Cryptography Reference
In-Depth Information
group pondered whether, given his access to the inner workings of the
computerized system, “the burden must lie on the one who controls the
technology, i.e., the operator of the computerized system, to prove the
proper functioning of this system?” On the other hand, such a burden
would lead, in effect, to a presumption of the system's untrustworthiness
until proof of the contrary by the operator. The working group thus pre-
ferred a middle-ground approach that would distribute the burden of proof
among the parties: it granted neither negative or positive presumptions to
the technical system and required parties to gather “serious, precise, and
concordant” evidence to convince a judge that the system malfunctioned.
The balance of power between the parties and the technology was thus
achieved by providing specific criteria for the admissibility of evidence
against electronic writing and ultimately relying on the judge's evaluation
of how specific evidence met these criteria.
Still, granting electronic writing standing equal to paper seemed risky.
Rather than leaving the matter entirely to the judge, the group preferred
to establish a hierarchy within written proof that would distinguish
between the “classical writing of the Civil Code” and new technologies:
electronic writing would not be able to prove against properly preconsti-
tuted paper instruments. For all other cases, “the courts solve conflicts of
written evidence by determining, by any means, the most credible title.”
The question of the signature, which, like writing, the Civil Code had
never seen fit to define, remained. Jurisprudence had however repeatedly
ruled that depending on context and type of document, a wide range of
methods could fulfill the role of a handwritten signature, as long as they
provided for identification and manifestation of consent. The working
group thus sought to define “the ordinary function of signatures” in those
two terms: “The signature necessary to complete a private act identifies the
person to which it is opposed and manifests his consent to the obligations
which result from the act. It is understood as the affixing of one's name
or other personal signs, or the use of a mechanism of identification inc-
orporated to the act or constituting a whole with it.”
Defining electronic signatures required only an extension of this basic
definition. Rather than rely on an explicit technology, the extension
merely required that they consist “in the use of a trustworthy process,
guaranteeing its link with the act to which it is affixed.” The group under-
lined that such trustworthy technologies already existed, namely crypto-
