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Latest Legal Technology News From the publishers of Legal Technology Insider
ISSUE No.110 - 12.06.2002 E-conveyancing consultation starts - Government reshuffles as digital divide widens - New books & online publishing news - Wordwave proves its worth - Telfer staying in Oz - Lord Justice Brooke on the information society, the judiciary and the courts - Next issue: 26.06.2002
E-CONVEYANCING CONSULTATION STARTS
UK GOVERNMENT RESHUFFLES PACK AS DIGITAL DIVIDE WIDENS
Cooper replaces Michael Wills who has moved to the Home Office where he will chair a cross-departmental committee on the use of IT within the criminal justice system. The post involves liaison with the LCD and Law Officers to ensure that IT initiatives by the police, Court Service and Crown Prosecution Service are compatible. Finally, Stephen Timms joins the Department of Trade & Industry as Minister of State for E-commerce. He replaces Douglas Alexander who is now at the Cabinet Office.
The appointment of Timms is particularly welcome as he is one of the few people in the present government who is qualified to discuss his brief with anything resembling authority as he has spent 15 years working in the IT and telcoms industry, including stints with Logica and the IT consultancy Ovum. Presumably one of the first items on Timms' agenda is sorting out the mess the Inland Revenue's self assessment web service has got itself into. This had to be closed down earlier this month after users complained that security was so lax that they could see confidential information relating to other tax payers' financial affairs.
The reshuffle also coincides with the publication of the results of a new survey by the Institute for Public Policy Research (IPPR) which says it is "time to re-boot e-democracy to end the digital divide". According to the IPPR, local and central government must be more ambitious about the role the internet could play in revitalising local democracy or face further community disengagement.
The survey, which was conducted with the help of the Local Government Association (LGA), is based on information from 235 local authorities in England & Wales and follow up research in 120 of these. It shows that despite good intentions and some exceptions, local authorities are struggling to exploit modern technology to engage and consult with communities. The survey found that while 83% of local authorities now use the internet to invite feedback from citizens on services, take up is poor and e-participation is not communicated effectively to communities.
In particular, it shows that local authority attempts to provide access for many groups was poor: 70% say they have no access strategy for the disabled; 86% say they have no access strategy for members of minority ethnic communities; 83% say they have no access strategy for those on low incomes; 92% say they have no access strategy for people with literacy and numeracy difficulties; 84% say they have no access strategy for the elderly. And, while over half (54%) felt they were doing enough to use the internet to engage their local community, only 7% provided training for their elected members in the use of the internet to engage their electorate. NEW BOOKS & ONLINE PUBLISHING NEWS
DOMAIN NAMES - LexisNexis UK this month publishes "Tolley's Domain Names: A practical guide" to the issues involved in registering, maintaining, protecting and selling internet domains. The book is by Simon Halberstam and Joanne Brook of Sprecher Grier Halberstam and barrister Jonathan Turner. Price £39.95 (ISBN 0 7545 1491 9) for details call + 44 (0)20 8662 2000.
AFRICAN LAW REPORTS ONLINE - LawAfrica Law Reports are now publishing a monthly email round-up of the latest cases carried by its online service www.lawafrica.com - this month it focuses on recent cases decided by the Uganda Court of Appeal. For more details email lawafrica@lawafrica.com
NEW LEGAL DIRECTORIES - The UK legal portal LAW on the WEB this week launches two new online lawyers directories. The first is a database driven key word directory of law firms on the web - www.lawfirmsontheweb.co.uk - and the second is a directory of individual barristers - www.barontheweb.co.uk - that has been developed in association with The Kennedy Guide to Barristers.
