[Discuss] need to set up fax-mail system

[kentborg at borg.org (Kent Borg)]

Shirley M?rquez D?lcey wrote:
> And an absurd one in an age when a lot of faxes are sent from 
> computers. A fax is actually easier to forge than a digital document 
> because of its relatively low resolution; it's trivial to pass off a 
> Photoshopped document as an original fax scan. Yet another case of the 
> law not keeping up with technical reality. 

I think we are missing a point here.  The fax itself is not thought by 
legal beagles to be some high-security, unforgeable thing.  Rather I 
think it is more a record of a communication. 

An oral contract is *just* a binding as a written version on parchment 
with tons of seals and signatures and witnesses.  The difference is the 
written contract has a better record (what are the particulars: how many 
widgets to be delivered on what date for what price with what penalty 
provisions for being late), and the parchment version is also harder to 
repudiate (yes, he signed it).  If the particulars of the oral contract 
are not in dispute, then the written version is no better.  Both might 
still go to court to argue about it. 

A legal fax I think is most valuable as a way to pin down the 
particulars.  I don't think the idea is to prevent forgery.  When you 
have an ongoing business relationship with someone the opportunities for 
forgery are slim--it breaks the continuity of the communications.  We 
don't tend to use faxes for one-off transactions with strangers, we meet 
in person and use cash when buying a soda-pop from a street vendor.  Or 
use well-known middlemen when spending a lot of money on, say, a house.

Long ago I once heard of an annoying HR person insisting that someone 
fax the original and not a copy.  The nerd who received the instruction 
thought it silly and I agreed at the time, but on reflection, I am 
sympathetic to the silly insistence.  I guess an aspect of that 
transaction is that the person sending it is attesting that "Yes, in 
lieu physically delivering this document to you, I attest that I have 
the original in my grubby little hand, I am putting it in the fax 
machine, the version you are about to get out the other side reflects 
the appearance of the original that I have in my hand.".  This 
attestation also flushes out little corner cases such as "Well, that 
document never had a physical existence before I sent it, I actually 
have several versions floating around on my disk, I can't be sure I 
e-mailed the one I intended to e-mail."  If using a fax instead of an 
e-mail saves me making a long drive there and back, during business 
hours...that seems a reasonable trade-off.  Yes, I might fax incorrect 
stuff, and I might put incorrect stuff on the form I hand over in 
person.  But I am probably trying to get my damn insurance reimbursement 
straightened out, I'm not masterminding a $194.19 heist.  Were I to fax 
for reimbursement for $194,000,000.00 to be payable to cash and sent to 
an address they don't have on record...neither the fax nor a physical 
form ("Blanks are over there on that wall.") is going to be good enough. 

Faxes pin down specifics.  One of the key features that the law has 
relied upon is that "to fax" has largely been a pretty clear verb with a 
pretty well understood meaning. 

The crude, stupid, lumbering, brain-dead properties of a fax are a 
feature in this case: People know what a fax is.  The more that we set 
up clever fax systems with fancy storage and pre/post editing 
features...the more the legal system will notice and start to worry over 
the value of faxes.  But a fax is a way of sending unambiguous 
information, being a stupid old technology helps keep it unambiguous.  
If the only people using faxes are bureaucrats, and if they refuse to 
buy fax systems with features that erode the clarity (stupidity) of 
faxes, faxes might stay with us for many years just to keep lawyers happy.

You might say e-mail is pretty unambiguous, and you have a point, 
providing the definition of e-mail stays stable (and maybe stupid and 
crude and brain-dead).  Start conversing with someone on Google Plus, 
however, and the fundamental properties start to get vague.  (Do young 
people even use e-mail other than for formal things that some 
institution insists upon?  Kinda like faxes??)  Heck even gmail doesn't 
always seem to have stable properties, what I think is an e-mail they 
think is part of a living conversation tread, and at least on my Android 
phone, what looks like a specific e-mail doesn't seem to have a 
write-once unchanging property.  I haven't pinned down what they are 
doing, but Google seems to be making it fancier.  Start adding features 
like that to a fancy fax system and lawyers would be well advised to 
stay away from it. 

The law hates chaos.  They won't be much comforted by "But Google 
shouldn't have done that, that's not what e-mail is!".

The law does a lot of silly things, but it isn't always a silly as a 
civilian might think at first glance.


-kb, the Kent who is a civilian.