Cryptography Reference
In-Depth Information
judges would still have latitude in deciding whether a copy did indeed
qualify for the presumption. Furthermore, in most cases, the judge would
be faced with several versions of the same title—some originals, some
copies—and thus be able to compare their relative faithfulness. The Nat-
ional Assembly's legislative commission strongly disagreed. However fai-
thful and durable reproductions might be, it argued, they are
not
originals.
Given constant innovation in counterfeiting techniques, technical experts,
rather than presumptions, could assist the judge in assessing the authe-
nticity of a copy. Thus, when determined faithful and durable, copies
should be admissible as evidence without the original title but their
value left to the judge's appraisal.
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During parliamentary debate, the National Assembly scrapped both
proposals. Rather than grant copies explicit standing as evidence, it took
advantage of the existing exceptions to preconstituted proof allowing
parties to rely on copies when originals have been lost. Copies were
required to be faithful and durable reproductions of the originals, with a
presumption of
durability
granted when the reproduction is indelible and
“entails an irreversible modification of the media.” The law provided no
explicit criteria for faithfulness, nor specified the evidential status of the
copies. In theory, copies could thus be opposed by all means, including
testimony, and their value left to the judge's appraisal.
In the end, then, the reform performed minimally invasive surgery on
the evidential system while still allowing businesses to rely on the new
technologies. It avoided dealing with the metaphysics of proof that a
deeper consideration would necessarily entail. It adopted a highly conser-
vative technical presumption—that the chemical processes of exposure
and development irremediably alter photographic film—and left the rest
to the judgment of the court.
Throughout the 1980s and 1990s, the French legal community res-
ounded with repeated calls for a more thorough reexamination of evidence
law than had been afforded by the reform. Conflicting jurisprudence over
the admissibility of faxes, photocopies, and electronic messages seemed
to threaten the overall rationality and coherence of the French evidential
regime. Scholars and practitioners were unanimous in arguing that the
current system, founded on the primacy of paper-based writing, could not
be interpreted so as to admit born-digital materials, documents produced,
transmitted, or stored in electronic form.