WHAT'S NEW ON THE UK LEGAL WEB - Information for Lawyers has begun publishing the Infolaw Newsletter, a monthly ezine (email newsletter) providing a round-up of the latest developments in the world of the UK legal internet, including new site reports and reviews of online resources. To register for the ezine email subscribe@infolaw.co.uk
MANAGING CYBER-RISKS - The English Law Society's publishing division has published a new book looking at the way law firms can devise and implement a risk assessment and management strategy to deal with the legal, technological and operational risks that can arise with the use of the internet for the delivery of legal services. The book is called "Managing Cyber-Risks - strategic approaches for law firms" and is by the legal journalist Rupert Kendrick. Price £34.95 (ISBN 1 85328 771 7) for details call Marston Book Services on + 44 (0)1235 465 656. In a related development, Kendrick now publishes a monthly newsletter "Cyber Risks News" that provides a round-up of the latest legal and practical developments in this field. The subscription is £30 pa or fee if you receive it online. For details email rupkendrick@aol.com
SPR LAUNCH E-BOOKS DIVISION - UK-based Semple Piggot Rochez (SPR), the legal e-learning company responsible for the world's first internet law school, has announced the official launch of its new legal e-publishing imprint at www.e-lexia.net Catering primarily for the needs of undergraduate and post-graduate law students, e-lexia.net offers a small but select list of e-books covering all of the core subjects plus a comprehensive collection of highly focused briefing papers originally published for practitioners as part of the CPD-direct professional training service. All e-lexia.net publications are competitively priced and may be purchased online by way of a secure e-commerce engine, either as a whole book or, chapter by chapter according to the customer's own specific requirements.
All authors published through e-lexia.net are required to submit their work as fully formatted electronic manuscript, with tables and index if required, and in return are granted a royalty of 40% on sales of their work - a level of return that probably no traditional legal publisher has ever offered. Commenting on the launch Michael Semple Piggot, CEO of SPR, said: "We believe that, as technological change takes hold, the future of academic publishing lies in the e-book. Therefore we have created this site solely to publish and sell books in electronic form."
LEXIS IN TALKS TO ACQUIRE QUICKLAW - LexisNexis Butterworths Canada has confirmed that it is in "final negotiations" to acquire Quicklaw Inc, Canada's leading online legal information service. The companies expect the deal to be finalized in the very near future. The new consolidated company will have headquarters in Ontario. Professor Hugh Lawford, the founder, chairman and CEO of Quicklaw, will become CEO of the new organization, while Quicklaw co-founder Dick von Briesen will become executive vice president - the two men founded the company in 1973.
WEST CREATES LAWNET SIG - The US legal publisher West Group has announced the formation of a LawNet Special Interest Group (SIG). The West Group SIG will focus on fostering the advancement of LawNet members' understanding of emerging technologies and how they impact the practice of law. The SIG will facilitate discussion and debate critical to the development of advanced West Group technologies and services that improve law practice management, legal research, information sharing and knowledge management. (NB. The US LawNet group is no relation to the UK's LawNet association of independent solicitors practices.)
IS BLUETOOTH A TROLL - AND SHOULD YOU CARE? - Finally, London law firm Tarlo Lyons, in association with Hewlett-Packard and Interactive Optimedia, has just published "An Active Guide to Technology & Interactivity". Along with some case studies to demonstrate how even seemingly innocuous online transactions can have dire legal implications - we particularly liked 'Bridget Doe's Diary' - there is also a very useful A-to-Z guide to the increasingly confusing jargon now surrounding the online world. Copies of the guide are available free of charge - call Alison Boling at Tarlo Lyons on + 44 (0)20 7814 5493 or email alison.boling@tarlolyons.com
WORDWAVE PROVES ITS WORTH IN SINGAPORE
TELFER STAYING IN OZ
THE INFORMATION SOCIETY, THE JUDICIARY AND THE COURTS
"Over the Easter holiday I read a book by John Cassidy. It was called "dot.con". It is the story of dotcom mania in the United States. It was a bit like tulip mania in the seventeenth century and the South Sea Bubble in 1720. Ridiculous claims were made about the benefits of a new information super-highway. Investors parted with a lot of their money in exchange for shares in the new dot.com companies. Then the bubble burst. A lot of people looked pretty silly. In this country we sometimes read about disasters in public sector IT investments. A recent example involved the scrapping of a complicated system commissioned by the Immigration Service. A lot of public money was wasted. Civil servants processing thousands of new asylum claims did not receive the support they needed. The delays in processing these claims grew and grew.
It is against this unpromising background that I am talking to-night about the Information Society, the Judiciary and the Courts. Later on, I will describe some of the practical applications of modern technology which I think are likely to help us in the conduct of court business. But I was brought up as a historian, and I do not think it is sensible to consider where we are now or where we may be going, without first considering how we have got here. In very simple terms, computer technology is all about the manipulation of a couple of digits, 0 and 1. We can leave the technical details to the experts. All we need to know as lay people is that when text, or sound, or images, are translated into this binary digital form, they can be moved about within a computer, or from computer to computer, with incredible speed.
