ADVERTISEMENT
Advertise with BNC

Seeking justice: No ID required

Most justice systems today require identification as a precondition to participation. In 10 years of legal practice, I’ve never had a client ask why ID is required. We simply accept, without question, that in order to get justice we must disclose identity. But what if that’s not true? Can we uncouple identity and justice?

Most justice systems today require identification as a precondition to participation. In 10 years of legal practice, I’ve never had a client ask why ID is required. We simply accept, without question, that in order to get justice we must disclose identity. But what if that’s not true? Can we uncouple identity and justice?

Bitcoin, open blockchains, and smart contracts ignore national identity and jurisdiction by default. Yet both of these are standard requirements to participate in traditional court processes. As I see it, this leaves us with three broad options:

  1. Ignore the problem, leaving a legal hot-potato scenario (see theDAO);
  2. Implement identity and jurisdiction layers on top of these technologies;
  3. Invent new online dispute resolution (ODR) layers that can provide access to efficient, effective dispute resolution without requiring ID by default. I’m spending my time working on the third option — Seeking Justice: No ID Required.

Trust Armor

Our interactions with one another are based upon trust. Trust in the societies in which we operate. Trust that others will follow the law, that they’ll behave predictably, that they’ll honor their word  —  or not. Trust that others will work to correct wrongs and generally “do the right thing”  —  or not. And, if we’re lucky, we trust that societal mechanisms, like national courts, will provide accountability and justice if our trust was misplaced.

These societal mechanisms serve as trust armor, reducing the risk of trusting others by providing a shield of protection. Although we may not consciously think about the underlying systems that support trust, they do factor into our decision-making process. If the armor is weak, we’re less likely to trust. If we have multiple layers of armor, it’s much safer to trust.

For many of us, our trust armor consists of a combination of party knowledge and recourse options. We learn about the other party, their reputation, how we’re connected, and try to assess how likely it is that our trust is misplaced. We evaluate our position in the deal  —  do we have more power, less power, or power roughly equal to the other party? Part of that analysis includes evaluating our BATNA, or best alternative to a negotiated agreement, if the other side wrongs us. Often our BATNA is seeking justice in a traditional court.

Traditional Justice Requires Identity

Traditional court systems, at least in the USA, are technically available to everyone. However, by design, traditional court systems require identity. This is due, in part, to the requirement that a court must have the authority over a person to bind them to a judgment, a concept called personal jurisdiction. By using traditional court systems as trust armor, we’ve imported an identity requirement into our transactions. The phrase “I’ll see you in court!” has little meaning if you don’t know who “you” is, if you can’t really make good on the threat because you don’t know the identity of the other party. Requiring national ID is an artifact of our choice of trust armor, not an inherent part of trust. If we continue to use traditional justice systems as our BATNA, we must continue to require identity. However, if we rely on other trust armor, identity becomes optional.

Justice Isn’t Really Blind

The real danger in our continued reliance on identity to facilitate trust is that it leads to injustice. The element of blind justice, often depicted as blindfolded Lady Justice, is quite effectively undermined by the requirement of identification. A system of justice that requires ID is a system that disenfranchises those without ID and, at the same time, treats the rich and powerful exceptionally due to their “good names” or “good addresses.” Imagine a system in which justice was truly blind, in which identity was unknown and irrelevant. It is possible.

Seeking Justice Elsewhere

Obviously, traditional court systems are unlikely to uncouple identity and access. There are strong incentives to maintain the status quo and few incentives to change (despite the injustice). They almost certainly will not uncouple identity and access without an effective, proven alternative to model. Fortunately, we don’t have to wait for national systems to evolve; we can experiment with new private resolution models.

Trusting in Private Alternative Dispute Resolution

Private alternative dispute resolution (ADR) systems  —  sometimes with the force of international law, sometimes without  —  have proved to deliver extremely effective solutions for commercial transactions, particularly when jurisdiction is murky. Traditional ADR processes include mediation, collaborative law, and arbitration. Importantly, these systems are usually not required to conform to traditional court rules and processes. Although most established ADR models require ID, the ID requirement is simply a mechanism for rights enforcement. We are free to explore and build identity-optional solutions.

