Photographs may soon need a birth certificate

A practice note now in draft before a judicial procedure committee would set out that a photograph offered in evidence should be accompanied by a continuous provenance record, running from the sensor that captured it to the file placed before the court. Where no such record exists, the note would advise that the image be admitted and accorded no weight — a disposal the drafters describe as more courteous than exclusion and, in effect, identical to it.

The note would not be concerned with forgeries. Courts have dealt with fabricated evidence for as long as there has been evidence, and the procedures for it are old and unglamorous. It would be concerned with the inverse: a genuine photograph of a genuine event, taken on a handset old enough to lack a signing chip, becoming legally invisible while nobody disputes that the event occurred.

Under the scheme an image would arrive with a credential — a signed statement of the device that captured it, the time, and every edit applied since, each edit signed in turn. Cropping would be recorded. Brightening would be recorded. The court would read the record before it looked at the picture, which one submission describes as the correct order and another as the end of something.

“The court would not be finding that the photograph is false,” a member of the drafting committee would be expected to say. “It would be finding that it cannot say the photograph is true. In a courtroom those two findings have always had the same consequences, and we would rather write that down than continue to pretend otherwise.”

The burden would fall where burdens fall. A witness who filmed an incident on a five-year-old phone would carry a record of nothing. The company whose fleet cameras sign every frame at capture would arrive with an unbroken chain and a technician to explain it. The note would acknowledge this under the heading Practical consequences, in four sentences, and would propose a review in two years.

The most careful passage would concern what the submissions call the liar's dividend. Once a court may properly ask whether an image was generated, every party acquires an incentive to ask it, including the parties who know the answer. Authentic footage would be met with a shrug and a technical objection. The practice note would be an attempt to put a floor under that, and its authors would concede, in a footnote, that a floor is not a repair.

Nothing here is in force. A practice note is guidance rather than law, and this one has not left the committee. But the shift it responds to has already happened in the part of the process that is never written down: the moment at which a person looking at a photograph stops assuming, and starts asking where it came from.