Clever programmers can use computer technology as a means of developing artificial intelligence. Twenty years ago I remember being struck by the early chess programmes by which one played chess against a computer. Depending on the way it was programmed, the computer was allowed increasingly small periods of time to think about its next move. I could normally beat it at Level One, where it had to respond almost instantaneously. At any higher level it tended to beat me every time. Some so-called expert systems were written for lawyers more than ten years ago. Nothing much came of them. I believe that one day they may provide a lot of help for lawyers, but they have not really arrived on the court scene yet. Computers can also juggle words around. I first came across word-processing at a big City firm in the mid-1970s. I thought it was magic. I have used it ever since. They are also very good at searching for words or numbers, or combinations of words and numbers. I remember attending a launch by Butterworths in 1978 of its link up with the LEXIS legal information database in Dayton, Ohio. This seemed pretty remarkable in those days, although for various reasons the take-up was quite slow.
The first time I came across applied technology in any major way in my legal practice was in 1983. In that year I was appointed Counsel to the Sizewell Inquiry. As soon as I joined the Inquiry, I remember being struck by the way in which the official transcripts of the Inquiry were being transferred digitally from the transcribers' computers to the CEGB's computers at Snape Maltings, in Suffolk, and then sent digitally to computers at the CEGB's headquarters in London. Their lawyers and senior staff in London could read each afternoon the transcript of what had been said 100 miles away at the Inquiry in the morning. A little later I encountered fax for the first time. In 1984 I first saw how fax machines could translate manuscript writing into a form in which they could be sent down the telephone wires. They would then be reconstituted at the other end. This revolutionary technology enabled the teams in London (or wherever) to exchange draft documents with their lawyers in Suffolk without them all having to travel to the same place for a meeting, and then communicating afterwards by posting letters to each other.
Another aspect of the magic on display at that Inquiry were the applications which enabled an operative in the control room of a modern nuclear reactor to interrogate the plant systematically when a fault of some kind became apparent on the computer screen. This scene in a modern English control room was a far cry from the chaos in the control room at Three Mile Island in 1979. There the half-trained operatives of a small private US utility were confronted by so many flashing lights and ringing alarm bells that the only way they could obtain space to think was by turning all the safety devices off so that they could get a bit of quiet time to think. Objectors pointed out that systems designed by human beings could not be relied on to be 100% dependable all the time, particularly as they were not designed to cater for the unknown. Of course they were right, but it was equally right to make all the use one could of applied modern technology to lessen the risks involved in using what was potentially very dangerous modern plant.
All this made me wonder what modern technology could do for legal practice. When I returned to the Bar in 1985 I returned to a different world. The prevailing culture among lawyers had an antipathy to technology. When our Bar Computer Committee met for the first time that year, we sent a circular to all 360 barristers' chambers in England and Wales, asking them whether they would be helped by receiving clear guidance about practical applications of IT. If they said "yes", we asked them what form that guidance should take. 50% did not reply at all. Another 25% replied politely to the effect that they could not imagine any way in which IT could help them. And above that level there were various degrees of polite interest up to the very, very few enthusiasts who were already networked and knew it all.
At that time most chambers accounts were maintained on manual card index systems. Barristers' fee notes were typed out by hand. When consultants visited the vice-chairman of the Bar in 1987, they looked into his clerks' room and asked the senior clerk what was the total amount of unpaid chambers debts. The senior clerk said that he had no idea. He imagined it was about a million pounds. These unpaid debts did not carry interest. In those days the Bar concealed the effects of its inefficient working practices simply by charging higher fees. There was no incentive for early payment. I remember we had a barrister employed by Rank Xerox on that first committee. He had a work station at work, and he regularly exchanged draft documents from all over the country with other Rank Xerox lawyers and senior managers. Our first chairman, Christopher Bathurst, was also the director of a newspaper company. His company used IT quite extensively for communications between its various works. He could not see why information could not be sent in the same way between lawyers' offices and an electronic file at the local court. This would save all the cost and delay involved in using the methods of communication then in use. This was a language which most of those in the Lord Chancellor's Department in those days did not begin to understand.
