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15 Digital Evidence & Elec. Signature L. Rev. i (2018)

handle is hein.journals/digiteeslr15 and id is 1 raw text is: EDITORIAL The editors of this journal have the privilege to read and review a number of thought-provoking articles about electronic evidence, from all over the globe. We now live in a world where the use of electronic devices is ubiquitous and electronic information is created, stored, retrieved an exchanged every day; millions of records and documents comprise potential evidence. Although electronic evidence has existed for decades, it has only been in the last twenty-five years that electronic forms of communication and information exchange have become the norm. This vast array of electronic evidence has led to the legislatures and courts in many jurisdictions to create rules applying to this new paradigm. It has caused us to question whether such rules are adequate, when often they have been developed based on the laws around paper. One such rule is the presumption that computers are reliable. This presumption is based on the understanding that a computer is made to function properly and produce the result expected of it. This presumption, developed in the mid to late 1990s, was designed to allow evidence produced by mechanical devices to be admitted into evidence without the need to prove the reliability of the device. Such a presumption makes sense, because it can save considerable court time, and the presumption can always be rebutted if there is evidence to the contrary, that is, the mechanical device is not, in fact, reliable.' The words 'mechanical instruments' include computers and computer-like devices, even though computers and computer-like devices are not mechanical instruments. A computer is made up of a number of components: the hard drive upon which data is stored, an operating 1 In 1997, the Law Commission formulated the common law presumption in the law of England and Wales that 'In the absence of evidence to the contrary, the courts will presume that mechanical instruments were in order at the material time.' Evidence in Criminal Proceedings: Hearsay and Related Topics, 13.13. system and application software. It is this complex combination of components that allow a computer to operate, and this can be immediately distinguished from a mechanical device with 'moving parts'. Any of the components within a computer could fail the 'reliability' test. However it is application software that we consider in more detail. The implication that software code should benefit from the assertion that it forms part of a mechanical instrument and is therefore 'reliable', should be challenged. Is software code 'reliable'? Judges often use the word 'reliable' to describe software code in relation to the presumption.2 No attempt has been made to explain what this means in relation to software in any jurisdiction. By way of example, the provisions of the Canada Evidence Act (R.S.C., 1985, c. C-5). Section 31.1 provides as follows: Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be. This is not contentious. The best evidence rule historically applied to all documents, which was replaced by a 'system integrity' requirement. Clause 31.2(1) provides for requiring the 'proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored'. However, the difficulty lies in the provisions of 31.3(a): For the purposes of subsection 31.2(1), in the absence of evidence to the contrary, the integrity of an electronic documents system 2 For full details, see Chapter 6 of Stephen Mason and Daniel Seng, editors, Electronic Evidence (4th edition, Institute of Advanced Legal Studies for the SAS Humanities Digital Library, School of Advanced Study, University of London, 2017), an open source publication. This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 4.0 International License

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