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Managing records as evidence and information in China in the context of cloud-based services Pan, Weimei 2019

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 MANAGING RECORDS AS EVIDENCE AND INFORMATION IN CHINA IN THE CONTEXT OF CLOUD-BASED SERVICES   by  WEIMEI PAN  BMgt., Tianjin Normal University, 2010 M.M., Tianjin Normal University, 2012  A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF  DOCTOR OF PHILOSOPHY  in THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES (Library, Archival and Information Studies)  THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver)  March 2019  © Weimei Pan, 2019  ii The following individuals certify that they have read, and recommend to the Faculty of Graduate and Postdoctoral Studies for acceptance, the dissertation entitled: Managing Records as Evidence and Information in China in the Context of Cloud-based Services  submitted by Weimei Pan in partial fulfillment of the requirements for the degree of Doctor of Philosophy  in Library, Archival and Information Studies  Examining Committee: Dr. Luciana Duranti  Supervisor  Dr. Luanne Freund  Supervisory Committee Member  Dr. Hasan Cavusoglu  University Examiner Dr. Carson Chia-Siang Woo University Examiner  Additional Supervisory Committee Members: Dr. Giovanni Michetti  Supervisory Committee Member Dr. Sherry L. Xie Supervisory Committee Member  iii Abstract  Placed against the backdrop of the increasing use of cloud-based services, this study aims to explore the management of electronic records as evidence and information in Chinese enterprises to support them in fulfilling regulatory and legal requirements as well as satisfying business needs.  A qualitative case study method was adopted to achieve the research purpose. Two Chinese enterprises—one Sino-foreign joint venture and one state-owned enterprise—were studied through interviews and document analysis.  The findings show that, in the two Chinese enterprises studied, the impact of cloud-based service on records management practice is very limited. As to the management of electronic records as evidence, due to various reasons, these two enterprises are prompted to either employ a trusted third party or convert them to paper format for preserving and demonstrating their evidentiary capacity. Despite many benefits offered by these two methods, the examination of their application in the two enterprises identifies some issues, for instance, the lack of procedures to verify that the authenticity of the data in the cloud is not compromised, the lack of archival methods for the management of the data deposited with the trusted third party, and the way the paper versions of the records is managed does not account for their “digital” past, all of which may affect the ability of the records in question to adequately fulfill their intended purpose.  As it regards the management of records as information, both cases provided positive evidence of increasing efforts to exploit the informational content of records for daily  iv operation and strategic planning. Moreover, for the state-owned enterprise, its records management work is largely, if not exclusively, focused on the informational value of records.  This study suggests that there is some incoherence in the records management systems within the two enterprises, which is manifested in two aspects: the design of different records management programs to manage the evidentiary capacity and the informational value of records, and the absence of clear principles informing the management of records.    v Lay Summary  This study explores how two Chinese companies manage their electronic records to prove their business activities to the government and the courts as well as support daily operation and competitive advantage. Using two case studies – a Sino-foreign joint venture and a state-owned enterprise, it was found that, due to juridical and administrative reasons, Chinese enterprises often convert electronic records into paper format or deposit them with a third party to ensure their ability to serve as evidence. Yet, examination of these methods shows that they may not be able to do the job successfully. Additionally, both cases provided positive evidence of increasing efforts to exploit the informational content of electronic records for daily operations and strategic planning, especially in the case of the state-owned enterprise, where records management is largely, if not exclusively, focused on the value of records as information.   vi Preface  This study was conducted as a requirement for the degree of Doctor of Philosophy in Library, Archival and Information Studies at the University of British Columbia.  The author was responsible for the identification of the research problem, and for the research design, data collection, data analysis, and the writing.  Data collection reported in Chapter 3 is covered by UBC Ethics Certificate H17-02448.    vii Table of Contents Abstract .................................................................................................................................. iii Lay Summary ........................................................................................................................... v Preface ..................................................................................................................................... vi Table of Contents .................................................................................................................. vii List of Tables ............................................................................................................................ x List of Figures ......................................................................................................................... xi Glossary ................................................................................................................................. xii Chinese-English Interlinear ................................................................................................. xiv Acknowledgements ............................................................................................................... xix Dedication .............................................................................................................................. xxi Chapter 1: Introduction ................................................................................................................... 1 1.1 Overview ............................................................................................................................... 1 1.2 Research Problem ................................................................................................................. 