When we met the members of the Lord Chancellor's Civil Justice Review in 1986, we told them we believed that there should be investment in IT systems at civil courts which would enable judges to manage all the business at their court efficiently. They accepted our recommendation, but the Government did nothing about it. In a different forum we discussed with the Home Office the merits of a San Diego video-link project for remand hearings, linking a court with the local prison. It was popular with prisoners in San Diego in 1986. It has been popular with English prisoners since it was introduced here two years ago. I am telling you all this to show you that there is nothing very new about the processes we are now at last beginning to see in our courts. The one invention we did not anticipate was the Internet. Its arrival helped to move things along a bit.
Between 1986 and 1999 this country steadily got further and further behind countries like the United States, Canada, Australia and New Zealand. We also got behind a number of European countries who were making big advances in the use of technology in their courts. he Lord Chancellor's Department was a small Government department. Legal aid spending was out of control in those days, and it was not allowed to invest in IT. While the Treasury allowed other Government departments to invest quite heavily in IT during the 1990s, the courts missed out badly. We did not completely stand still. Those years saw four major advances. A computerised bulk process centre at Northampton now handled the claims of a handful of major organisations electronically. A Crown Court system called CREST enabled back-office staff in the Crown Courts to do their work more efficiently. Similar arrangements called CASEMAN were introduced five years ago into the county courts for much the same reason. And a judicial technology project called JUDITH provided about 400 full-time judges with laptop computers and software, including communications software, to go with them. Apart from a few freestanding back office systems in specialist courts, and a communications system for civil servants, that was about all.
We couldn't go on ignoring technology for ever. New senior managers joined the Court Service who knew a lot about technology in the modern world, and they insisted that we should have a good long look at all our court processes. By this means we could see whether these processes could be made simpler and more straightforward if computers were used for the things they are good at. The result of all this thinking has led to the court modernisation programme of today. I am a member of the new Programme Board. This is the first time a senior judge has ever served on a Government Board of this kind. This means that the judges are at long last close to the place where spending decisions get taken. I lead a team of five judicial advisory groups which are helping with different aspects of the programme. It aims to introduce modern IT infrastructure into all our courts. At the same time we are examining different ways of conducting court business: ways which would be impossible to contemplate without modern technology.
Far and away our greatest need is to introduce software systems which will enable court staff and judges to manage court business better in the civil and family courts. Today the courts are not networked. CREST and CASEMAN link dumb computer terminals with a court database, but we are miles behind most government departments and modern private sector businesses. Our aim is to lop off the business sections of the civil courts, and to enable those courts to concentrate on their real purpose: hearing defended cases. The back-office business will be diverted to new business centres, linked to the courts by IT. The first of these business centres will start on a pilot basis in the Midlands this autumn.
In the autumn we also hope that testing will have begun for the new software systems we will use in future in all our courts. At present we rely on paper filing systems. It is not always easy to retain and motivate staff when files go missing, or get into a muddle quite so often. Nowadays court users have every reason to complain about some of the delays and inefficiencies that occur. Once modern software is in place, court staff and judges with case-management responsibilities will be able to handle cases far more efficiently before trial than is possible today. A modern electronic diary and listing system will enable trial dates to be fixed more quickly and judges' time to be more effectively used.
I will now talk about some of the applications of technology we are now trying out in court. If you go to the Chelmsford Crown Court, you will see a new information system called XHIBIT in action. This system has been developed as a result of discussions between the different criminal justice agencies, all of whom have an interest in knowing the progress a Crown Court trial is making. Witnesses need to get to court at the right time, and not have to hang about there for ages. It is helpful if police officers who have to give evidence in a case are not taken away from their other duties for too long. Those who are concerned in the next case in the list have an interest in knowing whether the current trial is running to time.
XHIBIT is a web-based system which depends on someone in court keeping a log of events which are then transmitted instantaneously to the XHIBIT screen. Prosecution opening speech; Prosecution lay evidence; Police evidence; defence evidence; closing submissions by the prosecution; judge's summing up; jury in retirement; verdict. These are some of the entries that may be made. The information on XHIBIT is accessible on monitor screens in the public parts of the court building, and also on the particular Crown Court website, which is accessible by everyone who has an interest in the progress of the case. Text messages can also be sent to people who need to be warned when to attend court. After a successful launch at Chelmsford, its use was extended to two other Crown Courts in the Essex area. It will soon be tested at Liverpool, which is a much bigger centre.
