Article based on a paper given at the Tokyo Institute of Technology, Graduate School of Decision Science and Technology, Ookayama-campus, Tokyo.Article by Stephen Mason published in Amicus Curiae - Journal of the Society for Advanced Legal Studies. The Journal is produced by the Society for Advanced Legal Studies at the Institute of Advanced Legal Studies, University of London

Mason, Stephen

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26Amicus Curiae   Issue 79   Autumn 2009When I write a haiku, I invariably, but not always,incorporate the three elements into the poem,as expressed by Kenneth Yasuda: “…. in haiku,the poet usually attempts to present a speaking object,around which and in which he has an experience”(Kenneth Yasuda, The Japanese Haiku (Tuttle, 1957,1991), 41). The three elements that comprise theproperties that constitute the experience are the “when”,“where” and “what.”I wanted to express the concept of “original” becauselawyers are used to dealing with an original document, oran authenticated copy of the original of a document, butare in difficulties when the concept of “original” proves tobe elusive in respect of a digital object, whatever form ittakes (for example, a photograph in the form of a TIFimage, a document published into PDF, or a database).Arguably, there is no concept of an “original” digital object,which means it is necessary to reconsider the conceptualframework, which many lawyers have failed to do thus far.I have argued that the nearest we can get to the concept ofan “original” digital object, is to recognize that it isnecessary to consider how authentic the digital object is,and this in turn can be reduced to the following:“(a) The content of the data that a party relies upon has notchanged from the moment it was created to the moment it issubmitted as evidence.(b) The data can be proven to be from the purported source.(c) The technical and organizational evidence demonstratesthe integrity of the data is trustworthy, and is thereforeconsidered to be reliable.” (Stephen Mason, general editor,Electronic Evidence: Disclosure, Discovery & Admissibility(LexisNexis Butterworths, 2007) 4.35).In the haiku I wrote for another text on electronicevidence (Stephen Mason, general editor, InternationalElectronic Evidence (British Institute of International andComparative Law, 2008), I wanted to illustrate thedifficulty in determining what an original might be bylooking at nature (unlike many Japanese haiku, I tend togive a title to a haiku, and in this case, I think it necessary):OriginalRain droplets land, merge,divide on petals of theSomei Yoshino.Water is an ideal mechanism to demonstrate thisconundrum (a problem wholly of human making, becausedocuments do not exist in nature), mainly because of thephysical properties of water: that is, water can exist,amongst other forms, as a mass (the ocean), or in the formof a droplet of rain falling from a cloud. In addition, watercan be subject to rapid changes in shape and size when itforms part of a waterfall, for instance. One moment it canbe a minute particle forming part of the mist, the next itcan fall and form part of a lake.This haiku might be considered a double haiku,consisting of two layers: the explicit description anddiscussion of a physical occurrence in nature with waterand the petals of cherry blossom, and a secondaryexamination of digital evidence. This is discussed in moredetail below.WHENThere are two layers to the “when” in this haiku. First,the physical world of humans and nature as the earthmoves out of winter, and the cycle of renewal begins again.We are in spring – there is no need to imply, suggest orassociate the reference to spring from the reference to thepetals on the cherry tree (which, in itself, is not a seasonalword, such as “haze” for instance, and the direct words“cherry blossom” are avoided as a categorical seasonalword), because in Japan the blossom is spring, because thecherry blossom flowers in spring; indeed, spring isincorporated into the cherry blossom. There is anotherreason for referring to the petal, and that is because thepetals are the first to appear on the tree, then the petalsElectronic evidence andthe meaning of “original”by Stephen MasonBelow is the text of part of a lecture I gave on April 17, 2009 under this title at theTokyo Institute of Technology, Graduate School of Decision Science andTechnology, Ookayama-campus, Tokyo, at the invitation of Professor HironaoKaneko.give way to the leaves, and the tree continues with its cycle.The petals (forming flowers) are, arguably, the first part ofthe cycle, and the most colourful and dramatic (it will bewrong to say the best part, because the tree in leafcontinues to live, and is not any worse for no longer havingblossom). Also, the reference to the spring is by means ofa living plant (not an abstract reference such as “spring”),and the associations with that plant, “petals”, which alsoemphasises the importance of the cherry blossom in thenational life of Japan. In this respect, my aim was to referto the physical emergence of the petal, giving the petal acentral role in the haiku by reference to the “when”, andwell as the surface upon which the droplets of rain mergeand split, linking what happens to the water to what can(and does) happen to digital objects. Finally, the petals,with such a short life, are a metaphor for the ephemeralnature of life – it is also a metaphor for the apparenttemporary existence of digital objects.A light fall of rain completes the picture of the physicalworld in spring and the celebration of the cherry blossom.The winter is over, but we are reminded that showers ofrain will persist until the summer takes hold. Naturally, raindescends in the summer, but it is not a surprise that itshould rain during the spring. From the point of view ofdescribing the physical world within the haiku, the aim isto bring these associations together, and for them to betaken up by the reader or listener in such a way that eachperson brings their own experience of spring to the haiku.The second layer is reference to the digital world.Although the digital world has been with us for a fewdecades now, nevertheless it is only recently that the effectof the digital world, with the networking capabilities of theworld wide web and the internet, has begun to affecteveryone, including the law. For many lawyers, digitalevidence can be considered similar to the revealing of theblossom in spring for the first time. The spring representsthe beginning of the cycle, and the digital world, whichexists in parallel with the physical world, together withevidence in digital format, is only in its infancy. The vastmajority of lawyers have failed to appreciate this, anduniversities and law schools, with rare exceptions, alsoignore the