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Blockchain for Recordkeeping: Help Or Hype? See discussions, stats, and author profiles for this publication at: https://www.researchgate.net/publication/309414363 Blockchain for Recordkeeping: Help or Hype? Technical Report · October 2016 DOI: 10.13140/RG.2.2.21736.67842 CITATIONS READS 0 1,928 1 author: Victoria Lemieux University of British Columbia - Vancouver 47 PUBLICATIONS 151 CITATIONS SEE PROFILE Some of the authors of this publication are also working on these related projects: Blockchain technology for record keeping: Help or Hype? View project Records in the Cloud View project All content following this page was uploaded by Victoria Lemieux on 25 October 2016. The user has requested enhancement of the downloaded file. Blockchain Technology for Recordkeeping Help or Hype? A Background Paper “Blockchain Technology for Recordkeeping – Help or Hype?” a SSHRC Knowledge Synthesis Grant Study on “How can emerging technologies be leveraged to benefit Canadians?” Investigator Dr. Victoria L. Lemieux [email protected] Volume 2: Appendices This research was supported by the Social Sciences and Humanities Research Council of Canada Blockchain Technology for 33 Recordkeeping Table of Contents Report………………………………………………………………………..Volume 1 Appendix A – Background Paper..................................................................34 Appendix B - Terminology Report …………………………………………….103 Appendix C – Blockchain Companies ……………………………………….142 Appendix D – Blockchain Research Initiatives ………………………………155 Appendix E – Consultation Collaborators……………………………………..160 Appendix F – Dissemination Coverage ………………………………………..161 Appendix G - A Primer on Records and Recordkeeping…………………..162 Appendix H - A Primer on the Blockchain and how it operates…………..165 33 Blockchain Technology for 34 Recordkeeping Appendix A – Background Papers The papers in this appendix should be viewed as works in progress and not as polished reports representing the final views of the project team. 34 Blockchain Technology for 35 Recordkeeping The Law Beyond Trust: Legal Implications of Blockchain Technology for Records Management A Background Paper “Blockchain Technology for Recordkeeping – Help or Hype?” a SSHRC Knowledge Synthesis Grant Study on “How can emerging technologies be leveraged to benefit Canadians?” Prepared by: Dara Hofman, Doctoral Student, Archival science for Principal Investigator Dr. Victoria L. Lemieux The University of British Columbia, Vancouver, BC, V6T 1Z1 Phone: 604 822 2404 E-Mail: [email protected] 35 Blockchain Technology for 36 Recordkeeping Table of Contents INTRODUCTION ................................................................................................................................................. 36 FINANCIAL REGULATION ................................................................................................................................. 37 PROPERTY RIGHTS ............................................................................................................................................. 38 REAL PROPERTY ................................................................................................................................................. 39 PERSONAL PROPERTY ....................................................................................................................................... 40 INTELLECTUAL PROPERTY .................................................................................................................................. 41 "SMART CONTRACTS" AND CONTRACT LAW .................................................................................................. 41 DRAFTING, SPECIFIC PERFORMANCE AND EQUITABLE PRINCIPLES .............................................................. 42 “SMART PROBATE”: TRUSTS AND ESTATES ........................................................................................................ 42 EVIDENCE ......................................................................................................................................................... 43 CONCLUSION ................................................................................................................................................... 44 REFERENCES ...................................................................................................................................................... 44 Introduction The relationship between law and archival science is an ancient one, based upon society’s need for trust. Law exists largely to administer and mediate rights, providing citizens a trusted framework for asserting their rights vis à vis one another and resolving disputes when those rights come into conflict. The existence of a legal framework also serves to encourage trust between citizens. “By giving legal assurances of remedies for breaches of trust, the law makes parties more likely to be both trusting (thanks to the hedging effect of the legal remedy) and trustworthy (to avoid sanctions). The broad category of institutional-based trust “is dependent on legal or other actions to enforce trusting behavior’.”1 The law, in turn, must have trustworthy records in order to provide remedies that provide a sense of justice; without a trustworthy copy of a contract, for example, a court cannot say if a breach has occurred, and if it has, which parties are owed what remedy. Archival science has developed to meet the need for trustworthy records. However, advancing information and communication technologies (ICTs) have required us to continually update our paradigm for assessing the trustworthiness of records, especially as records are increasingly born-digital. Now, some scholars assert that, thanks to blockchain technology, we’re moving beyond trust, to an era of “trustless transfer” leading to an extralegal system of rights management (Baker, 2015). Blockchain technology, also known as distributed ledger technology (DLT), is not yet a concept with an agreed upon definition. For the purposes of this paper, we will define blockchain as a technology that records transactions in a distributed ledger, using cryptographic hashes to record and verify each transaction (Lemieux, 2015). The most famous blockchain, the Bitcoin blockchain, uses as anonymized public ledger, which authenticates blocks using “proof of work,” where users “earn” the ability to verify blocks on the chain by using their computer processing power to solve equations. However, the Bitcoin blockchain is not the only possible configuration. Private blockchains – such as the one being experimented with by the consortium R3CEV, which includes a number of major banks – are also possible. Authentication by “proof of stake,” in which users buy their right to authenticate blocks by spending resources is also a possibility. Each of these configurations has different operational risks, discussed more fully in Walch, 2016, that in turn, alter the liabilities and legal risks that attach to the blockchain as recordkeeping system. 1 Cross, 2003, p.1484). 36 Blockchain Technology for 37 Recordkeeping Because blockchain is a “trustless” system, it brings records – including legal records – into a new paradigm, whereby rights are administered and mediated, not by a trusted institution or third party, but by the technology. However, this “trustless” system does not actually move us beyond the need for trusted third parties, nor does it remove the enormity of the law in preserving rights and ensuring public trust. As Victoria Lemieux explains, at least with regards to systems where the records themselves are created and maintained outside of the blockchain: “Does using the Bitcoin Blockchain ensure the trustworthiness of the records? No. Trustworthiness is only guaranteed if the records are both reliable and authentic.2 Blockchain solutions do not address the reliability of records, and there are many features of the Bitcoin Blockchain that may negatively affect the authenticity of information as well.” (2016). The issue or reliability is different with regards to cases such as smart contracts or smart probate, where the record itself is hashed to the blockchain. In such a case, reliability is inherently bound up in the blockchain.3 Blockchain technology has largely been associated with cryptocurrencies heretofore, and much of the legislation and regulation that directly addresses blockchain thus far comes from financial and securities law. However, blockchain technology has potential recordkeeping uses far beyond cryptocurrency, and those uses have significant and wide-ranging legal ramifications. Financial uses being explored include payment systems, corporate share issuance, and same day Treasury and security settlement. Potential uses outside of finance include smart contracts and wills, blockchain protection of personally identifiable information in data lakes, and automating back office procedures. Because of the breadth of potential uses for blockchain technology, a substantial number of legal issues are raised by its implementation, including financial regulation, property rights, contract drafting and enforcement, trusts and estates, information security and privacy law, and the law of evidence and rules of civil and criminal procedure. Each of these areas encompasses an extremely large body of law; to address each area and its interrelationship with the blockchain in depth could generate papers, if not books. This paper explores the broad, common legal issues raised by the use blockchain for recordkeeping. Furthermore, while these issues are
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