legalxml-courtfiling — archive

RE: On the Entity Seal in Court Filings

From: John Messing
To: [email protected]
Date: Tue, 24 May 2005 19:42:00 -0000

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legalxml-courtfiling message

Subject: RE: On the Entity Seal in Court Filings

From: John Messing <[email protected]>
To: "Winters,Roger" <[email protected]>
Date: Tue, 24 May 2005 12:41:53 -0700

I thank Roger for his comments but I think in all fairness the proposal
is not mine. A group of us including Dallas Powell, Nick Pope and I
were asked to put the matter in a form that the committee could
consider. I believe that I can only take a small portion of the credit
for it.

I think Roger's views are court-centric and come from experience with
paper. A problem with electronic records is that they can be accessed
and changed in undetectable ways, which is not true of paper.
Therefore, when he suggests that one simply open the file and read it
to see if has changed, a question immediately is presented --how do we
know it is the authentic file, and that it has not been altered?. The
fact that it has been stored in the court is certainly better than if
it was not under the custody of the clerk but being in the custody of a
court system or clerk no longer has the same assurance of infallibility
as with paper. Electronic documents are simply constructs of one and
zeroes that are interpreted by machines to display a particular result.
If we pretend otherwise, then we risk destroying the credibility of
legal records and the authority of the courts. Fortunately, this is
avoidable if we prudently adopt technical means that help determine if
the ones and zeros have changed.

Roger's position is a little like saying we will never need geiger
counters in courts because everyone knows that they are not susceptible
to radiation.

A problem with relying solely upon hash values is that they can be
substituted if one has access to a system in order to substitute the
true hash with the hash of an altered file. With an altered file and
its own unique hash, a risk is presented that an altered document will
pass as authentic, even if it has been altered. Once hashes are
encrypted, the situation is different. One can no longer simply
substitute a new hash. An additional layer of difficulty has been
introduced, which requires also obtaining a unique key, that provides a
considerable level of increased protection.

No one has suggested to my knowledge that a tamper-evident seal will
supplant the laws of evidence. On the contrary, such devices are a way
to determine the state and technical properties of evidence. But human
decision makers, in this case judges, will have the final say.

It is better to be safe than sorry, particularly where court records are
concerned. And properly constructed applications will not complicate the
work of clerks. They should act transparently.

My two cents.

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