Money Claims Online (MCOL) was formally launched three months ago. It came about in the following way. For about ten years a number of very big organisations have been using the centre at Northampton to enforce payment of their debts through an electronic process. All through the 1990s this centre used to receive their unpaid final invoices by post. It would then issue and post a county court summons electronically. When the debtor did not respond to it within the prescribed period, the centre would issue and post a default judgment to both creditor and debtor. The execution process could then be issued electronically. More recently, the users of this service could send their final invoices to the centre by email. This facility did not only provide an efficient service for enforcing the payment of unpaid debts. It also took away from the courts a large quantity of undefended business of a routine kind which could be processed just as easily by computer as it can by judges or court staff. Of course, when the debtor shows resistance, the action is processed through the appropriate county court as a defended action in the usual way.
MCOL is the logical next step forward. It is available to all of us, provided we have access to the Internet and to a credit card. At any time of the day or night a creditor can fill in the form for a money claim and send it electronically to the Court Service for processing. The different boxes on the form have to be completed. The information in them will then provide the Court Service computer with the data it needs to issue and post the claim to the defendant named on the form. The claim will not be issued until the court fee has been paid electronically. The amount of the fee, and the amount of costs that can be claimed, appear on the form once the requisite details have been completed. Quite a large number of claims have already been issued in this way since the service was launched. We were expecting a slow take-up at first, but this will pick up as the usefulness of the service becomes better known. The next step is for facilities to be added by which a defendant can file his or her defence online if the claim is disputed.
For some time now, courts have been using the electronic presentation of evidence (EPE) in major criminal trials. Anyone visiting the Maxwell trial, for instance, would see two monitor screens. he first would show the raw Livenote transcript scrolling up a few seconds after the words were said in court. The other would generally show the witness's face (because it was a very large court). If use was made of the facility to show a document on the screen, everyone in court could read the document, too.
EPE will also enable a party to make a complex case easier to understand by using computer graphics. In big fraud cases, where money is said to have whizzed about through a number of bank accounts, it is very much easier to demonstrate its movement graphically than by the use of the spoken word. In the United States EPE is common. Increasing use is being made there of computer graphics to illustrate features of a case which will provide a knock-out blow if they can be put before the trial court.
There was once an American case concerned with a catastrophic fire in a hotel ballroom. The fire was said to have started in an anteroom, and it then passed at speed through a hotel lobby on the way to the ballroom. The owners of some sofas in the hotel lobby escaped liability when their lawyers could show that the fire must have passed through the lobby at high level at such a high speed that it would not have even touched the sofas on its way. We were shown the graphics at a London conference ten years ago, and their message was irresistible. The flammable attributes of the sofas could not possibly have been to blame. In a case like this, everything will turn on the accuracy of the data put into the computer. Experts will have considered all the relevant evidence - about the heat of the fire and about the time when it was seen in different places, for instance - before they prepared the graphics. The real battle between the parties will not be fought at the trial (where the pictures are dynamite) but at the pre-trial case management conference when the admissibility of the evidence is put under challenge. The judge will then have to consider whether it was fair to rely on the data used in compiling making the graphics.
Over the last ten years there has been increasing use of EPE facilities by the prosecuting authorities in very big criminal trials. The courtroom is specially fitted up with the necessary hardware and cabling, and the judge and the lawyers are taught how to use it for the purposes of the trial. Tiresomely, each of our major prosecuting authorities use different software, and in due course decisions may have to be made as to whether this is a sensible way of going about things.
In American courts it is now becoming very common to demonstrate the effect of evidence by the use of Powerpoint or other similar technology. Those who use it know that the eye takes in information much more quickly and efficiently than the ear does.
We are now tackling the introduction of EPE in a systematic way. Since the modernisation programme started two years ago, nine Crown Courts have been earmarked for trials of this equipment: Birmingham, Blackfriars, Bristol, the Old Bailey, Kingston, Leeds, Liverpool, Manchester and Southwark. We are now considering the wiring systems for the roll-out of IT infrastructure into all our major courts. Decisions will soon have to be made as to how many criminal and civil courts will be able to accommodate EPE as a matter of course without special arrangements having to be made.
