My dear friend Natasha, I am guilty of many things, including an assumption that people would know the intended meaning of all my words or read my mind, but I am not guilty of inconsistency :). I will try to explain by elaborating what already stated under each of your comments (hoping in the patience of the listserv colleagues if I go too long).
1. In many publications, you give more credibility to by-products of business activities than to something created ad hoc or deliberately for using as evidence. Many of these by-products are later used outside their initial scope.
Answer. Credibility is not a quality that makes of an entity a record. There are tons of non-credible records as well as biased and forged records. In fact we assess the trustworthiness of "records" in terms of their reliability, accuracy, and authenticity--the latter including identity and integrity. I remember Ken Thibodeau used to say that there are lots of bad records but not for this they are less records.
1a. However, backups are similar by-products.
Answer. Back-ups are the final product (rather than by-product) of the activity of supporting disaster recovery. Such activity creates several by-products, which are the records of the activity, such as policy and procedure for back-up, timeline, responsibility, disposition schedule, set-up of the backup, etc. The backup itself is one whole entity including a large variety of entities, and the material inside it CANNOT be regarded as individual entities created by either the backup activity or the activity that generated the original records. Only when the disaster occurs and the material in the backup is re-integrated in the system and some of individual entities contained in it are used in the usual and ordinary course of business and for the purpose of the activities that created the originals, then the entities in the backup become records of the creator.
1.b.They are often more trustworthy since they were not created with cheating in mind (court cases confirm that). For the god’s sake, backups are intended for resuming business! Organization’s survival depend on them being accurate and complete. And they are like the Vice-President of the USA – of little official importance while the President is alive and acting, but all important if something happens.
Answer. We are not questioning the trustworthiness of the backups as evidence. The question we are addressing is whether the backups are records, that is recorded information made or received in the course of the usual and ordinary course of activity and kept for further action or reference in relation to such activity. They are not records and do not contain records. In fact we have a rather old court case in British Columbia (it was the TN Railway) using the content of a backup as evidence but not under the business records exception to the hearsay rule, because the backup was not created for the purposes of the activity of which evidence was to be submitted and therefore was not a by-product of such activity, and the records of such activity had been destroyed according to a valid retention schedule. So the backup was admitted according to other evidentiary rules, among which oral testimony of the person who had made it as to the authenticity of its content.
1.c. What’s big theoretical difference between a backup and a copy of the record deposited at the notary’s office for safekeeping? Do you see archival safety fonds on microfilm as non-archives? And if we deposit backups with regulator (Bank of Russia’s current practice mandatory for troubled banks) or with the same notary, then what?
Answer. I think I already made it clear. It is all in the context. Safety is an administrative activity of the organization or of an individual like me, producing its own records. The backup is a product of such activity whose content is irrelevant to such activity, but could be used as evidence of anything it relates to in a court of law, not because it contains records but because it is relevant to the case, can be proven authentic, and an external entity can speak to it... just as one's blood found on the backup tape can be used as evidence of its use to kill the IT person. If the Bank of Russia requires that backups be considered records, in that case they are, but I do not see why the Bank would do so, as these would have to be individually authenticated just like other copies that are intended to be used as records are. I also remember the 1997 court case against NARA about the GS20, which in the final verdict established that records are only the instantiations of documents that are used as records by the creator. So, if I print out a digital message and I file it on paper and use it in my dealings only in that form, that is my record, not the digital version.
2. Clearly your interpretation of “records” is more narrow that that of ISO 15489/ISO 30300 of the US legislation. Your interpretation IMHO favors “official” records.
Answer: No. I use the same reasoning for my private messages to you. I backup everything, but my backup is not part of my activity of discussing with you the itinerary of my next visit to Russia (by the way, I am coming in December 2018 for sure and we need to organize a party), but the product of my activity of securing all the content of my hard drive.
3. Backups and not just digital “objects”, they are storage systems containing many things. They may contain digitally signed records that (at least in Russia) are seen as originals with full legal value. Please comment on that.
Answer. Backups contain lots of things indeed, and things that cannot be easily retrieved other than by reintegrating the whole in your system, so in fact they are an animal quite different from records. They may have legal value as evidence if relevant to a court case, but not on the grounds that they are record of the activity that produced the individual documents contained in it, thus, not on the basis of a record nature.
4. Backups are not proper tools for managing records, on that all of us agree. That doesn’t mean that they don’t contain records. You can dispose of backups more or less at will as long as the “official” originals exist; but if something happens to originals, you must ensure proper retention of records stored in backups. Colleagues have noted that that’s the practice of at least some Government agencies (life is richer than theory!).
Answer. I agree with above except for the fact that they contain records because they do not. Theory is only good if it supports practice and this theory does support practice. In fact it is going to be expressly incorporated in the forthcoming Government of Canada standard on electronic records as evidence.
5. When IT restores backups (happens often enough), the users may not be even notified. If backups are non-records, you probably have no e-records at all, since all of them at some point in time might have been restored from backups! :)
Answer. Not at all. When the backup is re-integrated in the system and its content is used again as records in the usual and ordinary course of business for reference or further action in the usual and ordinary course of business we no longer have a backup but the record system with all the records. It seems to me that theory and practice are completely consistent.
6. With my warmest feelings and deepest respect, Natasha
Likewise, Luciana
Dr. Luciana Duranti
Professor, Archival Studies
School of Library, Archival, and Information Studies
The University of British Columbia | The Irving K. Barber Learning Centre
470-1961 East Mall, Vancouver, BC V6T 1Z1
Phone 604 822 2587 | Fax 604 822 6006
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Director I Centre for the International Study of Contemporary Records and Archives
www.ciscra.org
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