The case for blockchain in law and the courts

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When cryptocurrencies first emerged, supported by the public transaction ledger called blockchain, many commentators felt it might actually be the invention of the latter that would inspire the real change in other sectors. It’s now looks like law could be one such sector.

The main reason for this lies in the potential blockchain has to transform the level of security that is used to protect evidence during the process of a trial. This is more vital than ever as the UK courts are currently undergoing a £1.2bn modernisation programme, that includes the digitisation of many processes to improve efficiency.

These will likely lead in the long term to the elimination of paper in the trial environment, as the often-painstaking process of using paper bundles continues to be digitised and the information more easily accessed, both in and outside of the court. These systems are already in use in many of the UK’s Crown and Family courts, as well as various international arbitration courts such as the UAE.  

While modernising the system is advantageous from a cost, effort and time perspective, using technology always carries new and unique risks. One such difference between physical paper evidence and digital evidence for example is that digital evidence can be modified.

In many ways security concerns such as these have played their role in the legal sectors conservative take up of new technology. The viruses and bugs prevalent in the early internet era existed because tech companies prioritised bottom line profits over safety. Similar oversight in the justice system could have an unwanted impact on trial outcomes in a system where trust is paramount.

This is why the emergence of Blockchain is particularly significant. The way Blockchain collects data means it does so on every transaction that occurs in the storage of an item, providing a full audit trail of action. As such, once a piece of evidence has been entered into the online system it cannot be altered or falsified. This is down to a unique combination of cryptography, which renders the data that is stored immutable and then its openness, which is how it is distributed among a peer-to-peer set of participants.

Thinking of security

Crucially, whilst blockchain is a public artefact, inspection of blockchain doesn’t reveal evidence, only IDs and hash codes, creating an incorruptible digital ledger. This eliminates the possibility that evidential material submitted to court can be repudiated, removing any questions of legitimacy from the trial process as it is not possible to photo-shop a picture or splice a video.

With blockchain supporting digital systems such as e-bundles all parties involved in a trial can take confidence that they all have access to the same version of documents and evidence, without any concerns over the security of the data involved. This is not always possible when each party has ten lever arch files, all of which need to be updated and handled individually.

The move to e-bundles will also work to speak to wider environmental concerns sparked by the legal sector. The courts are said to produce a pile of paper the size of the shard every four days. Modernisation is badly needed.

Furthermore, paper has become burdensome to the courts as it is expensive throughout its life cycle and has an unsustainable ever-growing cost that is adding up for local governments. While the initial purchase price of a piece of paper is well below 1p, once other factors are taken into consideration such as storage and transport, it can end up costing as much as 25p per page.

Citizens depend on local governments to provide a diverse array of legal services, but they are under pressure from rising case demands and diminishing budgets from austerity. Cost effective technology has therefore become increasingly necessary.

Another factor to contend with is that local governments must comply with strict data protection laws to avoid unintentional disclosure that has significant human and financial costs. Security is often one reason the legal sector must be more conservative in its approach to innovation, given how important trust is in the system.

What can blockchain provide?

It has therefore been at the centre of the systems being introduced to ensure secure, dependable justice. This means full disclosure and a full audit trail of action combined with a secure cloud-based platform for the sharing of sensitive data. It’s essential in supporting the systems that provide protection for potentially life-changing data and evidence.

Take the case of Lorraine v Markel American Insurance Co. In this case the judge ruled that neither party had provided admissible evidence and went on to give guidance on the admissibility of Electronically Stored Information (ESI). Amongst the judge’s five separate points he said that one must be able to prove that the ESI present is indeed what one claims it to be, going on to describe methods for authenticating evidence which include hash values and meta-data analysis.

In his fourth rule, he said that the evidence provided should either be original or an admissible duplicate. With courts demanding a high bar for the admissibility of electronic evidence, blockchain technology presents a solution to confirming the originality of evidence used, whilst also helping to mitigate against the human element risk associated with all electronic data systems.

So clearly courts will be demanding a high bar for the admissibility of electronic evidence. The solution to this therefore requires that there can be no doubt about whether evidence presented in the court room is what was originally submitted to the electronic evidence bundle.

Therefore, evidence management systems that do more than simply provide the original electronic file in the court room will need to answer the simple question: Am I looking at something that is irrefutably the same as the original electronic evidence loaded into this system?

Blockchain can provide this.

It can also provide a platform for further innovation in the legal sector going forward. With security guaranteed, the global legal sector can then continue to confidently pursue innovation and embrace the new digital age.  

Paul Sachs, founder and CTO, CaseLines
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