 | Studies in bibliography |  |
IV
Texts written in analog media are naturally auto-historical: that is, whatever
their putative referent, they carry more or less legible traces of the history
of their being inscribed, a history which can be understood in relation to the
history of other events. In that respect such texts are like stone, which has its
place in the geologic record. But texts written in digital bits are essentially
ahistorical: as an ephemeral patterning of electrons they lack a fixed relation
to any historical moment. They are like water. In Walter Benjamin's terms,
they renounce the "aura" of historical authenticity in favor of an easy access
afforded by the perfect, fungible reproduction.[36]
Electronic text is naturally
synchronic; and only the artifice of experts can authenticate it by binding it
to the history of passing moments, through such devices as "digital timestamping"
based upon "hashing" the code.[37]
If in principle the fear of forgery, of electronically cooked books, is a
reasonable fear, in practice most people don't give it much thought, because
they leave it to the experts to worry about. And there have always been experts,
and our welfare. Illiterate monarchs[38] had to trust literate secretaries,
who practiced their craft in secret; and ordinary people rely on the arcane
verbal skills of lawyers and accountants. The computer technicians who would
guarantee, with secret and invisible code, the authenticity and freedom-fromtampering
of our electronic documents, do not have a categorically greater
power than such bureaucrats.[39] But the scale of control is different, and the
thralldom of a king to his clerk may be less disturbing politically than the
dependency of millions on the document-security systems and assurances of a
few. In the era of electronic writing, both of Blackstone's textual criteria—
durability and security—can be satisfied, but only by entrusting a new secretariat
of digital experts. What they do and how they do it will be a mystery:
their guild will be a mystery; and that will be the source of their power.[40]
On 30 June 2000 President Clinton advanced electronic commerce in the
United States by signing the Electronic Signatures in Global and National
Commerce Act (15 U.S.C. 7001). He signed the bill twice, once by passing a
signature card over a scanner (an act confirmed by his keyboarding his password,
paper with a felt pen.[41] This law took effect on 1 October 2000. It provides,
"with respect to any transaction in or affecting interstate or foreign commerce,"
that
a signature, contract, or other record relating to such transaction may not be denied
legal effect, validity, or enforceability solely because it is in electronic form; and . . . a
contract relating to such transaction may not be denied legal effect, validity, or enforceability
solely because an electronic signature or electronic record was used in its
formation.[42]
"[W]ills, codicils, or testamentary trusts" are specifically exempted from the
operation of this law, as are certain other documents (468). The law leaves it
to federal or state regulators "to specify performance standards to assure accuracy,
record integrity, and accessibility of records"—without, however, "requir[ing]
use of a particular type of software or hardware" (470).
The terms "accuracy" and "record integrity" conceivably overlap each
other, and so do not square precisely with Blackstone's concepts of durability
and security. They are not among the terms explained in the Definitions
section of the act. "Record integrity" presumably includes security against
malicious alteration, as well as against casual decay; and accuracy presupposes
a kind of self-identity and durability; so both of Blackstone's criteria remain
in play. However, in the electronic domain there is no reason to foreground
them by opposing them, as Blackstone does in the material domain: durability
and security are not at odds in cyberspace, where threats to durability
and security arrive from all sides. The E-Sign Act (to call it by its user-friendly
nickname) favors no particular medium: like Faust in his indifference to
paper, parchment, brass, or stone, the new law is open to using any tool at
hand: whatever works, so long as it is electronic. "The term `electronic signature'
means"—very broadly—"an electronic sound, symbol, or process, attached
to or logically associated with a contract or other record and executed
or adopted by a person with the intent to sign the record" (422).
This openness to possibility, this refusal to specify a narrow formal and
technical definition of what will count as an electronic signature, is consistent
with the long-standing informality of the law of signatures in Great Britain
and the United States. In this respect law differs from lore. Despite common
lore, often enforced by clerks, about the need to conform recognizably to
one's so-called "legal signature" (a lay concept without legal standing), one
can put one's name to paper in any form—and indeed not only one's name
but any graphic symbol at all—in an indefinite number of ways: it will count
as a signature, so long as it was affixed with the intent to sign. The longstanding
Uniform Commercial Code defines the word "signed" so as to include
"any symbol executed or adopted by a party with present intention to
comparably broad.
