Online Trust, Facts, and the Best Evidence Rule

When you’re a lawyer and you write about truth, you’re basically asking to be insulted because….you know….you’re a lawyer.  It’s true, some of my fellow legal professionals have occasionally had a less than intimate connection with the truth, but, in general, even the best lawyers squint their eyes and look wary when someone talks about the legal system being about finding “truth.”  It’s not cynicism, it’s because lawyers are almost never dealing with questions as fine as “What is the Truth?”  That’s a question for the philosophers — what we’re after is proof, which is something very different.

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Honestly, it really shouldn’t.

What’s the important difference between truth and proof?  Hopefully, in your real life, nothing, and proof you assemble will point in the right direction.  But sometimes proof provides only glimpses of truth, which is why it’s so important to find the right kind — reliable, non-manipulated, consistent evidence that will provide enough confidence in its trustworthiness that you can reach a binding conclusion based upon it.  That’s why lawyers long ago created the concept of the Best Evidence Rule.

What Evidence is Best?

The Rule (which second year law students will rush to tell you) is pretty straightforward: you can’t introduce a copy as evidence when the original exists.  It applies across the board, covering papers, recordings, videos, faxes, etc.  That doesn’t mean that copies are never admissible in court — for instance, it’s not necessary to bring an actual, wet-ink copy of a contract into the court if both parties agree that the electronic version they have is authentic.  Similarly, it’s not necessary to lug your desktop in front of the judge to show the contents of an email.

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There’s a good chance the judge wouldn’t know what to do anyway.

But there’s an important basis for the rule, even if its exceptions sometimes swallow it up.  The idea is that proof (there’s that word again) dilutes the further it moves from the source.  Like losing the words in a game of telephone, copies become corrupted, inferences carry over, and successor documents may have been altered. Much of this comes from the old common law principles about reliability of witnesses and the exaltation of paper, but it still applies today, particularly when you’re attempting to evaluate the validity of information online.

No one disputes that there’s a crisis of trust online, driven by the near-constant creation of new content, unshepherded and unevaluated by authorities with credibility or power.  It’s the blessing and the risk of the Internet that anyone can say virtually anything at any time.  As a consequence, meaningful proof, facts, or truth can be buried under a mountain of meaningless drivel and noise.  Consider the fact that, by 2013, we were adding  2.5 quintillion bytes of data to the internet every day — and that’s before your Instagram story even really got going.

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“Here’s me looking at my watch. #Blessed.”

But in all of that data, how much can we really verify?  Even if we had the inclination to do so — and, let’s be honest, the entire Internet is built upon the highly accurate presumption that we don’t — there’s simply not enough time to wade through the endless torrent of information, true and false, we encounter every day.  Think of it this way — when you search for Ward PLLC on Google, there are about eleven meaningful results across the first ten results pages, each of which contains 10 results.  So roughly 11% of the results are accurate or useful.  And, given that no one really goes beyond the first page, and the very first result is us, no problem right?

Maybe.  But consider the fact that the search returned 1.8 million pages in total, which means that there are eighteen million webpages out there that Google’s algorithm selected.  Now consider that AI systems being deployed now have the ability to replicate the entire content of the Web as it exists overnight.  Connected devices, too, will provide feedback and content that plugs into the endless supply of new data.  In other words, the data content we create every day isn’t a torrent, it’s a trickle, at least compared to the world of data creation we’re watching be born.

You might respond by saying “Yeah, but it’s not like your page will be lost in the midst of all of that data, Google will still return your website as number 1.”  Will it?  Machine learning-based marketing tools will instantly be better at recognizing SEO patterns and methods for gaming search algorithms that, by their nature, have to be reactive.  There’s absolutely no reason to believe that gaming the system won’t become the primary goal of ML-based systems because that’s exactly what the human-based SEO industry does now.

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By 2030, one third of all CMOs will be Cybermen.

Finding Trust when Finding Answers

How, then, do we sift through the meaningless in search of the meaningful?  How do we identify the trusted sources and use them?  The answer lies in a combination of human nature and the good old Best Evidence Rule: go to the source.  When you need to identify factual information, at least about a given company or its products, its services, or its activities, your best bet is almost always to go to the company itself first and look through their own answers.  Think of it as a kind of blue checkmark for information: it’s verified because it comes from the entity that originated it.

Couldn’t they lie, you ask?  Isn’t it fair to assume that they could present a false picture of themselves in order to entice you into buying their wares?  Well, yes, of course they could.  But they have very strong incentives not to. Companies that lie to their potential customers have a funny way of losing those same customers.  No one likes to drive out to Pete’s Widgets to buy the newest widget advertised as “in stores now” on the website only to find that Pete is selling knockoff “wodgets” that don’t work, and then find that their kids are furious that the wodgets don’t work and now everyone’s mad at you for ruining Christmas, Jay.

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I mean…”Joe.”  Not Jay.

More than this, businesses have incentives to provide you with honest answers because a) they want you to buy their products, b) they want you to trust them, and c) if they lie, they’ll be open to liability for false advertising, unfair competition, or violations of federal law.  Nothing encourages good behavior like profit incentives and the threat of an FTC enforcement action.

This is why sourcing your information online, regardless of the topic, is like the Best Evidence Rule — it’s about relying on the self-interest of someone else to ensure that you’re getting honest answers.  Plus, the company has a different kind of incentive than any other entity providing links, data, reviews, or putatively accurate information.  Google has incentives to provide useful information, sure, but it only shows you what the algorithm says has the highest relevance.  And online, it’s accuracy that matters most.  Ever gone to meet someone at a Starbucks only to find that you’ve gone to the wrong one?  Relevance only gets you so far without accuracy.

This isn’t to say that we’re embracing a “believe whatever a company tells you” ethos: far from it.  What we’re saying is that as long as you can identify a fact a company needs and wants you to know in order to make you its customer, you’re better served by going to the company itself to find the information, because their business depends on the accuracy of the facts they put out to the world.  Does it solve the trust crisis?  No.  But it moves us a lot closer to a place where we can trust some of what we see some of the time.  And, given how hard it is to trust even our eyes online, that’s at least a good start.

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