Blockchain Based Digital Signatures: Admissibility and Enforceability
The authoritative version of this file can be found at: https://github.com/mitmedialab/MITLegalForum/blob/master/topics-and-advance-readings/Blockchain-Based-Digital-Signatures--Admissibility-and-Enforceability.md
Members of Massachusetts Legal Hackers and the law.MIT.edu research team have been pursuing a unique approach to blockchain based cryptographic signature rapid development. To the extent this novel approach may provide a usable and repeatable method for testing the capability of relevant technology to provide predictable legal results, it may be on interest beyond academic, research and innovation hacking communities to a broader set of stakeholders.
Rather than starting with the idea of building out some technology because it is cool and innovative or attempting to catch the wave of a specific business opportunity this prototype effort is starting with the assumption that the technology is being used and focused on identifying whether or the extent to which it achieves predictable legal results. Gaps, conflicts and other suboptimal or anomalous legal results identified become inputs for new or different design and development goals in a way that can be traceably enginered to enable success criteria to be tested.
Background and Context
The following blog post reflects the overall concept and ideas propelling this research project of the Human Dynamics group at the MIT Media Lab: https://law.mit.edu/blog/core-identity-blockchain-project. This project is part of a broader research and development inquiry into the potential definition, scope, application and dynamics of computational law and legla processes.
The following Google Doc includes a draft of the Massachusetts Legal Hackers notes on how to conduct a relevant "witness examination" to model and evaluate the evidentiary aspects of this project and reflects other ways this novel process of "legal hacking" are being planned: https://docs.google.com/document/d/1OT8sxwOqO3F7QCTlqaCAhIjMKwbXNEKB40xluQ1DOco/pub
Aims and Goals
The approach of this rapid prototype style research and development project is intended to identity testable and engineerable legal requirements or other priorities as part of a standard, agile general design and build process. We expect and hope this exploratory prototyping method will generate constructive and valuable feedback and other inputs to the blockchain digital signature software tool and practical innovation design and build process.
The intention is that downstream implications of design-phase decisions will become visible and understood through the visceral experience of role playing litigation and that the crucible of evidentiary and other procedural rules can provide a clear and beneficial source of requirements, constraints and other priority capabilities. These requirements, constraints and design priorities, if correctly and completely derived, can become a buildable set of blueprints needed for refactoring the aglaw and engineering the legal processes needed to successfully execute and rely upon legal signatures in the digital, data-driven and algorithmic age.
Specifically, the scope of this research and development project starts with the assumption that the users of the technology have ended up in litigation and works backwards from that scenario. The idea is to test the legal sufficiency of blockchain based digital signatures for purposes of executing standard commercial contracts and also to explore whether the software implementation and manner of usage are likely to produce predictable legal results. By probing the jurisprudential event horizon in this way, we hope to reveal some combination of confirmation of our implementation path and probably also some unexpected hitches and snags along the way.
To define and describe a legally valid and verifiable scenario this approach borrows from and bencharks to standard types of "legal fact patterns" relied upon for law school tests, for bar exams and for mock trial competitions. In so doing, the all-to-common lawyerly tendency to avoid or deflect agreement upon clear, definite and dispositive criteria with slippery reactions such as "it depends" or "the analysis is fact specific" can be directly addressed by crafting each scenario to supply precisely those facts upon which predicting the legal outcomes depend.
Emerging Questions and Issues
Important questions and issues have already started to take form as we run through our draft "witness examination" scenario. Among other questions, we have discussed whether:
- the parties have access to anybody who is qualified and has standing to lay a foundation for admissibility through first hand or expert testimony
- the cryptographic and other verifiable data is correctly aligned to the specific activity and records necessary to legally attribute the technical signature processes to a given legal party (ie: can we prove which person in fact executed the digital signature?)
- the purported signatory in fact had the requisite legal intent to sign (ie to authenticate, be bound by, assent to, attest, acknowledge, agree, authorize, etc) the contract or other record in question
- the right evidence was created and properly maintained sufficiently to prove a valid chain of custody occurred_
- ...and many more hitches, snags and snafus!
Scope and Context
The longer-term approach to honing valid and verifiable legal scenarios would presumably rely upon carefully, thorougly and openly publishing each version of draft scenarios (including technical use cases and legal fact patterns) hand-of-glove with each version of the technnology implementations, workflows and other surrounding processes for expert evaluation and broad feedback. The purpose of each published version of a scenario would be to come ever closer to rendering the law and legal processes underlying technology as something that is also engineerable as part of the design of the overall systems, methods and processes within which the technology exists and operates.
Even as banking, transportation, energy and other sectors have become or are becoming engineerable as digital systems, a driver propelling this project is to identify one or more verifiable and reusable approaches enabling legal dimensions of technology to be designed, tested, deplployed and upgraded as part of the business, public sector and social systems that exist increasingly within digital, networked environments.
It is postulated that currently external and subjective yet important and knowable legal requirements and constraints can be explicitly incorporated into a broader, standard holistic technnology design, testing and deployment of technology and the processes or systems surrounding the technology.
One of the key approaches of this project is to develop and use a method for composing testable scenarios in a way that relects and tracks exactly the level of abstraction and precision needed for a legal fact pattern to enable expected and "correct" legal analysis and legal conclusions. It is assumed that a sound starting point for establishing the needed level of abstraction and precision can be found by benchmarking the same legal fact patterns used to test the capability of a person to graduate from an accredited law school, to win a litigation competition and to earn a license for the practice of law, namely: law school tests, bar exams and mock trial fact patterns.
This is literally a process of "evidence-based" requirements gathering.
Interested to follow along from afar? Want to grab an oar and help us row? This activity is being pursued as a participatory collaborative event series that is free and open to the public. To participate and contribute, start by joining Massachusetts Legal Hackers and RSVP to the next meetup event related to this project right here: https://www.meetup.com/Massachusetts-Legal-Hackers and get updates/announcements on the broader research from MIT by signing up to our email list right here: law.MIT.edu/contact.
The above file is offered as a topic or advance read for Rebooting the Web of Trust in Boston, October 2017.