The Charter vs Wikipedia

The United States 8th Circuit Court of Appeals has ordered a review of an immigration decision based on the fact that the relevant decision-maker consulted this Wikipedia entry:

A laissez-passer (from the French let pass) is a travel document issued by a national government or an international treaty organization. When issued by a national government a laissez-passer is often for one-way travel to the issuing country. When issued by an international treaty organization it is often for employee travel on official business. Some national governments issue laissez-passers to their own nationals as emergency passports. Others issue them to people who are stateless, who are unable to obtain a passport from their own government or whose government is not recognized by the issuing country. 

This entry was relied upon to reject an applicant’s laissez-passer as proving her identity.

The Court of Appeals observed:

We conclude that the case must be remanded for further proceedings, because the BIA failed adequately to explain its conclusion that Badasa did not establish her identity. See SEC v. Chenery Corp., 318 U.S. 80, 94-95 (1943). The BIA did not adopt the entirety of the IJ’s reasoning for rejecting Badasa’s claim. Rather, the BIA acknowledged that it was improper for the IJ to consider information from Wikipedia in evaluating Badasa’s submission on remand, and the government does not dispute that conclusion here.

But what is wrong with Wikipedia? Amusingly, the Court of Appeal cited Wikipedia itself:

Wikipedia describes itself as “the free encyclopedia that anyone can edit,” urges readers to “[f]ind something that can be improved, whether content, grammar or formatting, and make it better,” and assures them that “[y]ou can’t break Wikipedia,” because “[a]nything can be fixed or improved later.”…  Wikipedia’s own “overview” explains that “many articles start out by giving one – perhaps not particularly evenhanded – view of the subject, and it is after a long process of discussion, debate, and argument that they gradually take on a consensus form.”…  Other articles, the site acknowledges, “may become caught up in a heavily unbalanced viewpoint and can take some time – months perhaps – to regain a better-balanced consensus.”… . As a consequence, Wikipedia observes, the website’s “radical openness means that any given article may be, at any given moment, in a bad state: for example, it could be in the middle of a large edit or it could have been recently vandalized.”… The BIA presumably was concerned that Wikipedia is not a sufficiently reliable source on which to rest the determination that an alien alleging a risk of future persecution is not entitled to asylum.

It’s not entirely clear to me why Wikipedia fails this standard, whereas (presumably) traditional encyclopedias pass. Is the Court applying the Supreme Court’s Daubert test to distinguish between trustworthy and untrustworthy expertise? If so, it seems to me that the Court of Appeal is being quite narrow-minded about what counts as appropriate ways of gathering and testing expert knowledge. Why are official publications (intermittently reviewed, written by a handful of people, not up-to-date, relatively immune from criticism) reliable, whereas Web 2.0 isn’t? What about that study (published in top-quality rag Nature) that suggested that Wikipedia is more accurate than Encylopedia Britannica? 

I imagine that this is a precedent for interpreting a similar question under the Charter’s fair trial right:

24(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

Arguably, relying on unreliable fact-finding by others is a failure to make an independent decision (on what, arguably, is a civil proceeding.)

Interestingly, Victoria has, on its statute books, a very unusual provision privileging computer-sourced information over other information:

55B(1) In any legal proceeding where direct oral evidence of a fact would be admissible, any statement contained in a document produced by a computer and tending to establish that fact shall be admissible as evidence of that fact, if it is shown that the conditions mentioned in subsection (2) are satisfied in relation to the statement and computer in question.

(2) The said conditions are- (a) that the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by any person; (b) that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived; (c) that throughout the material part of that period the computer was operating properly or, if not, that any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and (d) that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.

The terms of this weird provision basically permit a court to use (without any problems under the hearsay rule) information from a computer that is routinely used to gather information about ‘any activities regularly carried on… by any person.’ The literal terms would seem to cover most webpages that routinely record human activities, including Wikipedia and, for that matter, Charterblog. The source of the information does not matter!

This provision is actually a direct copy from a UK one that was enacted in the late 1960s. It has not been changed since! In some ways, this was quite a far-sighted provision, given that it anticipated that computers would be used to track human activities. But, of course, it is also hopelessly non-prescient in its expectation that such information would carry a stamp of reliability. (Presumably, the thinking was that computers are so expensive and awesome that no-one would ever dream of entering any information that was false!)

As near as I can tell, this provision is never actually used to admit such information. (Rather, it’s wrongly used to govern information sensed by computer equipment, such as ticket readers. Indeed, I sat with amazement at a roundtable once while some prosecutor complained that the provision was too narrow!) And, indeed, there is an out that would almost certainly be applied if anyone tried to rely on it:

(7) The court may in its discretion reject any statement notwithstanding that the requirements of this section are satisfied with respect thereto, if for any reason it appears to it to be inexpedient in the interests of justice that the statement should be admitted.

That, I guess, will save it from a declaration of inconsistent interpretation for any incompatibility with the right to a fair hearing. And, alas, it will also presumably be repealed before the new uniform evidence statute commences at the start of 2010.

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