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

The Land Registry of Alsace-Moselle

148 Chapter 6 regard to the qualification of this process as an electronic signature not be part of the report. Indeed, such a scanned signature constitutes in fact a copy of a handwritten signature, which does not seem to meet, for security specialists, the definition of an electronic signature, notably because of the lack of a definite link between the document and the signing action. The status of the signature process of the SCEC was to remain unsettled: handwritten signature, as defined by the IGREC, or electronic signature, as defined by the Civil Code? It is therefore telling that more than ten years after the promulgation of the Loi du 13 mars 2000, no application decrees have been published relative to the computerization of records of civil status. The Land Registry of Alsace-Moselle Scott has described how the emergence of the “all-seeing” modern state required innovative combinations of documentary technologies, professional practices, and legal rules into sophisticated information systems. Cadastral maps and property registers, for example, ensured a manageable form of land taxation by providing an reliable survey of all landholdings and their owners.39 This section describes the computerization of one such property register, the land registry of Alsace-Moselle.40 Operated by 36 judges and 150 clerks distributed among 46 sites, the registry provides access to the essential facts regarding land parcels and the rights and obligations attached to these parcels. At the heart of this formidable system lie 40,000 bound registers containing more than 2.5 million sheets and growing by 175,000 new inscriptions annually. Real estate professionals— including notaries, bankers, and bailiffs—continuously access the register to, respectively, prepare contracts, authorize loans, and recover property for more than 2 million land owners and 4.5 million parcels of land. Created in 1891 under German jurisdiction, the registry was recognized by French law in 1924, under the limited sovereignty (jurisdiction gracieuse) that the French state grants to the region. The registry functions as an openly accessible database, providing interested parties with convenient and synthetic access to the essential legal facts of properties and land owners. Like notarized contracts and records of civil status, the registry relies on the signature of neutral third parties— specialized judges—to ensure the evidential power of these legal facts. Paper and State 149 Because open access results in increased risks of fraud, however, the judges’ signature grants inscriptions in the registry only a mere presumption of trustworthiness, rather than the full force of authenticity. Hence, the challenge of computerization laid in providing a system that could continue to deliver a similar blend of convenience and legal certainty. As in the case of the notarial profession, fulfilling these needs would require creative adaption of the cryptographic signature model to documentary practices dating back several centuries. The land registry system is organized following a mixture of French civil law principles and German procedures and institutions. It fulfills the legal requirements for publicité foncière, which secures third-party rights (mortgage , liens, etc.) on real estate. The date of an application for inscription in the registry fixes the legal effect of the rights, establishing a set order by which the third-party rights on a property are recognized in case of default. Because inscription in the registry finalizes real estate transactions, a request for inscription must be verified by an officer of the state, a land registry judge (juge du livre foncier). The paper-based land registry system is centered around two principal types of documents, the ordonnance and the feuillet, a two-page-wide form bound into A2-size (16.5 × 23.4 inches) registers (see figure 6.7). The Figure 6.7 A few of the 40,000 A2-size bound registers of the Alsace-Moselle land registry. Photograph by the author. 150 Chapter 6 ordonnance results from a request for inscription, typically by a notary acting on behalf of a client who has purchased property. The judge is responsible for establishing the validity of documents provided by the notary (real estate contract, records of civil status of the parties, etc.) and for verifying the validity of the request with respect to the property (characteristics of the land parcels, mortgage, liens, etc.). By signing the ordonnance , the judge engages his personal responsibility that the information is correct. Once signed, the ordonnance is transcribed by a specialized clerk into...