A key difference, though, is that under the old regime of paper a signer
would know experientially, and could choose, how she was signing. Under the
new, electronic regime, others, more expert, will know better and make the
choice for her beforehand, and will afterwards determine whether she has in
fact signed. The market, and the experts, will decide how we best will sign
our names in electrons. Similarly for the construction of the electronic text
or record as a whole: it will say what the experts assure.[44]
When T. S. Eliot complimented John Donne for being "expert beyond
experience" the preposition "beyond" marked an intensification. That is,
Donne, "[w]ho found no substitute for sense, / To seize and clutch and penetrate,"
experienced more than the ordinary person, and more thoroughly,
but in the same modality, through physical "sense."[45]
His expertise, though
hyper-experience, beyond the limits of ordinary experience, was still something
that he experienced. But the expertise of a postmodern technician is
"beyond" experience in a simpler, less rigorous way: it deals with a disembodied
reality inaccessible to and unassessable by the laity.[46]
The problem is one of scale—"proper magnitude," as Aristotle explained
in a different context: we can directly assess only what is not too large or too
small.[47]
Superstrings of galaxies and strings of DNA are alike outsized and
beyond experience.[48]
So are the carriers of bits and bytes. We must entrust
them all to the experts.
But don't we trust experts all the time? The reader who buys a copy of
King Lear trusts that the editor prepared the text in an expert way—if she
thinks about the question at all. (If not, the trust lies even deeper.) The
patient who accepts her physician's prescription trusts that it was framed
with appropriate expertise. Furthemore, the facts and principles that inform
both disciplines (textual criticism, medicine) are more or less available,
should one care to investigate them: the reader can learn enough about the
text of King Lear to second-guess her editor, or the patient can learn enough
about her ailment and treatment to provide "informed consent."[49]
Is the
case not the same with electronic text?
It is true that a producer or consumer of electronic text can educate herself
in the mysteries that would guarantee its authenticity, as a general matter.
But she will hardly be in a position to examine the coded electronic arrangements
that would secure a given transaction. Concerning the particulars
she must take much on faith. And to participate at all she will have no choice
in the matter, for the expertise of electronic experts is now a cultural given,
not an option.
Contrast the expertise of the "handwriting expert," or "examiner of questioned
documents," which over a century ago gained prestige and authority
in courts of law.[50]
On Jennifer Mnookin's analysis, testimonial expertise in
the identification of handwriting has been, if not quite a legal fiction, a judicial
construct; furthermore, recent decisions leave its future very much in
doubt.[51]
That is, the expertise of the handwriting expert is contingent, not
secure electronic inscription without imagining also the supervision (direct
or indirect) of an electronic expert, whose procedures and actions are beyond
ordinary inspection.
"Believe one who experienced it": "experto credite," urged Diomedes,
who had personally experienced combat against the hero of the Aeneid
(11.283). We, however, must believe our new secretary, the electronic expert,
not for what she has experienced, which we cannot assess, but for her credentials,
which we can, more or less.[52]
Such essential trust, circular, would
probably have disquieted Blackstone, an expert of the old school; but now,
in the new millennium, regarding littera scripta, there is no alternative to it.
I've presented versions of this argument to several academic conferences
over the last few years, and the reception has varied in instructive ways.[53]
Sometimes objections have been raised to Blackstone's ideologically suspect
preoccupation with questions of authority and property. However, once there
was a quick, impatient response from a law professor who is expert in internet
law. Though I can only paraphrase his response, the gist of what he said is
clear in memory: "You don't have to worry," he said; "trust us."
Walter Benjamin, "The Work of Art in the Age of Mechanical Reproduction,"
Illuminations, trans. Harry Zohn, ed. Hannah Arendt (New York: Schocken, 1969), 221: "the
technique of reproduction detaches the reproduced object from the domain of tradition.
By making many reproductions it substitutes a plurality of copies for a unique existence."
Benjamin was familiar only with imperfect, analog copies: his argument applies even more
strictly to digital reproductions of digital texts, which are indistinguishable from originals.
See Robert O. McClintock, "Marking the Second Frontier," Teachers College Record 89
(1988): 348: "Copies, in the familiar analog realm are costly to make and at best approximate,
leaving clear traces of what is the original and what is the copy. In the digital realm,
copies are nearly costless, [and] they are often indistinguishable from the original. . . ."
