The COVID-19 pandemic has been a period of crisis and adaptation for court systems, as it has been for many public services. As so often happens in times of crisis, the legal system was forced to adapt in ways that were previously dismissed as impossible — such as the shift to remote hearings — often without the time, resources, or capacity to ensure that those adaptations upheld the legal systems’ core tenets - let alone conduct due diligence or consider the long-term consequences. As a result, a number of courts have gotten into both internal and external disputes over the nuances of court technology, often in ways that have an irreversible, unacceptable impact on litigants and their fundamental freedoms. Over the course of the pandemic, NCSC has worked with philanthropic funders and expert partners like Digital Public to create clear, adoptable guidance for courts forging new and unanticipated relationships with technology and digital vendors. 

The digital transformation of court systems is a challenge that predates COVID-19, of course, and current questions are not limited to the implications of video hearings. In any court system, the interactions between the system and its users (whether customers, defendants or inmates) determine the character of the justice those users receive. And in countless jurisdictions across the United States and the world, people already face  enormous gaps in equity and access to justice—from urban-rural divides, to affordability of legal services, to broader issues of law enforcement, safety and trust. In every one of these areas, new uses of technology can and do exacerbate existing challenges and ongoing harms, and often technology introduces an additional problem: the new role of software companies in the relationship between courts and people.  

Because the relationships between courts and technology vendors are defined in contracts, contract terms and contracting decisions are an essential and underdeveloped forum for digital governance. Since many vendor contracts are boilerplate documents, most technology contracts are not designed to protect — or even consider — the unique relationship between courts and individuals. Furthermore,  such contracts rarely give a court — or any purchaser — the right to make technology companies fix the technical and non-technical problems that arise. Courts, unlike many other forms of public service, operate under the idea that ‘justice is local,’ and thus rarely work with formal standards or federal support when it comes to defining and contracting for technology services. Most courts also lack the resources — or the mandate — do not have are busy adjudicating cases and don’t have spare resources to develop the legal and technical expertise in to navigate complex, often predatory, technology markets or in - let alone the policies, institutions, or software requirements that could necessary to protect the users and communities impacted by new digital y people using or affected by the resulting digital that use the tools they develop.  

To help NCSC equip court systems facing these challenges and increasing risks, Digital Public created  a resource guide for courts seeking to revisit several of the contracts that most commonly govern digital services. The guide articulates common problems in digital services contracts, including common examples such as court management systems, prison management systems, and the emergence of data brokers focused on commercializing court data. It focuses on three common forms of technology contracts, highlighting the provisions that warrant new scrutiny as courts work to regain some control over service provision and service design. 

As in many other industries, , the rapid adoption of technology has forced courts into a reactive stance, adopting tools and signing contracts that will, at a minimum, undermine their core responsibilities to equal service delivery. 

But it doesn’t have to be that way. Digital Public centers our legal advocacy on support for the professionals, institutions, and infrastructures that uphold the legal system’s fundamental integrity, amongst a generational transition accelerated by emergency. Partners like NCSC are giving us the opportunity to help the system enlist technology in its stated goals and social role – and not to compromise that integrity to suit the tools or the vendors. 

This guide is the next step in a long-term focus on justice and is intended to foster a fuller conversation, for NCSC, its many partners, and the wider field. Knowing the right questions to ask – and asking them – can be all that’s needed to reset and reshape the relationship between courts and their technology providers.

https://www.ncsc.org/__data/assets/pdf_file/0029/76754/Contracting-Digital-Services.pdf