2 1.3 Research Questions ............................................................................................................... 6 1.4 Dissertation Structure ........................................................................................................... 8 Chapter 2: Literature Review ........................................................................................................ 10 2.1 Introduction ......................................................................................................................... 10 2.2 Records and Archives Management in China ..................................................................... 12 2.2.1 Records and Archives Management in the Public Sector in China ........................................... 12 2.2.2 Enterprise Records Management in China ................................................................................ 18 2.2.3 Electronic Records Management in China: The Dual Track System and the Dual-Copy System           ………………………………………………………………………………………………………….22 2.3 Managing Records as Evidence and Information ............................................................... 31 2.3.1 Managing Records as Evidence ................................................................................................. 31 2.3.1.1 Requirements for the Admission of Digital Records as Evidence in Canada .................... 33 2.3.1.2 Requirements for the Admission of Paper and Digital Records as Evidence in China ..... 42 2.3.1.2.1 A Brief Review of the Chinese Legal System ........................................................... 46 2.3.1.2.2 Requirements for the Admission of Paper Records as Evidence in Civil Cases in China           ................................................................................................................................... 49 2.3.1.2.3 Requirements for the Admission of Digital Records as Evidence in Civil Cases in China           ................................................................................................................................... 60 2.3.2 Managing Records as Information ............................................................................................. 76 2.4 Cloud-based Services .......................................................................................................... 84 2.4.1 Definition and Characteristics of Cloud Computing ................................................................. 84 2.4.2 Challenges Posed by the Use of Cloud-based Services to Records Management ..................... 88 2.4.3 The Use of Cloud-based Services in Enterprises in China and Challenges Posed by Their Use to Records Management ......................................................................................................................... 93 2.5 Summary ............................................................................................................................. 98 Chapter 3: Methodology .............................................................................................................. 102 3.1.1 The Two Cases ......................................................................................................................... 103 3.1.2 Data Collection ........................................................................................................................ 105 3.1.3 Data Analysis ........................................................................................................................... 109 Chapter 4: Case Study #1 ............................................................................................................. 113 4.1 Research Site ..................................................................................................................... 113 4.2 Background ....................................................................................................................... 114 4.2.1 Elevator Maintenance .............................................................................................................. 114 4.2.2 Going Digital ........................................................................................................................... 117 4.2.3 Cloud Strategy ......................................................................................................................... 119 4.3 Records Management at Company 1 ................................................................................ 120  viii 4.4 Management of Paper Elevator Maintenance Records Before the Introduction of the Digitized Elevator Maintenance Service System ....................................................................... 125 4.5 Cloud-based System: The Digitized Elevator Service Maintenance System ................... 128 4.5.1 Design and Development ......................................................................................................... 129 4.5.2 Functionalities .......................................................................................................................... 130 4.5.3 Integration with Other Systems ............................................................................................... 133 4.5.4 Implementation ........................................................................................................................ 133 4.5.5 The Influence ........................................................................................................................... 138 4.6 Trustworthiness of Elevator Maintenance Data ................................................................ 141 4.6.1 Elevator Maintenance Data ...................................................................................................... 141 4.6.2 Measures Employed by Company 1 for Protecting the Trustworthiness of Elevator Maintenance Data ................................................................................................................................. 142 4.6.3 Archives as a Trusted Third Party in the Protection and Demonstration of the Authenticity of Elevator Maintenance Data ................................................................................................................... 144 4.6.3.1 Transferring Elevator Maintenance Data to the City Archives by Company 1 ............... 147 4.6.3.2 Maintenance Conducted by the City Archives for Protecting and Demonstrating the Authenticity of Elevator Maintenance Data ..................................................................................... 149 4.6.3.3 Certification of Elevator Maintenance Data Stored at the City Archives ........................ 