Order Out of Chaos: Technology, Intermediation, Trust, and Reliability as the Basis for the Recognition of Legal Effects in Electronic Transactions

• Publication year: 2022

47 Creighton L. Rev. 387. ORDER OUT OF CHAOS: TECHNOLOGY, INTERMEDIATION, TRUST, AND RELIABILITY AS THE BASIS FOR THE RECOGNITION OF LEGAL EFFECTS IN ELECTRONIC TRANSACTIONS

ORDER OUT OF CHAOS: TECHNOLOGY, INTERMEDIATION, TRUST, AND RELIABILITY AS THE BASIS FOR THE RECOGNITION OF LEGAL EFFECTS IN ELECTRONIC TRANSACTIONS

MANUEL ALBA(fn*)

"The scientific reliability of such machines, electronic computing equipment, in the light of their general use and the general reliance of the business world on them can scarcely be questioned"(fn1)

I. INTRODUCTION

The most obvious assertion one can make about the Internet is that it has changed the way in which people relate to each other (collectively and multilaterally) in many ways. Besides its architecture and decentralized structure, as well as the possibilities it offers, there are two basic features of the open communications network that have conditioned this process. First, the Internet and relations conducted therein are technologically intermediated and consequently, technologically dependent. As a network for communication between persons and devices, the Internet is based on a huge set of constantly changing technological creations. Secondly, the network itself, and relations conducted through it, are also information based and information dependent. The Internet, as a set of inter-operating technological elements, is analogous to a living structure whose lifeblood, or at least one of whose vital elements, is information. Again, as a means for communications between people and devices, all that the Internet enables us to do is purely exchange information, which makes relations conducted through the net essentially information-dependent.

Big changes in reality, and in particular in relations so often caused by revolutionary technological developments, always result in likewise significant changes in the law. The expansion of the Internet and its use for many more purposes than the ones initially contemplated, opened the way to a whole myriad of new difficulties, which led to the production of new rules. Initially, these rules focused on contractual relations and the formal elements that they have been traditionally based upon, and subsequently addressed several other aspects of the net. Generally, these other aspects related to economic activities undertaken in the electronic space, criminal activities perpetrated through the net, or relations between individuals and the State or the administration. These rules in many cases set new principles and notions that are largely responsive to the above-referenced features of the Internet and relations established therein; principles and notions that very often reveal new dimensions of the complex relationship between technology, legal relations based or dependent thereupon, and the law.

This article focuses on one of such notions or elements, which is increasingly present in the law (sometimes with different names): reliability. Reliability is a non-defined term (in the language of civil lawyers, an "indeterminate legal notion") upon which the law occasionally relies for recognizing or determining legal effects. As a quality, reliability entails a judgment or measure relating to systems, devices, and procedures, including the technology they use, but in some cases reliability may even comprise of aspects relating to persons or entities. The purpose of this article is to explore the implications of this notion and its contents, as one may infer them from legal rules, mainly on grounds of how relations work in the electronic space, as well as some of the problems it poses and how they have been and could be solved. Accordingly, and to illustrate how this notion is being used, the second section of this article will try to synthesize and briefly discuss some of the laws that refer to reliability as the basis for recognition of legal effects and the concerns that lay behind them. This section mainly highlights that reliability relates to the desire of the legislator to promote trust in the use of electronic means and in online transactions. Moreover, the third section addresses the significance of trust in the electronic space and in electronic relations the market reaction to the trust generation needs in light of the information dependency of electronic environments. The fourth section attempts to explan how different existing legal policies approach the use and effects of electronic means in response to the need to promote trust. This section mainly concludes that all these policies, sometimes differentiated as security-oriented policies on one hand, and technology-neutral policies on the other, show different legal strategies, but have a common feature. These policies seek to promote trust by, in each case in a different manner, managing or resting on the reliability of technologies and procedures used in electronic communications. Finally, the fifth section addresses the contents and features of reliability as a legal notion in electronic commerce rules, its advantages, and its application for what we think is its main purpose: to provide the measure of the need to protect trust for the proper development of relations and activities on the Internet.

II. RISE AND DEVELOPMENT OF LEGAL POLICIES IN ELECTRONIC COMMERCE LAW IN THE SEARCH OF CERTAINTY

Electronic commerce law has been guided by the desire to enable the use of electronic means of communication with contractual purposes by eliminating the barriers that preexisting law imposed on such use.(fn2) The process leading to the approval of the electronic commerce laws at the national level was characterized, among other things, by an unprecedented degree of coordination between States,(fn3) basically through the work undertaken by United Nations Commission on International Trade Law ("UNCITRAL"). These first rules, which probably still constitute one of the most significant portions of this area of law, focus on formal elements, mainly on writings and signatures as formal requirements often included in private law rules. Accordingly, these first rules were grounded on a number of well-defined principles, which imposed non-discrimination of functionally equivalent media and technology neutrality, to promote media equality or neutrality.(fn4) From that perspective, and as formal or procedural law rules, their main achievement has been to help eliminate uncertainties relating to the legal validity of electronic communications and documents, including for evidentiary purposes.

The use of the Internet as a trading and contracting channel has spread since the first rules (including model rules), until it has become commonplace. Even at the outset of this process, it became clear there was a much greater challenge to contracting (and in general communicating) online than previously existing feasible legal barriers. Such a challenge relates to the reliability of records, communications, or in general information exchanged through the net. Other than the technological challenge the Internet may pose for some users, the information-dependent nature of the net and the electronic space imposes the need to verify, or at least assess the authenticity of, the information received as the first and basic input for making decisions. For our purposes, we may generally say that a communication, message, or document is authentic when it actually is what it purports to be,(fn5) regardless of the actual material truthfulness or accuracy of the information therein.(fn6) Although in a slightly less conspicuous way, as compared to the goals of lifting legal barriers, concerns relating to the authenticity of information have the core of legal policies implemented through electronic commerce laws since they came into existence. This basic idea, when applied to electronic communications, has been decomposed into three different factors: (1) authenticity (or authentication) as the identification of the source or sender of the message, communication, or document; (2) integrity of the information in the message, communication, or document; and (3) non-repudiation of the message, communication, or document (and therefore of its feasible legal effects) by its purported author, source, or sender.(fn7) There are some risks attached to the vulnerability of information electronically exchanged, with the ensuing threats to its authenticity, that are endemic to the electronic network and space because of its characteristics. The resulting legal approach has been that legal recognition of information and documents communicated through the net, and of the corresponding legal effects (with the resulting increased legal certainty), has been conditioned on the need to establish its authenticity reliably. This principle has manifested in several different examples. We will try to synthesize some of these examples to better illustrate how reliability has been progressively used for devising legal rules in this field.

The first example of this principle is the formulation of the rules on attribution of data messages. Rules on attribution state that a message, document, or signature shall be attributed to one person if it results from the acts of that person.(fn8) Under this literal structure, attribution becomes a material question and consequently requires proof of certain facts.(fn9) Such a formulation, without prejudice of its purposes,(fn10) relies on an ex post assessment of facts, and is consequently of...