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Blockchain and Access to Justice: A Cursory Glance


Blockchain

Blockchain is a coded distributed ledger technology based on 3 key principles; security, immutability and transparency. The UK Chief Scientific advisor defined blockchain as: “a type of database that takes a number of records and puts them in a block…. Each block is then ‘chained’ to the next block, using a cryptographic signature. This allows block chains to … be shared and corroborated by anyone with the appropriate permissions”.[1]


The basis of blockchain lies upon cryptography and computing. We will use the most known version of blockchain, the ‘Bitcoin’ crypto currency, to explain how blockchain works. Much like a ledger, a block on a blockchain is capable of holding information. ‘Blocks’ are created when individuals wish to put information on the blockchain (with bitcoin this would take the form of transactions). These blocks are ratified in the blockchain when participants in the network use their computing power to solve cryptographic puzzles (such as Proof of Work) that can only be solved with brute-force computing. This is called mining. Once the miner finds the unique answer (a string of characters called a ‘Hash’), they are awarded Bitcoin for their contribution to the network.[2]


Upon solving said puzzles, the block gains the Hash number which serves as the unique identifier of that block information. The rewards miners receive for contributing to the network serve to act as an incentive for miners to use their computing power to validate information exchange on the blockchain, serving essentially as digital notaries.[3] Once a block is validated it is stored by all the participant miners in a network. This means that there is no single vulnerability for individuals seeking to maliciously alter the information stored on the blockchain to the target.[4] If the information is altered, this has to be validated by the majority of the network, which explains why blockchain is considered to be ‘immutable’. On top of this, it takes such an immense amount of computing power to create blocks that a malicious actor would need to have access to a large volume of computing power to even try and change the network. With blocks being created every 10 minutes, the actor would not only need to alter their targeted block but each and every block after that. Very few individuals or institutions have that kind of computing power capability (for example, a quantum computer would be able to alter a blockchain, but quantum computing is still in its infancy).


Blockchains may be public, granting anyone access and allowing participation by any parties. Blockchains may also be private. This means that only those with granted access may participate within the network and look at the ledger. This difference may also be referred to as ‘unpermissioned’ or ‘permissioned’ ledgers.[5] Private (permissioned) blockchain networks may be suitable for some government departments as the process of validation creates digital signatures meaning verified documents can be shared across departments securely.[6] However, it is important to note that as there is a limited consensus process carried out by those actors granted permission, private networks may be less secure than public networks as malicious actors will find it easier to target the smaller number of trusted actors involved.


Implications of Blockchain

There are far-reaching implications of Blockchain in the commercial and legal sphere. For example, in Estonia, the national health data registry has been entered into blockchain. This allows citizens to access their health data securely online via their ID Card (which has a chip which contains public key encryption). This E-Health system also has the added benefit of providing system access logs, giving the users some form of data protection and accountability.[7]


Blockchain can also be used by the police. Public encrypted networks or private government run networks may be used to track evidence handling. As blockchain allows for the time stamping of data on the blockchain and contains all the information of the previous hash, there can be supply chain accountability. In the U.K., there have been a slew of cases which have fallen apart due to evidence being lost or mishandled.[8] Additionally, it has been noted that witnesses and defendants have been let down by the justice system due to wrong CPS charging decisions in cases where evidence had been lost.[9] These problems are the cause of massive inefficiencies in the criminal justice system and may be considered a waste of government funding for the police and that of legal aid. As a result, the Police Foundation has recognised the possible use of blockchain in the current system in its report ‘Reforming Justice in the Digital Age’.[10] By implementing a secure, immutable, distributed ledger, the Police and CPS will be able to reduce such inefficiencies by having better coordination and making the correct charging decisions. Having a notarized case management system will allow for greater accountability and create better communication between the CPS and the Police.