152 4.7 Discussion ......................................................................................................................... 155 4.7.1 What is the Impact of Company 1’s Digital and Cloud Strategy on its Records Management Practices? .............................................................................................................................................. 155 4.7.2 How and to What Extent is the Trustworthiness of Records Protected and Demonstrated in Company 1? .......................................................................................................................................... 157 4.7.2.1 Ensuring and Demonstrating the Reliability of Elevator Maintenance Data ................... 157 4.7.2.2 Protecting and Demonstrating the Authenticity of the Elevator Maintenance Data ........ 159 4.7.2.2.1 Protection of the Authenticity of the Maintenance Data in Company 1 .................. 160 4.7.2.2.2 Protection of the Authenticity of the Maintenance Data at the City Archives ......... 162 1) The Relationship between Company 1 and the City Archives ................................. 165 2) The Transmission of Elevator Maintenance Data from Company 1 to the City Archives ........................................................................................................................ 168 3) The Intellectual and Physical Control Performed by the City Archives on the Elevator Maintenance Data ........................................................................................... 171 4.7.3 How and to What Extent is the Informational Content of Records Exploited for Operational and Strategic Purposes in Company 1? ................................................................................................. 173 Chapter 5: Case Study #2 ............................................................................................................. 175 5.1 Research Site ..................................................................................................................... 175 5.2 Background ....................................................................................................................... 175 5.2.1 The External Context ............................................................................................................... 175 5.2.1.1 The Economic Environment in China Today .................................................................. 175 5.2.1.2 The Port and Coastal Engineering Industry Environment in China Today ..................... 177 5.2.1.3 China’s Public Institution (Shiye danwei) and State-owned Enterprise (SOE) Reform .. 178 5.2.2 The Internal Context ................................................................................................................ 187 5.2.2.1 A Brief Reform History of Company 2 ........................................................................... 187 5.2.2.2 Current Strategy ............................................................................................................... 189 5.2.2.3 Informatization ................................................................................................................. 191 5.2.2.4 Quality Certification ........................................................................................................ 193 5.2.2.5 The Use of Cloud Services at Company 2 ....................................................................... 194 5.2.2.6 Information Systems Used at Company 2 ....................................................................... 196 5.3 Cloud-based Application: Cloud Communication ............................................................ 199 5.3.1 Background .............................................................................................................................. 199 5.3.2 Functionalities .......................................................................................................................... 200 5.3.3 Integration with Other Business Systems ................................................................................ 200 5.3.4 Records Generated While Using Cloud Communication ........................................................ 201 5.3.5 The Influence of the Use of Cloud Communication ................................................................ 203 5.4 Records and Archives Management at Company 2 .......................................................... 203  ix 5.4.1 Records and Archives Management Organizational Structure ................................................ 203 5.4.2 Records to be Filed and Transferred to the Internal Archival Unit ......................................... 206 5.4.3 Record Types ........................................................................................................................... 210 5.5 Trustworthiness of Company 2’s Records ........................................................................ 215 5.5.1 Electronic Records Management: The Adoption of the Dual-Copy System ........................... 215 5.5.2 Electronic Records Management System (ERMS) .................................................................. 217 5.5.2.1 Background ...................................................................................................................... 217 5.5.2.2 Functionalities .................................................................................................................. 218 5.5.2.3 Integration with Business Systems .................................................................................. 221 5.5.2.4 Limitations of the Electronic Records Management System ........................................... 224 5.6 Use of Records .................................................................................................................. 226 5.7 Discussion ......................................................................................................................... 230 5.7.1 What is the Impact of Company 2’s Digital and Cloud Strategy on its Records Management Practices? .............................................................................................................................................. 230 5.7.2 How and to What Extent is the Trustworthiness of Records Protected and Proved in Company 2?           ................................................................................................................................................. 234 5.7.3 How and to What Extent is the Informational Content of Records Exploited for Operational and Strategic Purposes in Company 2? ................................................................................................. 237 5.7.3.1 The Expanding Scope of Records Transferred to the Internal Archival Unit .................. 