Late in the 20th Century, I often joked in presentations that the popular television show, The X-Files, was actually the story of two records managers trying to find the files required by senior management, rather than evidence of aliens invading Earth. The show’s slogan, “The Truth is Out There”, was apocryphal and mysterious. Yet, regardless of the documents or evidence the protagonists collected, the oral testimony of those denying the existence of aliens always prevailed. In the show, as in American courts, written records are considered of limited value to prove the truth, even if those records come from computers.
In contrast, as part of my continuing research to formulate the first principles of quantum law, my working proposition is that the machine will become the superior witness, with electronic records gaining priority and preference to the oral testimony of any human.
Machines can, and already do, create, store, preserve, and produce layers and layers of data that document the keystrokes, machine operations, users, and other actors relating to any digital communication. The metadata for a specific message, Facebook post, or text exchange (with emojis of course) is just one layer of the information with which machines coordinate their own operations, and the interactions of the users with them.
Collectively, the performance logs, event logs, and other machine-generated records that are not even generally accessed in ordinary human activities but are preserved (and often responsible for the enormous growth rates in the volume of stored data), create a narrow and compelling story of what actually happened. When marshalled to prove a specific event, these digital files are likely going to be far more persuasive than any oral testimony.
Unlike a human witness testifying under oath, an attorney cannot cross-examine the data or try to force contradictions or other truths from the witness. The machine is merely doing its job—creating and presenting the records of activity. That those records may document and tell a story of behavior that violates the rule of law has no impact on the objectivity with which the machine works. The records are not influenced by the time of day, the fog blurring the vision of witnesses, the darkness of the room, or the infinite inventory of other variables that are often used to weaken or destroy the credibility of human witnesses.
This morning, CNN reported that part of the FBI investigation is focusing on a series of computer interactions between two servers—one associated with a Russian bank, Alpha Bank, and one located inside the Trump Organization. What I find astounding is that the balance of the story reports on the varied, multiple, and conflicting explanations presented by different human experts and representatives.
The bank’s officials blame the activity on spam marketing. But no such marketing occurred during the May-September, 2016 period during which the election campaign was at full speed. Other events or explanations are contradicted by other factual records.
The essential, simple truth is that computers will either hold the records of what transpired after the servers initiated contacts, or will hold evidence of records being deleted because they documented what transpired. Or, as has happened in several litigation matters in the United States, the drive or drives will have been strangely destroyed, replaced, or tossed out a window and then run over by a car.
We are at an awkward moment in our digital evolution, one in which we continue to hold onto the notion that human explanations of what happened will be persuasive without any examination at all of the computer records. That certainly seems the view of the Bank, as reported by CNN.
Our rules of evidence, in the United States, still hold business records (including computer-stored data) as ‘hearsay’ that is generally not admissible as evidence for the truth of the matter. There are exceptions (27 or more by last count), but there is still an inherent prejudice against computer data as evidence of the truth.
The pivot point is near. Society simply cannot tolerate the inefficiencies of denials or endless he said-she said arguments among human beings when computers have witnessed the events, communications, and activities on which questions of legal malfeasance or compliance can be resolved. Litigation as we know it, in which lawyers coach witnesses to present shades of the truth, will soon disappear.
Instead, we will look to the machines to be our preferred sources of the evidence of the truth on which the civil order of a society governed by a rule of law depends. In doing so, new rules and standards will replace the role of a fact-finding jury or judge tasked to evaluate the credibility of a witness. Those rules will define the minimum standards of security, access controls, and data integrity against which computer-stored information will be considered as admissible, authoritative evidence.
The evidence of the truth is to be found inside our machines. Whatever happened among the servers included in the scope of the FBI’s investigation will be proven, or forever left unresolved, based on the computer data.
Somewhere, in some machine or device, the truth is in there—all that must be done is to find the right machine.