Earlier this year there was a case in which a woman paralysed from the neck downwards claimed she had the mental capacity to understand what she was asking for when she wanted her doctors to turn off her life-support systems. The President of the Family Division, Elizabeth Butler-Sloss, went with court staff and the lawyers in the case to the claimant's bedside, where the proceedings were recorded by video for the benefit of those sitting in the trial courtroom. When the case continued in court, the claimant could watch the proceedings from her hospital bed. At the very end of the trial the technology was used to enable the judge to give her judgment from Birmingham to the lawyers sitting in court in London.
During the modernisation programme three civil court centres, at Cardiff, Leeds and the Royal Courts of Justice in London, have been equipped with videoconferencing facilities. Two others, at Manchester and Birmingham, have paid for it out of their own resources. Experience is showing its value for a number of different types of case. For trials it is being used where a witness is abroad, or is seriously disabled, or is a long way away from the court, and it would be disproportionately expensive for him to travel there. It is also being used for pre-trial hearings where one of the partyÕs lawyers is a long way from the court where the hearing is being conducted.
In criminal courts videoconferencing is also increasingly being used for links with prisons. A successful pilot experiment between three magistrates' courts and one Crown Court and their local prisons has led to the facility being extended to magistratesÕ courts throughout the country this year. This technology has also been used for some time for the evidence of child witnesses, and foreign witnesses on fraud cases. In July there may be quite a big extension in its use when different forms of vulnerable and intimidated witnesses are permitted to give evidence in a criminal court by video link.
Experience has shown, however, that unless the equipment is very good, the evidence of a witness over a videolink does not have the same immediacy as when the witness gives evidence in court. Some criminal judges believe that juries have acquitted in cases where they might well have convicted if they had actually seen the complainant child witness give evidence from the witness-box. There is no doubt, however, that video technology is here to stay for certain types of young or vulnerable witness, and we must do our best to ensure that the technology used is as good as possible.
As I have said, I am a member of the board which is driving this modernisation forward. In the last Government spending review we were allocated more than a £160 million for the first stages of this programme. In July, when the results of the next spending review are announced, we will know how quickly we can take the programme forward over the next three years. The immediate priority is to install a networked IT infrastructure into all our Crown Courts and the 85 largest civil court centres. The next priority is to choose, design and install the applications software. With what money is left over in the current spending round we could also extend the use of EPE and videoconferencing. There are distinct possibilities, too, in digital audio recording. Trials of this technology are being conducted this year in Crown Courts at Bournemouth, Doncaster and Snaresbrook.
I began this lecture by describing the culture of the Bar in 1985. Things have changed since then on both sides of the legal profession, and nearly all our judges have been supplied with a modern laptop computer and received basic training in its use. But is would be absurd to think that many judges or lawyers year feel comfortable when using computers. This is the great challenge of the next ten years. In the hand-out I prepared for this evening I wrote about "training to meet the challenges posed by resistance to change and the fear of the unknown".
When I went to a court technology conference in Baltimore last August I learned that leadership is vital. In this country the leaders of the Bar and the leaders of the solicitors' profession must understand why this modernisation programme is so important, and must get this message through to those they represent. So must the leaders of the different agencies whose work impacts on the work of the courts - the Court Service, the police service, the Crown Prosecution Service, the prison service and so on. There will have to be investment in IT, to keep up with what the courts will be requiring of those who use them. There will also have to be investment in training and confidence building.
Litigants in person also pose a major set of challenges. I know the Court Service is endeavouring to build partnerships with advice agencies, like the Citizens Advice Bureaux to help to mitigate some of the problems facing lay litigants in an electronic age. At Baltimore a black Harvard law professor told is that the widespread use of IT may help the educated but it also tends to disadvantage still further those who are already disadvantaged. I know that many judges are very worried about this. One of the benefits of moving forward slowly is that we will be able to spot where the problems lie in practice, and do our best to take practical steps to resolve them.
We have travelled a long way since 1985. Over the next years the pace of progress will accelerate. It is very difficult to see how tomorrow's lawyers can succeed unless they feel comfortable with the use of computers. If they do, they will be able to render a service to their clients in a modernised court environment which will put into the shade the puny efforts of my generation. But they must always remember that the practice of the law is the practice of serving the needs of other people, and serving their needs requires many human qualities over and above versatility in using modern technology. Very interesting times lie ahead."
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