The Elusive Mediation between Law and Technology. Undetectable Errors in ICT-Based Judicial Proceedings

While digital platforms deliver a growing number of public services, their inner features and functioning are still unclear. Building on two case studies in which ICT-enabled judicial procedures led to enduring and un- detected faults, the paper discusses how the mediations between law and technology can lead to unobservable and potentially disruptive errors. Such errors are discussed by considering two distinct and interdependent mecha- nisms: technical black-boxing and legal sealing. Technical black-boxing pro- vides the functional closure of the system, which remains visible just in terms of input and output. Legal sealing is the legal validation of the technical ap- paratus that is needed to make technology-mediated judicial action effective. The paper analyses how the technical and legal closures generated by the two mechanisms make unquestionable relevant components of the digitally mediated procedure. Both mechanisms are needed for digital judicial procedures, but in many cases they cannot be fully implemented due to the technical and institution- al complexity involved in the mediation. If so, digital mediations are even more elusive, increasing the likeliness of undetectable errors nested either within the technical black-box or the organizational arrangements around the black-box. The interplay of technology and the law generates opacity and grey areas where new forms of accountability are needed to reassess and allocate public responsibility in judicial and administrative practices.