By Ken Fox
As a delegate at the Canadian Association of Law Libraries 2016 annual conference in Vancouver, I was pleased to attend a plenary session on The Law of Evidence in the Digital Environment, presented by Dr. Anthony Sheppard and Dr. Luciana Duranti.
This session left my head spinning, as contemplating the implications and ramifications of the transition from print to a digital often does. Dr. Sheppard presented a brief introduction to the issues, and survey data suggesting the courts are better equipped than the legislators to guide the rules of evidence through the transition. Dr. Duranti took us through a whirlwind tour of problems and complications in applying the traditional rules of evidence to digital documents. It was a wild ride.
I have mostly pondered the print-to-digital transition from the standpoint of licensing electronic information in an economy designed to trade in manufactured objects (books). Needless to say, the law of evidence raises a whole other stack of questions.
To be admissible as evidence, traditional documents must have authorial execution, usually in the form of a signature, typically written in blue ink, to demonstrate that the document is an original not a copy. Otherwise, evidence of authenticity is drawn from the material document itself. The burden of proof is on the party introducing the evidence.
But what does authenticity mean with regard to a digital document? Its historical providence is not encoded in its immediate physical presence, but has a separate existence in the form of metadata. The rules of evidence for digital documents reverse the burden of proof so the party challenging the evidence must prove its inauthenticity. If the metadata does not conclusively prove that the information has not been manipulated, then the document is admissible. If courts relied on the traditional rules of authority, very few electronic documents would be admissible, due to their perversely dynamic nature.
But the use of metadata raises further questions: what if the owner of data does not own the metadata? Although it sounds absurd, this is usually the case with cloud computing, where the data may even be stored in a different country. The creator owns the data, while the holder owns the metadata. Should there be laws requiring data to stay in the country of its creation? Perhaps, but the international strategy is moving away from such jurisdictional requirements, and toward multilateral international agreements.
“There is nothing more material than the cloud,” said Dr. Duranti. Far from the ephemeral alter-Earth imagined by cyber-space novelists, the “cloud” is on the ground, has human custodians, and ideally follows international guidelines. Compliance is not necessarily guaranteed. Preservation in the cloud is a “black box” process – you know what goes in, and what comes out, but nothing of what happens in between. Thus, security is the new authenticity. In order for cloud-based information to be authenticated, providers must agree to share audit trails and access logs, facilitate cross-border data-flow.
The old “best evidence” rule, that favours originals over copies, has been eroding for some time now. But with digital documents, it will disappear entirely. What is an “original” versus a “copy” in cloud computing? Even if there was some way to identify an original version stored at a server, wouldn’t any version that appears in court be of necessity a copy? The laws of evidence with respect to electronic documents bypass the best evidence rule in favour of the system integrity rule, a complex rule that tests a computer system’s compliance with standards.
All of the above barely touches the issue. For example, I have been assuming that digital files are “documents” with respect to the traditional laws of evidence – but at times they are better seen as “testimony” or “real evidence.” It is trite to say so, but the world is changing and the old categories don’t fit the way they used to do.
I’m not an expert on either the law of evidence or technology – actually, I’m not even a novice in either subject. But listening to these two speakers, at times, gave me the impression that the law of evidence is an old marshal from a western movie on horseback trying to lasso a speeding locomotive. Other times, I saw it as a component part of the machine, critical to its proper function, but one they neglected to include in the initial design, and are now scrambling to incorporate.