IEEE Technology and Society Magazine - March 2022 - 67

search, specific pieces of data within a document
trove were difficult to find. Thus, even though sensitive
information (e.g., social security numbers or
financial information) routinely appeared within
court filings that were nominally public, as a practical
matter, this information was reasonably protected.
It would have been difficult to exploit private
data buried amidst hundreds of physical pages
located in a distant courthouse.
The move from paper to electronic storage of lawsuit
documents represented not only a fundamental
change in technological design, but also a change in
the values that the system promoted. With the new
electronic, networked system, it became easier to
remotely access and search for private information
previously obscured within paper. Putting the merits
of these choices aside, this example illustrates
that system design decisions made for engineering,
business, efficiency, usability, or other functionality
reasons have often had the side effect of subtly (and
perhaps unintentionally) advancing certain values
(e.g., accessibility of government information) over
others (e.g., litigant privacy) when a technology is
widely deployed in society.
These embedded-value effects are especially salient
when they occur in legal technological systems.
This is because the issues at stake in legal contexts
are often significant, including the possible deprivation
of liberty, property, or security. Moreover,
because they are often used by governments, legal
technological systems with embedded values can
impact large portions of the population. Additionally,
societal values embedded in legal technological
systems can be difficult to detect absent close
scrutiny. In particular, such systems can appear to
be superficially neutral even when there are value
preferences subtly embedded in their architecture.
This can be especially pertinent when systems
automate decisions about legal rights that were
previously made by human decision makers. When
human actors make decisions, it is often clear that
they are explicitly promoting certain values over others,
whereas the social value impacts of widespread,
automated decisions may go unnoticed [6], [13].
These embedded value issues can become compounded
in legal AI systems-legal technological
systems that employ machine learning, formal rule
representation, and other artificial intelligence
techniques-due to the subtle nature of some of
these approaches. Thus, the use of these artificial
March 2022
intelligence systems in legal decision making can
raise novel, and perhaps less familiar, issues of
embedded values that deserve particular attention
compared to AI systems employed in other societal
contexts.
Values embedded in technology
Overview of embedded values
This part will introduce some basic themes from
the " embedded values " literature before applying
these concepts to artificial intelligence within law.
Winner [28] was one of the earliest scholars to
observe that social values can be subtly embedded
within superficially neutral technology. He provided
the following (perhaps apocryphal) example of a
technological design that privileged certain social
groups over others [4], [28]. According to Winner
[28], in the 1930s, New York urban planners purposely
engineered suburban highways with overpasses
that were too low for buses to pass under. He
suggested that this design was intended to inhibit
low-income and minority citizens, for whom bus was
the primary mode of transport, from reaching the
suburbs [28]. Winner argued that such a design had
the effect of technologically embodying the value
preferences of certain societal groups (suburban
residents) at the expense of others (low-income and
minority urban residents).
Later, Lessig [12] observed the relationship
between technological design and social values in
the context of the Internet. Lessig [12] recognized
that the engineering architecture of a technological
system-what the system is designed to allow or
disallow-can be thought of as analogous to legal
regulation. He noted that while laws explicitly and
overtly regulate society, technological design can
similarly affect societal behavior or values, but often
in less obvious ways. For example, consider the
technological design of the Internet and the social
impacts of technical choices. At the outset, the
designers of the Internet faced numerous engineering
decisions-such as whether to provide strong
anonymity for users [8], [12]. On the one hand, an
engineering constraint built into Internet protocols
requiring technological anonymity may have had
the effect of fostering certain social values, such as
free speech and liberty of conduct in the use of the
web. However, such a design would have come at
the expense of other values-such as facilitating
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IEEE Technology and Society Magazine - March 2022

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