by Célia Zolynski, Professor of Law at Université Paris 1 – Panthéon-Sorbonne
and Alexandre Veronese, Professor of Law at University of Brasília
Blockchain and security: an important debate for the legal community (especially from the civil law tradition)*
When we read and listen about the Blockchain technology, its main revolutionary character is the praised new manner by which the users would extract a new kind of trust from the operations endorsed. At some point, some writers even detail its technical design as being trustless. This technology – as some of their enthusiasts say – would therefore make it possible to replace, rather than displace, the trusted third party – an important technical feature that exists in most of the modern designs of private or public relationships – in various kinds of transactions and operations. The Blockchain enables this feature because it makes possible to guarantee the keeping of an unforgeable and updated register of digital records in real time. The technical functions of the Blockchain promise to secure many possible applications. An example is the use of the technology to ensure the integrity of a document or a digital archive over the time by anchoring it in the Blockchain. In addition, it is possible to create Blockchain systems to control or trace the circulation of digital archives and packages and even their usage. The Blockchain technology could therefore be able to guarantee the security of the storage files in the blocks using asymmetric encryption protocols in a peer-to-peer model. However, ten years after the launch of Bitcoin, in 2009, we are still largely in an exploratory phase of that technology. The blockchain and its applications remain immature: technically immature and, we should say, legally immature too. Several difficulties hinder the transition from the small-scale operations to bigger ones. One of the main concerns of the Blockchain technology is the safety of the designed applications. Such issue – the safety of the Blockchain – needs to be more debated than praised in order to avoid some misjudgments and overstatements. Just to begin, we are going to provide a provocative statement: Blockchain does not grant actual and complete security; from itself, the technology – and its prophets – indulge us with the illusion of safe and security. Why? We will divide the text in three parts, in order to pose problems to the Blockchain. First, we are going to describe that some technical issues that are entrenched in the design can be vulnerable to attacks and difficulties. Second, we are going to mention that – in legal terms – the Blockchain registers still will need a third party to be feasible as evidence in the courts. Lastly, we will remark that the so-called “smart contracts” are not contracts after all.
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