in the same room with the other party can be intimidating and effect their behaviour detrimentally.

With the experience from the COVID-19 years now available, a rigorous quantitative evaluation of the risks and benefits, and the impact they had on sentencing and decision patterns, is now both possible and necessary. Considering the impact that COVID-19 has had on the composition of cases that were decided (e.g. prioritisation of more serious cases, drop in some offences etc.), have there been statistically significant changes in decision patterns?

Secondly, how was the quality of the interaction with the justice system perceived by the participants? First evaluations indicate that professional lawyers were overwhelmingly positive about online hearings on more technical and procedural levels. On the other hand, there are reports of citizens who found the experience highly distressing and undignified – for instance hearing over a weak connection in a family court case the fate of one’s children decided, without the emotional support a physical environment would have provided.

Even if, as the data seems to indicate, the experience was overall positive and few of the previous concerns materialised, the rule of law ideal requires that any future use outside an emergency context happen within a formal system of legal rules. These rules must be applied consistently, and provide appropriate remedies and avenues for appeal and redress in situations where the technology fails. If an online hearing is from an access to justice perspective helpful for one party, but disadvantageous for another, clear rules are needed to resolve conflicts.

While considerable discretion by the presiding judge might ultimately be necessary, these too need to be grounded in more general legal and ethical rules.

The digital infrastructure necessary for online proceedings that adhere to the rule of law will involve significant design decisions that are value-laden. This includes minimising inherent unfairness to or exclusion of users with less advanced technology, from bandwidth to processing speed of their devises. Similarly, the affordances of the digital court (e.g. how much help ambient AI provides to less legally skilled users, and how 'forgiving' the system is towards user mistakes) raise deep questions about procedural fairness and inclusion, decisions that can’t be left to commercial software developers at all, as they touch upon the very core of the notion of a state under the rule of law, and require full and open debate.

How is ‘Digital by Default’ Widening Existing Social Inequalities?

The COVID-19 pandemic has shown some of the real consequences of being digitally excluded. As the nation went into lockdown, online services became the only option for some of the most basic activities. Work meetings turned into online conference calls, classrooms turned into online learning spaces and even social gatherings were carried out via some form of online connectivity. Having to rely so heavily on digital devices during this time has painted a stark picture of the impacts of digital exclusion – exacerbating the isolation and increased inequalities felt by those who are not digitally active. A lack of digital access has a social cost^[13].

A common assumption is that the main demographic that suffers from digital exclusion is the older population, because they have not grown up with digital technologies, it was not part of their working life, affordability and lack of support. However, many factors can act as barriers to digital access across a wide range of demographics. Some of these include:

• Disposable income – can I afford broadband and appropriate devices?
• Competency – do I have the skills to engage with confidence?
• Disability – are digital tools and spaces designed with accessibility requirements in mind?
• Competency in English as a written language – are there inclusive options for non-English speakers?
• Access to reliable data and broadband (due to geography) – is there good coverage in my area that allows me to interact online?
• Education – do I have an awareness and understanding of the importance of digital engagement?

Often those who require digital access the most are the ones that struggle to find it. Not only can digital exclusion have a negative impact on wellbeing, but it can also mean that people may miss out on important information and opportunities. The Internet is becoming the key way to engage with vital establishments, including the government, local authorities, banks and many more. If digital inclusion is not addressed, people may suffer from:

• Fewer employment opportunities Less access to education
• Being information poor
• Not able to access necessary services
• Having to pay more for goods and services^[14] (Snook, 2019).

It is clear that digital inclusion is not just about technology. Geography, background or ability should not be a barrier to successfully getting online. To ensure that everyone is able to access the benefits of a digital society, there are a number of key issues that should be addressed which can help everyone get online and have the confidence to engage.

The National Digital Ethics Public Panel Insight Report (2021) highlighted three priority areas where citizens felt that action is needed to achieve a digitally inclusive Scotland.

These are:

• Ensuring fair and equitable access to affordable digital technology and data
• Removing barriers so that all of the population are able to access skills and development opportunities that will enable them to participate online safely, productively and with confidence
• Ensuring that those who are not digital skilled (or choose not to engage digitally) are still able to access services that are provided as ‘digital by default’ without being disadvantaged.

“It’s all very well to be told, “You can access that information online”, but if I can’t get decent broadband where I live, how does that help me?”

National Digital Ethics Public Panel Insight Report, 2021, P. 20