Blockchain Records Affidavit
A blockchain records affidavit is used under state or Federal Rules of Evidence, Article VIII, Hearsay Rule 803(6).
An affidavit, with a blockchain record attached, sworn to by the digital record keeping custodian of a business, may be accepted as evidence in a court case. It is similar to a business records affidavit.
Blockchain digital records are new technology. Laws and evidence rules need to be updated to readily accept them as admissible.
Vermont Rule of Evidence 902, Blockchain Records
Vermont has passed a state law, 12 V.S.A. § 1913 Blockchain enabling, under Title 12, Court Procedure, that allows blockchain digital records as evidence, if a notarized affidavit is attached. The law states:
A digital record electronically registered in a blockchain shall be self-authenticating pursuant to Vermont Rule of Evidence 902, if it is accompanied by a written declaration of a qualified person, made under oath, stating the qualification of the person to make the certification and:
(A) the date and time the record entered the blockchain;
(B) the date and time the record was received from the blockchain;
(C) that the record was maintained in the blockchain as a regular conducted activity; and
(D) that the record was made by the regularly conducted activity as a regular practice
“Blockchain” means a cryptographically secured, chronological, and decentralized consensus ledger or consensus database maintained via Internet, peer-to-peer network, or other interaction.
“Blockchain technology” means computer software or hardware or collections of computer software or hardware, or both, that utilize or enable a blockchain.
Arizona Electronic Records
ARS 44-7061 B. A record or contract that is secured through blockchain technology is considered to be in an electronic form and to be an electronic record.
“Blockchain technology” means distributed ledger technology that uses a distributed, decentralized, shared and replicated ledger, which may be public or private, permissioned or permissionless, or driven by tokenized crypto economics or tokenless. The data on the ledger is protected with cryptography, is immutable and auditable and provides an uncensored truth.
Tennessee Electronic Records
TCA 47-10-202. (b) (same as Arizona) A record or contract that is secured through blockchain technology is considered to be in an electronic form and to be an electronic record.
TCA 47-10-201. (1) “Blockchain technology” (same as Arizona) means distributed ledger technology that uses a distributed, decentralized, shared, and replicated ledger, which may be public or private, permissioned or permissionless, or driven by tokenized crypto economics or tokenless. The data on the ledger is protected with cryptography, is immutable and auditable, and provides an uncensored truth.
Ohio Uniform Commercial Code (UCC), Uniform Electronic Transactions Act
Ohio ORC 1306.01 Definitions (G) “Electronic record” means a record created, generated, sent, communicated, received, or stored by electronic means. A record or contract that is secured through blockchain technology is considered to be in an electronic form and to be an electronic record.
Delaware General Corporation Law, Electronic Records
Delaware Code, Title 8 Chapter 1 Subchapter 7 § 224 Form of records. When electronic records are kept, a clearly legible paper form prepared from or by means of the information storage device, method, or 1 or more electronic networks or databases (including 1 or more distributed electronic networks or databases) shall be valid and admissible in evidence, and accepted for all other purposes, to the same extent as an original paper record of the same information would have been, provided the paper form accurately portrays the record.
Other states may follow with similar laws or rules of evidence to allow the use of record-keeping using blockchain distributed ledger technology (DLT).
Federal Rule of Evidence (FRE) 803(6), Business Records Exception to the Rule Against Hearsay
There is a potential hearsay barrier to the introduction of any evidence from a blockchain distributed ledger. A blockchain receipt will generally be admissible as a business records exception if it meets the requirements of Federal Rule of Evidence 803(6).
Federal Rule of Evidence (FRE) 902, Evidence That Is Self-Authenticating
Amendments 13 and 14 to FRE 902, which took effect in December 2017, permit self-authentication of much digital evidence.
(11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court.
(13) Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).
(14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902 (11).
The Committee Notes for FRE 902 Amendment 14 state:
“Today, data copied from electronic devices, storage media, and electronic files are ordinarily authenticated by “hash value“. A hash value is a number that is often represented as a sequence of characters and is produced by an algorithm based upon the digital contents of a drive, medium, or file. If the hash values for the original and copy are different, then the copy is not identical to the original. If the hash values for the original and copy are the same, it is highly improbable that the original and copy are not identical. Thus, identical hash values for the original and copy reliably attest to the fact that they are exact duplicates.
This amendment allows self-authentication by a certification of a qualified person that she checked the hash value of the proffered item and that it was identical to the original. The rule is flexible enough to allow certifications through processes other than comparison of the hash value, including by other reliable means of identification provided by future technology.”
China Internet Courts
In June 2018, the Hangzhou Internet Court ruled that documents authenticated with blockchain can be admitted as evidence in a copyright infringement case, stating: “the usage of a third-party blockchain platform that is reliable without conflict of interests provides the legal ground for proving the intellectual infringement”.
In September 2018, the China Supreme People’s Court released rules stating that their internet courts shall recognize digital data as evidence if they are verified by methods including digital signatures, timestamps, hash value verification, blockchains, other tamper-proof verification methods.
China set up its first internet court in the e-commerce hub of Hangzhou, home to Alibaba, in August 2017, with more internet courts opening in Beijing and Guangzhou in September 2018. Litigants are required to attend the hearings via online video streaming. A voice recognition system will replace human clerks to maintain court records. The service of legal documents, presentation of evidence, and the actual trial itself are all done online.
Sample Form, Blockchain Records Affidavit
For an example affidavit, see the sample form at Blockchain Records Affidavit.
[Disclaimer: This information is not legal advice. Contact an attorney for legal advice.]