Casting a “wide and imperfect net”: Legal research platforms as data brokers for government surveillance activities

Citation:
Sarah Lamdan, When Westlaw Fuels ICE Surveillance: Legal Ethics in the Era of Big Data Policing, 43 N.Y.U. L. Rev. L. & Soc. Change 255 (2019), https://perma.cc/42HV-9AW6 .

To be completely honest, this is a topic I have been avoiding reading or thinking very much about, although it has been on the forefront of a lot of law librarian minds for well over a year. However, as more and more lawyers, law students, and librarians organize a protest movement against what is happening, the more compelled I felt to educate myself about it.

So here we are — it’s time to talk about the relationship between the parent companies of Westlaw and Lexis and the federal government, notably the Immigration and Customs Enforcement agency, as it has developed in the area of immigration surveillance.

I have already written about my complex feelings about immigration law in this blog before. But until recently, immigration enforcement was something that I have never really given much thought to in anything other than a matter-of-fact way, as follows:

  • The government has policies and agencies and people to enforce the country’s immigration laws.
  • These people probably have to swear an oath to uphold the law.
  • The work that these people do, to the best of their ability and (the kicker) within the bounds of the law, is to prevent undocumented immigrants from entering and staying in this country illegally.
    • (I am not naive and I know that this is not always true, but having faith that public servants generally do the right thing helps me get through the day.)
  • Our country, as a sovereign nation, has the right to control its borders by creating and enforcing immigration laws.

Of course, as a good liberal, I read the stories in the New York Times that show the emotional side of immigration enforcement and the human suffering it creates, and that I assumed are intended to develop in their readership a sense of compassion toward undocumented immigrants.

But there has always been a manipulative nature about those appeals that rubbed me the wrong way. If people knowingly break our laws, are we obligated to show them compassion, to give them a pass? Am I a bad person if I don’t feel an obligation to do so?

And then, a few weeks back, I read and blogged an article in which immigration laws were viewed through a larger lens of criminal law theory. It compelled me to ask myself about the relative nature of the harm vs. the punishment. If an undocumented immigrant is an otherwise law-abiding citizen who contributes to our society in a positive way (the economy of a place like California runs on the backs of undocumented immigrants, and you’re kidding yourself if you don’t think that is true), is it proper that the government seek them out, arrest them, confine them (often under harsh conditions), and deport them? Is that fair to anyone involved? Is it a valuable use of the government’s resources? That is where the water starts to get murky for me.

This brings me to today’s article by Sarah Lamdan. I met Sarah at the American Association of Law Libraries conference this past summer in Washington DC, and was impressed by her intellect, her work ethic, and her compassion for social justice issues. Sarah’s article has been making the rounds in the law librarianship world lately, as it has become more and more clear that the top two companies in legal information databases, Thomson Reuters (Westlaw) and RELX (LexisNexis) have entered into the business of data brokering, and that one of their number one customers is the Immigration and Customs Enforcement agency of the federal government.

What’s the big deal about this? The problem is that these companies:

(a) collect billions of pieces of data that include personal details about people, and

(b) develop tools that can be used to analyze that data and extract information and prospective trends from it about who and where people are and what they are doing.

The companies then sell the data and the analytics tools to government agencies like ICE, which uses them to do things like “track and locate noncitizen targets” (p. 259) and “implement policing schemes that profile entire classes of people under the guise of gang affiliation or drug trafficking.” (p. 266) The problem with this setup? This information has been shown to “contain many errors,” especially when it comes to claims of gang involvement. (p. 267)

HOLD UP RIGHT THERE. I now have a whole new way to assess this issue.

To offer a comparison, years ago, I was in favor of the death penalty. What can I say? I grew up in a conservative family in Southern California in the 1980s. Critical thinking was not exactly encouraged or rewarded. Then I went to law school and learned/realized the following:

(a) The criminal justice system is an imperfect system run by humans who make mistakes.

(b) A mistake in a capital punishment case cannot be undone once the defendant has been executed.

(c) We live in a very punitive and vindictive society, which is not doing us any favors when it comes to decreasing crime, violence, and poverty, especially in communities where people of color and people who are poor live.

(d) Prosecutors can be biased, especially against people of color and people who are poor, and some may make their prosecutorial decisions, including whether or not to charge a defendant with a capital crime, accordingly.

(e) I am not comfortable with the government intentionally killing people on my behalf.