"[A]n illiterate king is a crowned Ass"—so Fulk the Good, Count of Anjou (d. c. 960),
is said to have disparaged King Louis IV of France; see The Plantagenet Chronicles, ed.
Elizabeth Hallam (New York: Weidenfeld, 1986), 22. Bertrand Russell, in his History of
Western Philosophy, 2nd ed. (London: Unwin, 1979), 432, attributes the same remark—
proverbial?—to John of Salisbury (d. 1180). Gibbon ridiculed an "illiterate king of Italy" in
similar terms; The History of the Decline and Fall of the Roman Empire, ed. David Womersley,
3 vols. (New York: Penguin, 1994), 2: 526 (ch. 39).
Richard J. Cox, The First Generation of Electronic Records Archivists in the
United States: A Study in Professionalization, Primary Sources and Original Works 3 (New
York: Haworth, 1994), 3-4. Regarding the secrecy of secretaryship in the Renaissance, see
Richard Rambuss, Spenser's Secret Career, Cambridge Studies in Renaissance Literature and
Culture (Cambridge: Cambridge UP, 1993), esp. 30, 47-48.
Robertson acknowledges "the difficulty of differentiating which forms of digital
signature are based on sufficiently reliable algorithms and which are not" ("Electronic
Commerce," 842). He envisions, ultimately, a national panel of experts: "The . . . issue of
who should determine whether a security procedure qualifies under the relevant standards
is . . . a difficult one. Ideally, a national or international accrediting body comprised of
scientists or information security experts might come into existence and develop standards
for security procedures in electronic commerce" (843). In the meantime he recommends
relying on a state-level "administrative agency," which would "employ experts necessary to
evaluate the procedure [and] take advantage of the knowledge in the information security
industry" (844).
Kasirer dryly remarks that "[t]he technological dimension of creating digital signatures,
involving a mix of computer science and applied mathematics called cryptography, is happily
not beyond the understanding of all lawyers" ("From Written Record," 57 n. 82). He
recommends, as providing "better explanations than those of the present author," a paper
by N. S. Bender, "Digital Commerce and the Utah Digital Signature Act" (no longer available
at the internet address that Kasirer gives, nor elsewhere online); and Sunny Handa and
Marc Branchaud, "Re-Evaluating Proposals for a Public Key Infrastructure," Law/Technology
29:3 (1996): 1-26. See also A. Michael Froomkin, "The Essential Role of Trusted
Third Parties in Electronic Commerce," Oregon Law Review 75 (1996): 49-115; and "The
Long-Term Preservation of Authentic Electronic Records: Findings of the InterPARES
Project" (2001), <http://www.interpares.org/book/index.htm>, consulted 13 Jan. 2003.
American Law Institute, Uniform Commercial Code, 9th ed. (Philadelphia: American
Law Institute, 1978), 16; cited with other relevant texts in Michael Hancher, "The Law
of Signatures," Law and Aesthetics, ed. Roberta Kevelson, New Studies in Aesthetics 11 (New
York: Lang, 1992), 230-232.
Similar misgivings arise in the case of electronic balloting. See Secure Electronic
Voting, ed. Dimitris A. Gritzalis, Advances in Information Security (Boston: Kluwer, 2003),
especially the chapter by Rebecca T. Mercuri and Peter G. Neumann, "Verification for
Electronic Balloting Systems," 31-42, which recommends establishing a corroborative "paper
trail."
T. S. Eliot, "Whispers of Immortality," Collected Poems, 1909-1962 (New York:
Harcourt, 1963), 45: "Donne, I suppose, was such another / Who found no substitute for
sense, / To seize and clutch and penetrate; / Expert beyond experience, / He knew the
anguish of the marrow / The ague of the skeleton. . . ."
Following up on some suggestive remarks by Jean Baudrillard about the relation
between the "tactile" and the "digital" (Simulations [New York: Semiotext(e), 1983], 115),
George P. Landow has identified "a single defining characteristic of the digital word" to be
the fact that, "[u]nlike all previous forms of textuality, the digital word is virtual, not
physical" ("Twenty Minutes into the Future; or, How Are We Moving Beyond the Book?",
in The Future of the Book, ed. Geoffrey Nunberg [Berkeley: U of California P, 1997], 215;
see also Landow, Hypertext 19). In describing the consequences of this basic categorical
shift Landow does not assess the mystification—and professional realignment—that it entails.
