Burdens of Proof: Cryptographic Culture and Evidence Law in the Age of Electronic Documents

1 Introduction

1 Introduction In the waning days of the summer of 2009, a full-blown media storm erupted over the qualifications of Barack Obama to serve as president of the United States, a controversy hinging on the claim that he had actually been born in Kenya, rather than in Hawaii. More ratings-friendly than health-care reform, the spectacle featured all of the usual elements of American conspiracy theories—lawsuits, websites, counter-websites, bumper stickers, and much cable news coverage of fringe characters. At the center of the controversy, the questioned authenticity of an ordinary bureaucratic artifact—the birth certificate. To counteract these claims, the Obama campaign distributed a digital scan of a document known as a “short-form” certification of live birth (see figure 1.1). Short-form certificates list only the essential data from the original (“long-form”) certificate, as the latter may contain confidential (e.g., epidemiological) information.1 The strategy backfired, however, as the scan looked nothing like an original record produced at the time of Obama’s birth would: in the 1990s, agencies computerized the production of the certificates by transcribing them into databases, cutting down on the time and labor needed to produce official copies. Presented with a printout from a database, “birthers” clamored for the president to exhibit the original, with the assumption that tangible clues—embossed seals, handwritten signatures, yellowed paper—would testify to its (lack of) genuineness , clues utterly missing in computerized documents. The birthers controversy descended further into farce when pictures of Obama’s purported “original” Kenyan birth certificate circulated, later shown to have been crudely manufactured from an online scan of an Australian form. Indeed, the issue continued to agitate political commentators on slow news days until April 2011, when Obama released a scanned 2 Chapter 1 copy of the long-form certificate of live birth, complete with original signatures of Obama’s mother, the attending physician, the hospital registrar, as well as that of the Hawaii State Registrar, certifying the truthfulness of the copy itself (see figure 1.2). The lingering doubts over President Obama’s birth certificate signal the loss of the ways by which official documents convey their authority and authenticity, formally and informally. This loss is a direct consequence of the current society-wide shift in the ways administrative documents are created, communicated, classified, and preserved. Today, almost all are Figure 1.1 President Obama’s “short-form” certification of live birth, released by his presidential campaign on June 12, 2008, available at http://www.fightthesmears.com/ articles/5/birthcertificate (accessed June 24, 2011). In the public domain. Introduction 3 Figure 1.2 President Obama’s “long-form” certificate of live birth, released by the White House on April 27, 2011, available at http://www.whitehouse.gov/sites/default/files/rss _vieemphasis wer/birth-certificate-long-form.pdf (accessed June 24, 2011). In the public domain. 4 Chapter 1 computerized at some point of their life cycle, and the integration of computing , imaging, and printing technologies makes it easier than ever to scan, copy, alter, distribute, print, and store high-quality documents. If the moral authority of paper records has correspondingly diminished, the electronic documents replacing them appear to us even more malleable. Although scholars have examined the shift from print to digital in the context of photography, newspapers, scholarly communication, and technical design, the impact of digitization on the evidentiary characteristics of documents and its consequences for the functioning of bureaucracy has been largely confined to expert discussions in the fields of law, computer science, archives, and records management.2 Yet, paper records (and paperwork ) form the material foundation on which the legitimacy and the dayto -day operation of the nation-state rests—from the constitution itself, to birth certificates, voting ballots, judgments, real estate deeds, and so on. As Bruno Latour has remarked, Western culture typically dismisses the crucial role of these material artifacts: “Common sense ironically makes fun of these ‘gratte papiers’ and ‘paper shufflers,’ and often wonders what all this ‘red tape’ is for; but the same question should be asked of the rest of science and technology. In our cultures ‘paper shuffling’ is the source of an essential power, that constantly escapes attention since its materiality is ignored.”3 Thus, although artfully disguised as a technocratic debate...