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

5 Written Proof

5 Written Proof On March 13, 2000, France—the country that gave bureaucracy its name, where citizens must carry at all times their papiers d’identité, where administrative procedures are synonymous with intricate theatrical performances of forms, stamps, signatures, and countless pièces justificatives—finally got around to legally defining written proof: “Civil code, art. 1316—Documentary , or written, evidence, results from a series of letters, characters, numbers, or any other signs or symbols endowed with an intelligible signi fication, whatever their media or the means of their transmission.” The clarification came hot on the heels of Henri III’s 1566 Ordonnance de Moulins, France’s previous comprehensive response to innovation in evidential technologies. Concerned with reducing both the quantity and duration of litigation, the 1556 Ordonnance mandated that the emerging technology of written documents would henceforth supplant witness testimony in all contractual disputes. The scope of the 2000 reform—its perceived need to reexamine and rearticulate fundamentals—was spurred on by an event that seemed to shake l’état de droit to its very core, the emergence of the Internet. In the late 1990s, at the height of the dot-com boom, French media breathlessly reported on the Internet’s power to upend traditional business models, flatten social hierarchies, foster scientific innovation, and stimulate political change, while generating massive wealth in the process. Tapping deeply into France’s anxieties over its declining global powers, the Internet seemed to throw into sharp focus everything that was wrong with the French model. Inherently horizontal, adaptable, and capital-friendly, the Internet was driven by a new type of business culture, feverish yet relaxed, as removed as could be from the French traditions of elitism and reverence for the state perpetuated by the Grandes écoles. Indeed, in every office and 94 Chapter 5 home, the dark screens of Minitel terminals—France’s first stab at cyberspace —stood as silent reproaches to the technological ineptitude of French “dirigisme” and its excessive thirst for regulation.1 Worse, the Internet’s ability to evade censorship, mock copyright, and seamlessly cross borders made nation-states and their reliance on the rule of law seem positively antiquated, institutional relics of a past ill equipped to deal with the utter modernity of electronic networks. The issue was not particular to France. In the United States, legal scholars and practitioners debated whether the lawlessness of cyberspace could be tamed using existing statutes and concepts, or whether it required something completely new: a body of cyberlaws. In a famous debate, Frank Easterbrook, a judge, and Lawrence Lessig, an academic, articulated the positions of, respectively, the rearguard and the vanguard. Easterbrook argued that cyberlaw advocates treaded treacherous ground: “Beliefs lawyers hold about computers, and predictions they make about new technology, are highly likely to be false. This should make us hesitate to prescribe legal adaptations for cyberspace. The blind are not good trailblazers .”2 If American law had barely begun catching up with the impact of photocopying on intellectual property, “What chance do we have for a technology such as computers that is mutating faster than the virus in The Andromeda Strain?” His recommendations for future action were strikingly conservative: “Well, then, what can we do? By and large, nothing. If you don’t know what is best, let people make their own arrangements. Next after nothing is: keep doing what you have been doing.”3 Lessig responded that in fact, electronic networks operated in ways that required careful analysis of law’s ability to regulate behavior. Regulation, he proposed, is effected through four simultaneous yet distinct mechanisms : law obviously, but also markets, social norms, and architecture. Although regulation by architecture is common in “real space” (e.g., speed bumps or automatic seatbelts), it acquires a special valence in networks: “The software and hardware that make cyberspace what it is constitute a set of constraints on how you can behave. . . . The code or software or architecture or protocols set these features; they are features selected by code writers; they constrain some behavior by making other behavior possible , or impossible. The code embeds certain values or makes certain values impossible. In this sense, it too is regulation, just as the architectures of real-space codes are regulations.”4 Written Proof 95 Lessig and others argued that such code constitutes a “Lex Informatica” unto itself, “the set of rules for information flows imposed by technology and communication...