Aristotle's Poetics, trans. Leon Golden, ed. O. B. Hardison, Jr. (Englewood Cliffs,
NJ: Prentice, 1968), 11, 14-15 (chs. 6, 7).
Writing half a century before Blackstone, Joseph Addison drew attention to "the
proper Limits, as well as the Defectiveness, of our Imagination; how it is confined to a very
small Quantity of Space, and immediately stopt in its Operations, when it endeavours to
take in any thing that is very great, or very little. . . . The Object is too big for our Capacity,
when we would comprehend the Circumference of a World, and dwindles into nothing,
when we endeavor after the Idea of an Atome." Addison speculates that "this Defect of
Imagination may not be in the Soul it self, but as it acts in Conjunction with the Body."
Spectator 420 (2 July 1712); The Spectator, ed. Donald F. Bond, 5 vols. (Oxford: Clarendon,
1965), 3: 576-577. Bond cites precedents in Descartes and Hobbes (3: 576 n. 1).
Indeed, under current law, the physician is responsible for enabling such informed
consent. For a comprehensive account of clinical and legal aspects see Ruth R.
Faden and Tom L. Beauchamp, A History and Theory of Informed Consent (New York: Oxford
UP, 1986).
The handwriting "expert" gained a distinct authority in common usage even before
the courts recognized his claim to expertise. For a while the noun expert, which had meant,
generally, "[o]ne whose special knowledge or skill causes him to be regarded as an authority;
a specialist," acquired the particular meaning "one skilled in the study of handwritings"
(Oxford English Dictionary, sense 2.b., citing instances from 1858 to 1886). See also the
controversial treatise The Handwriting of Junius Professionally Investigated by Mr. Charles
Chabot, Expert (London: Murray, 1871). In the preface Edward Twistleton remarks that
"he had occasion . . . to consult Mr. Chabot, the Expert"; and the note appended to Chabot's
name details that "he has . . . during the last sixteen years exercised the profession of a
general Expert in handwriting" (xii).
See note 32. The leading case is Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993),
which threatens all the forensic "sciences" with touchstone questions that are supposed to
characterize genuine modern sciences; such as "whether the theory or technique in question
can be (and has been) tested, whether it has been subjected to peer review and publication,
its known or potential error rate and the existence and maintenance of standards
controlling its operation, and whether it has attracted widespread acceptance within a
relevant scientific community" (509 U.S. 579, 580). It is an open question whether handwriting
examiners will be able to pass these tests of credibility. Fingerprint examiners are
in a similar fix, though the outcome may differ; see Simon Cole, Suspect Indentities: A History
of Fingerprinting and Criminal Identification (Cambridge, MA: Harvard UP, 2001), 284286;
and Jennifer L. Mnookin, "Fingerprint Evidence in an Age of DNA Profiling," Brooklyn
Law Review 67 (2001): 13-70.
"[T]he role of the expert remains socially contingent: what is judged is not so
much the content of the evidence or advice, as the credibility and/or legitimacy of the
person giving that evidence or advice; if we trust the expert, we trust their expertise."
Wendy Faulkner, James Fleck, and Robin Williams, "Exploring Expertise: Issues and
Perspectives," Exploring Expertise: Issues and Perspectives, ed. Robin Williams, Wendy
Faulkner, and James Fleck (London: Macmillan, 1988), 4.
Second Annual Meeting, Working Group on Law, Culture, and the Humanities;
Wake Forest University, Winston-Salem, NC, March 1999. "Economies of Writing II," a
program arranged by the Society for Critical Exchange for the 116th Annual Convention of
the Modern Language Association of America; Washington, DC, December 2000. Internet
Research 2.0 (second annual conference), Association of Internet Researchers; University of
Minnesota—Twin Cities, October 2001. "Electronic Text and the Future of the Book," a
special panel for the Tenth Annual Conference, Society for the History of Authorship,
Reading, and Publishing (SHARP); Institute of English Studies, School of Advanced Study,
University of London, July 2002. "Technological Innovation and Cultural Change: Interdisciplinary
Perspectives in Media and the Public Sphere"; European Studies Consortium,
University of Minnesota—Twin Cities (with Universiteit van Amsterdam), September 2002.
| Studies in bibliography | |