After you take a hard look at a system that you have believed to be just and correct for your whole life, and you see how shitty and corrupt it is and how it unfairly stacks the deck against the most marginalized people in our society, it’s hard to be OK with that system anymore. That is how I feel about the death penalty today, and it is becoming more and more how I feel about immigration surveillance.

As Sarah points out, the current federal government highly prioritizes ICE’s work: “In 2017 the Trump Administration issued an executive order directing the agency to … prioritize all undocumented immigrants for removal, including those with no criminal history.” (p. 268) While, as Sarah acknowledges, the current ICE surveillance system was developed under President Obama’s administration, under its current iteration, “ICE agents are a ‘bullying squad,’ rounding up immigrants and engaging in ethically fraught practices.” (p. 268) This can be done thanks to employing surveillance tools in a predictive, rather than a reactive way; specifically, they use “artificial intelligence and computer models to forecast whether people who have no criminal record or ties to criminal activity may nonetheless commit a crime in the future.” (p. 281)

What? There is NO WAY that these tools can perform this task in a way that does not reflect the bias of the people involved in creating and developing them, and the connection between artificial intelligence and bias has been observed again and again and again and again.

Why are the parent companies of Westlaw and Lexis doing this? Look no further than the bottom line: as sales of print and electronic legal resources slow, they feel compelled to find other areas that can, well, pick up the fiscal slack. These companies have sophisticated data tools that have been developed and sharpened by decades of analyzing legal and scholarly data. Repurposing them in in this way, based on the needs of real customers who are willing to pay a lot for them, makes economic sense. In the words of a RELX executive, this line of business corresponds perfectly to the company’s “organic growth strategy.” (p. 276)

It truly boggles the mind that Thomson Reuters and RELX are are justifying this activity by saying that they need to make more money. Indeed, the Business Leaders page on the RELX company website, which I took a look at to assess the demographics of the people who are making the company’s decisions (mainly white and male, just like those at Thomson Reuters), includes a banner across the top of the page showing its market capitalization figure of nearly $50bn. Thomson Reuters clearly is not hurting financially either, and reported a “higher-than-expected quarterly operating profit” in October 2019. That same article also discussed the company’s recent sale of its “majority stake in its financial data business,” which netted the company $17bn in proceeds. These companies, clearly, have plenty of money, which makes it all the more infuriating that they are “unapologetic about their lucrative work with law enforcement, including the work they do for ICE.” (p. 283) Furthermore, under the circumstances, of course they are “remain(ing) silent about their social responsibility standards.” (p. 283)

How does this impact lawyers and law librarians? The problem is that Westlaw and Lexis are the two best electronic tools for researching law in this country, and have “cornered the computer-assisted legal research market.” (p. 285) As a law librarian, I do not know of any tools for checking the citing references of US case law and statutes (called “citators”) that are superior, or even equal, to Westlaw’s KeyCite and Lexis’s Shepard’s. I do not think it is possible to determine whether a case is still “good law,” or to find out how a statute has been interpreted through judicial opinions, without using one of these tools — at least not in a cost-effective and sufficiently reliable way. Therefore, I believe that lawyers are required, ethically, to use them, and that we, as law librarians, are required to teach law students how to do so.

However, as Sarah rightly points out, using them may lead lawyers to violate other ethics rules — specifically, rules involving client confidentiality and conflict of interest. As Sarah asks, “Are Westlaw and LexisNexis keeping records of lawyers’ research and, through their parent companies, making it available to their law enforcement clients? And if so, does exposing your legal search terms constitute a breach of confidentiality?” (p. 287) In fact, Sarah warns that “the legal community should expect that the information they put into their Westlaw and Lexis accounts, including search histories and saved documents, are not confidential … (and that it) could become part of ICE’s surveillance data trove, linking (their) clients’ personal data to (their) search history and research and placing (their) clients’ safety in jeopardy.” (pp. 291-92)

What is the solution here? Sarah suggests that “something as harmful to clients as police surveillance should be walled off from the legal profession, both personally and financially, and lawyers should opt to use legal research systems that protect sensitive client information.” (p. 289) I wholeheartedly agree, and hope that those systems are in the works and become available to us sooner rather than later.

Finally, I think that law librarians who work in academia have an obligation to think critically about this topic, and to make students aware of the potential pitfalls of using these databases. Can we change anything here and now? I sincerely doubt it, given the scope of the issue and the amount of money involved. But maybe the next CEO of Westlaw or Lexis will be sitting in the chair across from us in a research consult, will remember our conversation about this issue, and will consider more than just finances when called on to make a business decision that prioritizes money over ethics and fairness.

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