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

Posted on by Ben Rothke

When the IBM PC first came out 31 years ago, it supported a maximum of 256KB RAM.  You can buy an equivalent computer today with substantially more CPU power at a fraction of the price.  But in those 31 years, the information security functionality in which the PC operates has not progressed accordingly.

In Burdens of Proof: Cryptographic Culture and Evidence Law in the Age of Electronic Documents, author Jean-François Blanchette observes that the move to a paperless society (a completely paperless society is unrealistic, as articulately detailed in The Myth of the Paperless Office) means that paper-based evidence needs to be recreated in the digital world. It also requires an underlying security functionality to flow seamlessly across organizations, government agencies and the like.  While the computing power is there, the ability to create a seamless cryptographic culture is much slower in coming.

The so called Year of the PKI has been waiting for over a decade, and after reading Burdens of Proof, it is evident why a large-scale PKI will be a long time in coming.  More than that, getting the infrastructure in place in a complex environment that exists in the USA with myriad jurisdictions and technologies may prove ultimately to be impossibility. 

The irony is that an effective mechanism for digital authentication would seem to be an indispensable part of the digital age. The lack of such an authentication infrastructure may be the very reason that fraud, malware, identity theft and much more, are so pervasive on the Internet. 

The premise of this fascinating book is that the slow decline from the use of paper from a legal and evidentiary perspective has significant consequences. For the last few hundred years, paper has been ubiquitous in modern life; from legal and health records, school, employment and everything in between.

The book details the many challenges that businesses and governments face in moving from a paper-based record society and the underlying trust mechanisms that go along with it, to a new digital-based record system, and how a new framework is needed for such a method.  The book details part of that new framework.

The book opens with an observation on the authenticity of President Obama’s birth certificate.  While Blanchette is not a birther, he does note that if the moral authority of paper records has diminished, then the electronic documents replacing them, which are what the Obama administration provided, appear to be even more malleable. And that is precisely the issue that he addresses. 

Blanchette details a compelling story and writes it as an insider. He was a member of a task force appointed in 1999 by the French Ministry of Justice to provide guidance on the reform of the rules governing the admissibility of written evidence in French courts, into a digital format.

The first few chapters provide an excellent overview of the history of cryptography.  Chapter 3 – On the Brink of a Revolution – gives an excellent summary of cryptography from 1976 on, starting with seminal research that was done by Diffie and Hellman, and Rivest, Shamir and Adleman (RSA).

In chapter 5, Blanchette details his narrative about how France embraced and moved to a more digital governmental framework.  He notes that the challenge was that France was the country that gave bureaucracy its name, and is a place where citizens must carry at all times their papiers d'identite and is a society enmeshed in paper.  Blanchette writes of the many French bureaucracies that had to let go of their protectionist stances as they moved down the path to letting electronic documents have legal validity. 

Blanchette writes that in France, one of the biggest impediments to moving to a digital framework were the French civil-law notaries or notaire. French notaries are much more powerful than a notary public in the US, and are closer to being what a paralegal does in the US. 

The French notaire are a wealthy and powerful monopoly when it comes to issues of purchases, sales, exchanges, co-ownerships, land plots, leases, mortgages and the like.  A notaire can form a corporation prepare commercial business leases and much more. The entire French notary profession had been dependent on its monopoly to grant authenticity, and no definition of electronic authenticity could emerge and succeed if it did not meet its criteria.

While paper trust may be intuitive now, Blanchette writes that it wasn’t always the case.  When documents were first created (whenever that may have been), they did not immediately inspire trust.  As with other innovations, there was a long and complex period of evolution needed to gain accepted levels of trust.

In chapter 6, the books notes that many people assumed cryptography would be the mechanism that would inspire trust in the digital world.  Blanchette writes that the mistake cryptographers made and sometimes continue to make; is that they often assumed that the properties of cryptographic objects will translate transparently into the complex social and institutional setting in which they are deployed in. 

This was incisively noted in Why Johnny Can’t Encrypt, which was a usability evaluation of PGP by Whitten and Tygar.  The author’s observed that user errors cause or contribute to most computer security failures, yet user interfaces for security still tend to be clumsy, confusing, or near-nonexistent.  While the paper was written in 1999, most of its findings are still relevant.

Chapter 6 provides 3 fascinating case studies that show have different approach to security technology and cryptographic deployments are imperative in ensuring that they work.

In just under 200 pages, the books 7 chapters provide both a fascinating overview of the history of cryptography, in addition to showing how cryptography can be effectively used to authenticate digital documents.  The book also has a high-level framework (a comprehensive framework would require at least 5 times as many pages) for an effective cryptographic framework for digital trust.

As Blanchette notes many times in the book, the challenge with getting digital signatures to work is not with the technology; rather it is with the underlying societal infrastructure in which to make it work.  France was brought kicking and screaming into the age of electronic authentication, and is one of the few countries that have had such widespread success. 

The book is a fascinating read that details how frustrating difficult it has been to create a comprehensive mechanism for digital authentication.  The book raises many beguiling questions, and Blanchette is smart enough to notes that there are no simply answers to these multifaceted problems. 

Burdens of Proof: Cryptographic Culture and Evidence Law in the Age of Electronic Documents is both a fascinating overview of the history of paper and electronic authentication, in addition to providing a synopsis of what it will take to make create a cryptographic culture, where digital evidence will be as accepted in the courtroom, as its antique paper cousin.

Ben Rothke

Senior Information Security Manager, Tapad

Business Perspectives

data security

Blogs posted to the RSAConference.com website are intended for educational purposes only and do not replace independent professional judgment.  Statements of fact and opinions expressed are those of the blog author individually and, unless expressly stated to the contrary, are not the opinion or position of RSA® Conference, RSA Security LLC or any other co-sponsors. RSA Conference does not endorse or approve, and assumes no responsibility for, the content, accuracy or completeness of the information presented in this blog.

Share With Your Community