new reality – at the ultimate cost to the client.WHEREIt must be fair to say that the geographical location couldbe anywhere that the Somei Yoshino (Yoshino Cherry,prunus x yedoensis) grows naturally, other than in Japan. Butthe purpose of the reference to the Somei Yoshino is torefer to the ubiquitous nature of cherry blossom as asymbol of Japan. In addition, the very name of the treeindicates where it was first thought to be cultivated;moreover, it is also the most numerous cherry tree inJapan. Even if this does not convince the reader or listenerto accept that the “where” is in Japan, given the absence ofan identified location and the use of the Japanese word“Somei Yoshino”, it remains possible for the reader orlistener to make their personal association with a time andplace from their memory. In this respect, it might not benecessary for the “where” to be included in order toexperience a personal response to the haiku, although it isalso possible to experience the haiku in a secondary way,that is if the reader or listener has never been to Japan towitness the cherry blossom season, they may extend theirimagination to wonder how the cherry blossom might becelebrated in Japan.The ambiguity about “where” highlights the secondlayer, the reference to the digital world. A document mightbe created on board an aeroplane flying between twocontinents. During the flight, if permitted, the documentcould then be sent to any number of recipients in anynumber of countries. In this respect, the geographicallocation of a digital object may not matter – unless itbecomes highly relevant for the purpose of legalproceedings, and then the “where” and the time the digitaldocument was created may be of crucial importance. Theevidence of the text in the haiku tends to support theproposition that the “where” is Japan, which in itself ishardly geographically specific, although the evidence is notconclusive. Evidence in digital format has the samecharacteristics. A digital evidence specialist might be ableto offer an initial generalization as to the origin of a digitalobject, but they will not be certain until they conductfurther investigations and reach a reasoned conclusionbased on the evidence they have found.WHATThe reference to water, as already referred to, enablesthe reader or listener to reflect on their own experiences ofrain, but also to extend their experience by imagining howclose they can be to a petal upon which droplets of waterhave fallen. The aim is to bring the reader or listener intothe centre of the haiku, and make what happens in thehaiku an event that they have witnessed. This is just water:droplets of water, yet the reader or listener follows the tinybead of water on the petal, recognizes that a gentle breezecan make them move on the petal, some of them mightmerge together, then a sudden flip of wind causes thebigger drop to fall into the air and split into smallerdroplets as it hits a surface in its descent to earth, on toanother surface, or falls into a puddle. The insight is torecognize that water, which is fundamental to life, can beviewed in a way other than as an essential part of life, or anuisance when we are outside without a coat or umbrellawhen the rain falls unexpectedly. He we understand one ofthe properties of a liquid – water – in a different way.Water and one of its attributes reflects “originality” innature, and each reader or listener in turn experiences anoriginal response to the haiku that is unique to them, buteverybody that reads or listens to the haiku shares a similarexperience.The personal memory and experiences that lie beyondthe physical changes to the droplets of water accompany 27Amicus Curiae   Issue 79   Autumn 200928Amicus Curiae   Issue 79   Autumn 2009the secondary theme in the haiku, that of digital objects.Not everybody living on this earth has experienced thedigital world yet, but large numbers of people have someknowledge of the continually expanding digital world. Forinstance, a photograph taken with an analogue camera(that is, a camera with a film) can only remain a singleobject. It cannot be merged into other photographs, andsplit off again. It remains a physical object. A photographtaken with a digital camera differs markedly. The digitalobject, made up of a series of zeros and the number one,can be, and frequently is, manipulated and altered(especially in fashion magazines and for advertisements).Things can be taken out and put in to the image, in thesame way the water droplets can merge and form a single,larger droplet. The new, manipulated digital image can alsobe divided back into its constituent parts.Herein lies the interesting point: when three droplets ofwater fuse and then separate into three droplets, it is to bequestioned whether the three droplets that merge from thebigger droplet were the identical droplets that existedbefore they merged. In the same way, consider a digitalobject that has been manipulated and added to, and theprocess is then reversed. The original object that was usedremains (unless it was never saved independently, and thechanges made to the image were saved in the original file),but another object, with the identical image (or nearidentical, depending on the system software andapplication software) now exists. Conceptually, it ispossible to argue that the two digital images are different:one is the original, the other a copy of the original that wasmanipulated and returned to its original state (whatever“original” means). But both images are identical, apartfrom some additional meta data that might, or might notbe conclusive. However, it is apparent that the images, ifviewed together, are identical – will be identical, and theviewer will not be able to determine which is the original,and which image was manipulated. In this respect, thedigital images are no different from the droplets of rainthat fall, merge, then divide: there is no telling whether thedroplets that split are identical to the droplets that cametogether to form the larger droplet.CONCLUDING REMARKSMy ultimate aim in writing this haiku was to achievewhat Kenneth Yasuda described as to “… open up greaterunderstanding of what a man is, of what his relationship tothe world is” (for “man” please also read “woman”). Inthis respect, I hope the haiku, on the superficial level,heightens the physical experience of observing nature forthe reader or listener for the few seconds it takes to read.For the more perceptive reader or listener, I hope to haveextended their experience beyond the pleasures thatnature affords, into the realm of a world wholly created byhuman beings, offering a minuscule insight into the digitalworld. Stephen Mason© Stephen Mason, 2009

Electronic evidence and the meaning of "original"

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