Medium Messages

A new Bill has been introduced to the New Zealand Parliament. It is called the Legislation Bill. It is meant to be the “one-stop shop” for the law relating to legislation. It is described in a New Zealand Law Society posting as “one legislation bill to bind them all”.

The Bill has some very good proposals. One relates to secondary legislation.  It will  give New Zealand a single, official, public source of legislation, excluding only legislation made by local authorities.

Over 100 agencies are empowered to make secondary legislation on a wide range of matters such as food standards and financial reporting standards. There is no single source for the legislative instruments, many of which are published on agency websites or in gazette notices. The Bill will make it easier to find and access secondary legislation by requiring it to be published on the New Zealand Legislation website alongside Acts of Parliament. This is an excellent move. It will enhance easy access to legal information.

In addition the Bill proposes to replace the Interpretation Act 1999. One of the terms that the Interpretation Act defined was “writing”. That definition reads as follows:

writing means representing or reproducing words, figures, or symbols in a visible and tangible form and medium (for example, in print).

Now that may have been excusable in legislation enacted in 1999 but in fact that definition was placed in the Interpretation Act in 2003 by section 38 of The Electronic Transactions Act 2002. When I saw that the Interpretation Act was being repealed and updated in the Legislation Bill I thought that we had a chance to see an updated medium neutral definition of writing.

But lo – here is the “new” definition which reads as follows

writing means representing or reproducing words, figures, or symbols in a visible and tangible form and medium (for example, in print)

No change at all. So why is this a problem? Simply that it does not reflect the reality of written material in the Digital Paradigm. It holds to the old association of the message (in written form) with the medium (paper) hence the exemplification “in print”.

I have no difficulty with the suggestion that writing is a representation of words, figures or symbols. It is simply a means of encoding and preserving the ephemerality that is oral language or orally based concepts. And of course, writing has to be visible.

But does it have to be tangible?

This is where we run into a problem – one that the law seems to have difficulty understanding in the electronic age. The issue of tangibility has nothing to do with the message. It has everything to do with the medium. The inextricable and historical association of the medium with the message is perpetuated in the requirement that the message be tangible.

This overlooks (or ignores) the reality of information in the digital paradigm. This is what I have said elsewhere ( see Collisions in the Digital Paradigm: Law and Rulemaking in the Internet Age) on the topic:

Electronic data is quite different to its pre-digital counterpart.  Some of those differences may be helpful to users of information.  Electronic information may be easily copied and searched but it must be remembered that electronic documents also pose some challenges.  Electronic data is dynamic and volatile.  It is often difficult to ensure that it has been captured and retained in such a way as to ensure its integrity.  Unintentional modifications may be made simply by opening and reading data.  Although the information that appears on the screen may not have been altered, some of the vital metadata which traces the history of the file – and which can often be incredibly helpful in determining its provenance and may be of assistance in determining a chronology of the events, and when a party knew what they knew, – may have been changed.  To understand the difficulty that the digital paradigm poses for our conception of data it is necessary to consider the technological implications of storing information in the digital space.  It is factually and paradigmatically far removed from information recorded on a medium such as paper.

If we consider data as information written on a piece of paper it is quite easy for a reader to obtain access to that information long after it was created.  The only thing necessary is good eyesight and an understanding of the language in which the document is written.  It is “information” in that it is comprehensible. It is the content that informs.  Electronic data in and of itself does not do that.  It is incoherent and incomprehensible, scattered across the sectors of the electronic medium upon which it is contained.  In that state it is not information in that it does not and cannot inform.

Data in electronic format, as distinct from writing on paper, is dependent upon hardware and software.  The data contained on a medium such as a hard drive requires an interpreter to render it into human readable format.  The interpreter is a combination of hardware and software.  Unlike the paper document the reader cannot create or manipulate electronic data into readable form without the proper equipment in the form of computers.

There is a danger in thinking of electronic data as an object “somewhere there” on a computer in the same way as a hard copy book is in the library.  Because of the way in which electronic storage media are constructed it is almost impossible for a complete file of electronic information to be stored in consecutive sectors of the medium.  Data on an electronic medium lacks the linear contiguity of a page of text or a celluloid film. An electronic file is better understood as a process by which otherwise unintelligible pieces of data are distributed over a storage medium, assembled, processed and rendered legible for a human reader or user.  In this respect “the information” or “file” as a single entity is in fact nowhere.  It does not exist independently from the process that recreates it every time a user opens it on a screen.

Computers are useless unless the associated software is loaded onto the hardware.  Both hardware and software produce additional evidence that includes, but is not limited to, information such as metadata and computer logs that may be relevant to any given file or document in electronic format.

This involvement of technology makes electronic information paradigmatically different from traditional information where the message and the medium are one.  It is this mediation of a set of technologies that enables data in electronic format – at is simplest, positive and negative electromagnetic impulses recorded on a medium – to be recorded into human readable form.  This gives rise to other differentiation issues such as whether or not there is a definitive representation of a particular source digital object.  Much will depend, for example, upon the word processing programme or internet browser used.

The necessity of this form of mediation for information acquisition in communication explains the apparent fascination that people have with devices such as Smartphone’s and tablets.  These devices are necessary to “decode” information and allow for its communication and comprehension.  Thus, the subtext to the description of electronically stored footage which seems to suggest a coherence of data similar to that contained on a piece of paper cannot be sustained.

So why not forget about tangibility and this medium focussed approach to information. Interestingly enough a solution is proposed in the definition in the Bill which contains the following parenthetical remark

(but see Part 4 of the Contract and Commercial Law Act 2017, which provides for meeting written requirements by electronic means)

So what does that say. Simply this

A legal requirement that information be in writing is met by information that is in electronic form if the information is readily accessible so as to be usable for subsequent reference.

Not quite a solution, but getting there. It focusses upon two important concepts that underly any information in writing. First – it must be accessible. Second, there is the concept of utility.

So perhaps a 21st Century medium neutral definition of writing should go something like this

Writing means representing or reproducing words, figures, or symbols in a visible form and in such a format as to be readily accessible and usable for subsequent reference.

There is no need for tangibility. We have moved on from the inextricable message\medium association. But many lawyers and lawmakers seem to be unaware of the unique and paradigmatically different qualities surrounding information in the Digital Paradigm.

 

 

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