Jean-François Blanchette: Cryptology’s Day in Court

Blanchette's first book takes a look at the use of electronic documents in litigation and the challenge of defining them as viable evidence.

“Burdens of Proof: Cryptographic Culture and Evidence Law in the Age of Electronic Documents” (Cambridge: The MIT Press, 2012), was recently published by Jean-François Blanchette, an Associate Professor in the Department of Information Studies. An expert on authenticity of electronic information, social and political dimensions of information security, and privacy and data retention, Blanchette examines the use of electronic documents in litigation and the challenge of defining a new evidentiary framework for electronic documents and the convoluted paths through which electronic documents acquire moral authority.

Based on fieldwork conducted during the 2000 reform of evidence laws governing the admissibility of signed documents in French courts, “Burdens of Proof” is a study of how cryptology has gone from its use mainly by national security agencies to becoming accepted in the legal world as a forensic technology used by citizens in litigation. The book also underscores the current limitations of cryptology within its use in legal proceedings.

“Courts today are flooded with every possible kind of electronic documents — emails, memos, websites, receipts, and forms, etc.,” he notes. “In particular, divorce lawyers claim that almost every case now relies on electronic evidence, including text messages, Facebook profiles, or logs of online gaming activities. While as a culture, we have considerable experience with appreciating the authorship and integrity of paper documents, we have much less when it comes to electronic documents, a medium that is in any case, particularly malleable.”

Blanchette says that although cryptology aims to provide technologies that can transform digital information into admissible evidence, digital signatures have not come into widespread use as evidence in disputes over contracts. He maintains that while the complex infrastructures needed to enable individuals to authenticate documents through public- key cryptology have been a topic of discussion for more than 30 years, they have as yet failed to materialize.

“In 1970s, cryptographers at Stanford and MIT invited mathematical techniques, which they called public-key cryptography, which seemed ideally suited to ensure the authenticity and confidentiality of electronic communications,” states Blanchette. “Markets for cryptographic signatures never took off, in spite of the important benefits they might have brought to electronic security. So the promise of cryptography to shape the development of the Internet infrastructure in socially innovative ways has remained unfulfilled.”

Blanchette says that while the rules that govern the admissibility of paper-based evidence were created in the 16th and 17th centuries, the ability to establish the authorship and integrity of electronic documents is considerably less evolved.

“There is thus currently a real crisis these days when it comes to establishing the rules parties and the courts should observe when creating, exchanging, authenticating, and storing electronic documents, so as to maximize their ability to perform as reliable evidence,” he says.”

In ”Burdens of Proof,” Blanchette describes the trials of French bureaucracies as they wrestled with the application of electronic signatures to real estate contracts, birth certificates, and land titles, and suggests that that the material world need not succumb to the virtual but can usefully inspire it.

“The notions of documentary authenticity that have emerged out of Western civilization’s engagement with paper over the last millennia are rooted in the preservation of the integrity of the underlying material carrier, i.e., paper,” Blanchette asserts. “In the electronic environment, such notions are incredibly difficult to maintain. To remain readable in spite of hardware and software obsolescence, documents must be periodically migrated to new encoding formats, so integrity cannot be measured at the level of bits. It’s not clear how to ground electronic authenticity in the material or logical properties of bits in ways that are sustainable over the long term.”

Blanchette underscores the social and scientific potential that would flourish with advances in the technologies that would ensure cryptographic authenticity.

“Cryptographers have passionately argued for the rights of ordinary citizens to access powerful cryptographic tools that would guarantee electronic free speech and anonymity,” he observes. “They also proposed to build digital analogues to the paper-based technologies fundamental to the organization of civic life, from anonymous cash [transactions] to voting ballots and handwritten signatures. Yet, thirty-five years later, the concrete impact of cryptography’s innovative socio-technical agenda on the development of the Internet has been disappointingly small.”

Blanchette achieved his bachelor’s and master’s degree in computer science with an emphasis on cryptology at the Université de Montréal, and his doctorate in science and technology studies at Rensselaer Polytechnic Institute. He most recently presented papers at a workshop on “L’écrit électronique: Les règles de l’art” in Brussels on June 1, and at the Archival Education and Research Institute at UCLA in July. A forthcoming book, “Running on Bare Metal: Towards a Material Theory of Computation,” is now under contract with The University of Chicago Press and slated for publication in 2013.

Professor Blanchette was recently interviewed on “What Makes a Digital Document Real?” by Steven Cherry for IEEE Spectrum’s “Techwise Conversations.” To hear the podcast, click here.

Photo by Alison Duke; image composite by Ikkanda Design Group