National Library Bibliothèque nationale 1*1 of Canada du Canada Acquisitions and Acquisitions et Bibliographie Services services bibliographiques 395 Wellington Street 395, rue Wellington Ottawa ON K1A ON4 Ottawa ON K1A ON4 Canada Canada Your fiie Votre rdfiirence Our file Nolre réfBrence The author has granted a non- L'auteur a accordé une licence non exclusive licence dowing the exclusive permettant à la National Library of Canada to Bibliothèque nationale du Canada de reproduce, loan, distribute or sell reproduire, prêter, distribuer ou copies of this thesis in microform, vendre des copies de cette thèse sous paper or electronic formats. la forme de microfiche/nlm, de reproduction sur papier ou sur format électronique. The author retains ownership of the L'auteur conserve la propriété du copyright in this thesis. Neither the droit d'auteur qui protège cette thèse. thesis nor substantial extracts ftom it Ni la thése ni des extraits substantiels may be printed or otherwise de celle-ci ne doivent être imprimés reproduced without the author's ou autrement reproduits sans son permission. autorisation. Abstract A trustworthy record is one that is both an accurate statement of facts and a genuine manifestation of those facts. Record trustworthiness thus has two qualitative dimensions: reliability and authenticity. Reliability means that the record is capable of standing for the facts to which it attests, while authenticity means that the record is what it claims to be. The trustworthiness of records as evidence is of particular interest to legal and historical practitioners who need to ensure that records are trustworthy so that justice may be realized or the past understood. Traditionally, the disciplines of law and history have relied on the guarantee of trustworthiness inherent in the circumstances surrounding the creation and maintenance of records. For records created by bureaucracies, that trustworthiness has been ensured and protected through the mechanisms of authority and delegation, and through procedural controls exercised over record-writers and record-keepers. As bureaucracies rely increasingly on new information and communication technologies to create and maintain their records, the question that presents itself is whether these traditional mechanisms and controls are adequate to the task of verifying the degree of reliability and authenticity of electronic records, whose most salient feature is the ease with which they can be invisibly altered and manipulated. This study explores the evolution of means of assessing the trustworthiness of records as evidence from antiquity to the digital age, and from the perspectives of Iaw and history; and examines recent efforts undertaken by researchers in the field of archival science to develop methods for ensuring the trustworthiness of electronic records specifically, based on a contemporary adaptation of diplomaties. Diplornatics emerged in the seventeenth century as a body of concepts and principles for determining the authenticity of medieval documents. The exploration reveals the extent to which legal, historical, and diplornatic methods operate within a framework of inferences, generalizations and probabilities; the degree to which those methods are rooted in observational principles; and the continuing validity of a best evidence principle for assessing record trustworthiness. The study concludes that, while the technological means of assessing and ensuring record trustworthiness have changed fundamentally over time, the underlying principles have remained remarkably consistent. TABLE OF CONTENTS Abst ract Introduction Chapter 1 The Evolution of Methods for Assessing the Trustworthiness of Documentary Evidence: From the Justinian Code to Langlois' and Seignobos' Introductiun to the Sfudy of Hisfory Chapter 2 Modern Rules Governing Docurnentary Evidence at Common Law and in Canadian Statutory Law Chapter 3 Modern Historical Methods for Assessing Record Trustworthi ness Chapter 4 Ensuring the Trustworthiness of Electronic Records: Contemporary Archival Diplornatics Conclusion Bibliography Introduction Trust is "confidence in or reliance on some quality or attribute of a person or thing, or the truth of a statement."' When something is said to be trustworthy it means that it deserves, or is entitled to, trust or confidence. When a record is said to be trustworthy, it means that it is both an accurate statement of facts and a genuine manifestation of those facts. Record trustworthiness thus has two qualitative dimensions: reliability and authenticity. Reliability means that the record is capable of standing for the facts to which it attests, while authenticity means that the record is what it claims to be. These two qualities -- reliability and authenticity - are of particular interest to legal and historical practitioners. Since antiquity, records have been prese~edas arsenals of law and history. The complementary relationship between the disciplines of law and history is evident in their evolution. From antiquity until the fifteenth century, the two disciplines were linked together through the rhetorical tradition. During the sixteenth and seventeenth century, as historical and legal scholarship gradually moved away 'Trom the literary analysis of classical texts and toward an assessrnent of the accuracy of somewhat more recent historical dataIv2 the examination of records as evidence became a central concern of both disciplines. Historians and lawyers alike "sought to date documents and assess the good faith, knowledge, and credibility of those who initially had prepared them.'13 The need to authenticate medieval documents in particular led to the development, in the seventeenth century, of the science of diplomatics. By the eighteenth century, diplornatic science had been introduced into European faculties of law and by the nineteenth century, it had become one of the ancillary disciplines of history. It formed, moreover, a part of the foundation for the discipline of archival science, which emerged in the same period. The needs of law and history are, similarly, complementary. Legal and historical practitioners need to ensure that records are trustworthy so that justice rnay be realized or the past understood. Traditionally, they have relied on the guarantee of tnistworthiness inherent in the circumstances surrounding the creation and maintenance of records. For records created by bureaucraties, that trustworthiness has been ensured and protected through the mechanisms of authority and delegation and through procedural controls exercised over record-writers and record-keepers. Reliability typically has been associated with the creation of a record, and refers to the completeness of its intellectual form and the degree of control exercised over its creation procedures, while authenticity has been linked to the record's mode, status, and form of transmission, and the manner of its preservation and custody. ' Mord English Dictionary, vol. 2 (New York: Oxford University Press, 1WI), S.V. 'Ynist." 2 Barbara J. Shapiro, Probabilify and Ceftainty in Seventeenth Century England: A Study of the Relationships befween Natural Science, Religion, Hisfory, Law and Literatwe (New Jersey: Princeton l$Iversity Press, 1983). 164. Ibid. As bureaucracies rely increasingly on new information and communication technologies to create and maintain their records, the question that presents itself is whether these traditional mechanisms and controls are adequate to the task of verifying the authenticity and degree of reliability of electronic records whose rnost salient feature is the ease with which they can be invisibly altered and manipulated. The technological complexity and dynamic nature of electronic record-keeping systems necessitate new legal interpretations of what constitutes "a circumstantial guarantee of trustworthiness" and "best evidence". Legal commentators note that, with the increasing use of cornputer-generated evidence in the courtroom, courts must determine, "whether the legal system is in need of new rules of evidence or stricter foundation requirements to deal adequately with computer-generated evidence.'* Recent historical literature addressing the implications of information technologies for historical methodology also reflects historians' concern that the complexity and volatility of electronic records may defeat their efforts to establish the authenticity of such records and to assess their likely degree of reliability. During the spring of 1996, the trustworthiness of electronic records became a focal point of hearings held by the Canadian Commission of lnquiry into the Deployment of Canadian Forces to ornal lia.^ The Commission was established in 1995 for the purpose of investigating "the chain of command system, leadership, discipline and actions and decisions of the Canadian Forces, as well as the actions and decisions of the Department of National Defence in respect of the Canadian Force's participation in the peace enforcement mission in Somalia during 1992-93." As part of its investigation, the Commission requested access to National Defence Operations Centre (NDOC) logs, which were maintained in an automated database and which contained a record of al1 message traffic coming into National Defence headquarters from Canadian Forces' theatres of operation. During its review of the logs, the Commission discovered "a number of unexplained anomalies, including entries containing no information, entries missing serial numbers, and entries with duplicate serial