Cryptography Reference
In-Depth Information
keep originals meant that the advantages of microfilming could not be
leveraged to bring about reductions in storage costs of records. In 1980,
the French Senate proposed to address both issues through a limited reform
of evidential rules.
18
The first restriction was easily addressed: the reform
raised the ceiling so that transactions under 5000FF could be proved by
any means.
Determining the evidential status of copies proved more complex
however, requiring a subtle balancing act between the formal rules of pre-
constituted proof and the judge's sovereign powers over the evaluation of
the evidence presented to him. It also required confronting the problem
of
technological mediation
: between the document originally witnessed by
the parties and the one presented in court, a series of highly technical
processes—electronic, optical, chemical—had intervened. How could the
courts gauge their reliability or susceptibility to fraud? Who was best
equipped to provide this expertise? The initial proposal from the Senate
suggested copies be granted an evidential value equivalent to the original,
as long as it could be demonstrated that the copy be a
faithful
and
durable
one. Given the burden of such a demonstration, however, it proposed that
a copy would be
presumed faithful
if it provided a reproduction “of the
integral content and of the exact form of the original title,” and
presumed
durable
if it was “established on a media of a quality offering every guar-
antee of conservation.”
19
The mechanism of evidentiary presumptions allows a court to assume
a plausible fact is true until rebutted by some contrary evidence. A classic
legal presumption is that the child born of a husband and wife living
together is considered the natural child of the husband, and parties alleg-
ing the contrary bear the burden of providing a paternity test. In decreeing
what the law considers common sense, presumptions thus affect a shift in
the burden of proof.
20
The Senate proposal would thus have two main
consequences: on the one hand, instead of having to demonstrate the
faithfulness of the copies themselves, parties would merely have to use a
technology that meets the criteria of the presumption; on the other hand,
the legal endorsement of the presumption would confer considerable legit-
imacy and a significant market advantage to the evidentiary technology
in question.
Despite recognizing that admitting copies as self-standing evidence
would increase the opportunities for fraud, the Senate emphasized that