Smart contracts

Smart contracts are additional pieces of code that can work on top of a blockchain. Rather than containing terms in legal language, they contain executable algorithms. On this point, we should think along the lines of ‘if this, then that’. For example, in the case of crowdfunding, a smart contract could be programmed to release the funds to be used once the target goal is reached. Such smart contracts enable the execution of essentially ‘trustless’ transactions as they are automatically executed by a distributed ledger system.[11]


Implications of smart contracts

As it stands, there are two important ways in which the use of smart contracts may help improve access to justice in the U.K. Principally, smart contracts make it easier for individuals to enter into binding, immutable contracts without requiring the help of lawyers to draft terms. The importance of smart contracts may be shown as firms such as Linklaters, Ashurst, and Clyde&Co have joined ‘The Accord Project’, which is a smart contract consortium.[12] Alejandro Alvarez has stated that “greater access to legal documents is an important component to achieving greater access to justice”.[13] This technology has a few key implications. Firstly, by making contracting more streamlined, the perceived barrier to contracting as being ‘difficult’ is reduced as smart contracts can be entered into almost instantaneously. Additionally, the financial barriers to contracting are largely reduced as there are no billable hours to be paid by either party. This is important as it means that people with a lower income and small businesses are able to use the legal system and enjoy its benefits without the high level of sunk costs involved.


As there is no complex legal jargon involved, individuals may contract on terms they understand. However, in terms of more complex contracts, these terms will need to be supplemented by written documents as the courts require certain terms to be ‘written’ and the words must be reproduced in a visible form.[14] While this may provide some complications, Linklaters has suggested in its white paper on smart contracts and distributed ledgers that there may be two models, the external model and internal model, which may provide the solution to this.[15]


Furthermore, smart contracts can act as a means of legal aid of ‘crowdfunding’ legal services. By way of smart contracts, intermediaries are cut out and the process is made more efficient, in terms of both money and time. The U.K government has also expressed its interest in the use of smart contracts in the provision of public services and they have carried out a trial for the distribution of benefits yielding “encouraging results”.[16]


Blockchain and smart contracts are technologies that have vast implications and their go far beyond the applications covered in this article. It is highly likely that in the coming years, we will begin to see governments, companies, and individuals find novel uses for these technologies as the code involved may be altered to suit various uses - some of which we cannot even anticipate.



Maissa Natcha Dronkers

Human Rights Section Feature Writer

6th December, 2018



 

[1] Government Office for Science, Distributed Ledger Technology: Beyond the Blockchain. (2017) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/492972/gs-16-1-distributed-ledger-technology.pdf> Accessed 25 November 2018, 17


[2] W Al-Saqaf and N Seidler ‘Blockchain technology for social impact: opportunities and challenges ahead’ (2017) Journal of Cyber Policy <https://www.researchgate.net/publication/321012025_Blockchain_technology_for_social_impact_opportunities_and_challenges_ahead> Accessed 25 November 2018; S Nakamoto ‘Bitcoin: A Peer-to-Peer Electronic Cash System’ (White Paper, 2008) <https://bitcoin.org/bitcoin.pdf> Accessed 24 November 2018; R Wilcox, ‘Blockchain: unlocking the potential’ (Public Finance, 3 April 2018) <https://www.publicfinance.co.uk/feature/2018/04/blockchain-unlocking-potential> accessed 25 November 2018


[3] Ibid


[4] Ibid (Nakamoto)


[5] n1 (Government Office for Science) 17


[6] Ibid


[7] n2 (Wilcox)


[8] The Secret Barrister: Stories of the Law and How It's Broken (2018) Croydon: Pan Macmillan.


[9] Ibid


[10] L Crowhurst ‘Reforming justice for the digital age’ (Police Foundation Report, 2017 <http://www.police-foundation.org.uk/2017/wp-content/uploads/2017/08/pf_cgi_digital_justice.pdf> Accessed 26 November 2018


[11] n1 (Government Office for Science) 18


[12] Artificial Lawyer ‘ Ashurst Joins Smart Contract Consortium, the Accord Project’ (Artificial Lawyer, 28 March 2018)


[13] Financial Times ‘Digital legal papers will give greater access to justice’ <https://www.ft.com/content/3dca8588-d061-11e8-9a3c-5d5eac8f1ab4> Accessed 25 November 2018


[14] Interpretation Act 1978, Schedule 1 (Definitions)


[15] Linklaters ‘Smart Contracts and Distributed Ledger – A Legal Perspective’ (White paper, 2017) 14 <https://www.linklaters.com/en/about-us/news-and-deals/news/2017/smart-contracts-and-distributed-ledger--a-legal-perspective> Accessed 27 November 2018


[16] n2 (Wilcox)

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