Mediation DAO, global crowd juries, and prediction markets could all be used as identity-optional resolution systems. Would a mediation DAO need to know the national identity of parties? Probably not. If the goal is to guide parties to agreement, who the parties are is irrelevant. Identity isn’t necessary for crowd-juries to render decisions either. Pseudonymous parties can easily present evidence and argue the merits of their cases without revealing identity. Bonds, insurance, and collateral could supplement identity-optional trust options as well. For example, while insurance policy holders may need to provide identity to their insurance company, those receiving proceeds from policies do not need to know the identity of the policyholder.

Trusting in Public Forums

We’re already relying on identity-optional trust models. Today, people tweet at airlines when their flights are delayed, hoping to force the company to take action to help them. Celebrities and political candidates are carefully managing their social media feeds, responding to tweets from people they don’t know, who may not even be real people. The fear of Twitter backlash is real and powerful, and it has created a system of public justice in which one party can remain pseudonymous.

What’s interesting about these specific instances is that they illustrate asymmetric identity, where one party is known and the other is not. The merits of this system can be debated elsewhere; the purpose here is to illustrate that pseudonymous or anonymous justice isn’t as foreign a concept as it may seem. The point is that it can be done and many people believe it is a reasonably effective, certainly efficient, way to obtain justice in some situations.

Trusting in Technology

Bitcoin is a platform for trust and as such it can function as a layer of trust armor. For example, OpenBazaar is experimenting with an identity-optional dispute resolution option using bitcoin’s multisignature feature. Buyers and sellers participate in a multisignature address with a moderator, where two of the parties are required to approve any transaction. The buyers and sellers do not have to reveal their national identities or jurisdictions, yet because the model locks funds in a way that no individual has control, the moderator can effectively mete out justice in case of a dispute.

This is just one example of the many ways this technology can be used to deliver alternative trust models. Bitcoin’s multisignature can be used in any transaction, for no extra cost and with nearly instantaneous setup. More complex smart contracts, with time limits and automatic refunds are also possible, expanding the range of options for layering trust.

Building Trust: a Layered Approach

In our globally connected, identity-optional world, we cannot rely on a single trust solution — like the ability to go to local court — as adequate risk protection. We must adopt a layered approach, just as we do in everyday life. This layered approach can include traditional courts and identity, but it doesn’t have to. We can create identity-optional layers, and we should do so.

We trust our instincts, we trust our friends, we trust online reviews (sometimes) to help us make decisions about trusting unknown companies and individuals. We rely on our past experiences to inform our future actions. We often rely on the court system to protect us if we find that our trust was misplaced. But in relying on traditional courts, we’ve made the incorrect assumption that identity is a requirement for justice. It’s not. In fact, often identity leads to unjust outcomes. We can do better. In many cases, we can replace ID with other forms of trust. We can build layered identity-optional solutions using ADR, technology, and public forums. We can provide better access to justice for all, no ID required.


Pamela Morgan
is an attorney, educator, and entrepreneur who has been working exclusively in the bitcoin and blockchain industry since early 2014. In addition to her law practice, Pamela is the CEO of Third Key Solutions LLC.


ADVERTISE WITH BRAVE NEW COIN

BNC AdvertisingPlanning your 2024 crypto-media spend? Brave New Coin’s combined website, podcast, newsletters and YouTube channel deliver over 500,000 brand impressions a month to engaged crypto fans worldwide.
Don’t miss out – Find out more today


ADVERTISEMENT
Advertise with BNC
ADVERTISEMENT
Advertise with BNC
BNC Newsletters: A weekly digest of the most important news and analysis.
ADVERTISEMENT
Advertise with BNC
Submit an event on bravenewcoin.com
Latest Insights More
ADVERTISEMENT
Advertise with BNC