238 5.7.3.2 Classification of Records ................................................................................................. 240 5.7.3.3 The Use of Knowledge Management Methods to Exploit the Content of Records for Use        …………………………………………………………………………………………..241 Chapter 6: Discussion ................................................................................................................... 242 6.1 Discussion of Main Findings ............................................................................................ 242 6.2 Significance of the Study .................................................................................................. 252 6.3 Implications of the Study .................................................................................................. 254 6.4 Future Research ................................................................................................................ 256 6.5 Limitations of the Study ................................................................................................... 258 6.6 Final Thoughts .................................................................................................................. 259 References ............................................................................................................................. 261 Appendices ........................................................................................................................... 279 Appendix A Interview Consent Form .................................................................................... 279 A.1 Interview Consent Form in English ......................................................................... 279 A.2 Interview Consent Form in Chinese ........................................................................ 282 Appendix B Interview Questions for Case 1 .......................................................................... 285 B.1 Interview Questions for Interviewee 1 .................................................................... 285 B.2 Interview Questions for Interviewee 2 .................................................................... 293 B.3 Interview Questions for Interviewee 3 & 4 ............................................................. 299 B.4 Interview Questions for Interviewee 5 .................................................................... 305 Appendix C Interview Questions for Case 2 .......................................................................... 309 C.1 Interview Questions for Interviewee 6 .................................................................... 309 C.2 Interview Questions for Interviewee 7 & 8 ............................................................. 322 C.3 Interview Questions for Interviewee 9 .................................................................... 324 Appendix D A List of Some Examples of the Categories Generated in Case 1 and Case 2 .. 325 D.1 Some Examples of the Categories Generated in Case 1 ......................................... 325 D.2 Some Examples of the Categories Generated in Case 2 ......................................... 327 Appendix E An Example of the Mind Maps Generated in the Study .................................... 328    x List of Tables TABLE 1 ROLE OF EACH INTERVIEWEE IN THE TWO CASE STUDIES ....................................................................... 109            xi List of Figures  FIGURE 1. THE PATH OF MAINTENANCE DATA TRANSMISSION ............................................................................. 148 FIGURE 2. CERTIFICATION TEMPLATE (TRANSLATED FROM THE ORIGINAL FORM) .............................................. 154 FIGURE 3 DIRECTORY TREE IN THE ELECTRONIC RECORDS MANAGEMENT SYSTEM AT COMPANY 2 (CREATED BASED ON THE COMPANY’S ELECTRONIC RECORDS MANAGEMENT SYSTEM) ........................................... 213 FIGURE 4. PROCESSING FORM FOR CREATING A DOCUMENT (TRANSLATED FROM THE ORIGINAL FORM) ............ 224   xii Glossary1  Classification Scheme: A plan for the systematic identification and arrangement of business activities and records into categories according to logically structured conventions, methods and procedural rules. (“Classification scheme”, 2007, p. 10) Cloud Computing: A model for enabling ubiquitous, convenient, on-demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction. This cloud model is composed of five essential characteristics, three service models (i.e. Software as a Service, Platform as a Service, and Infrastructure as a Service), and four deployment models (i.e., Public cloud, private cloud, community cloud, and hybrid cloud). (Mell & Grance, 2011) Cloud-based Services (or Cloud Services): A shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction and made available to customers on demand via a network, typically, the Internet. Community Cloud: Cloud infrastructure shared among several organizations from a specific community with common concerns (security, compliance, jurisdiction, etc.), whether managed internally or by a third party. Document: An indivisible unit of information constituted by a message affixed to a medium (recorded) in a stable syntactic manner. A document has fixed form and stable content. (“Document”, 2007) Electronic Record: An analogue or digital record that is carried by an electrical conductor and requires the use of electronic equipment to be intelligible by a person. (“Electronic record”, 2007, p. 20) Electronic Records Management System (ERMS): Information systems that are designed to capture and manage records in paper and electronic formats in accordance with the organization’s records management policies and principles. Hybrid Cloud: A composition of two or more clouds (private, community or public) that remain distinct entities but are bound together. Infrastructure as a Service (IaaS): The capability provided to the consumer is to provision processing, storage, networks, and other fundamental computing resources where the consumer is able to deploy and run arbitrary software, which can include operating systems and applications. The consumer does not manage or control the underlying cloud infrastructure but has control over operating systems, storage, and deployed applications; and                                                 1 Definitions without citations are provided by this author for the purpose of this dissertation.    xiii possibly limited control of select networking components (e.g., host firewalls). (Mell & Grance, 2011) Platform as a Service (PaaS): The capability provided to the consumer is to deploy onto the cloud infrastructure consumer-created or acquired applications created using programming languages, libraries, services, and tools supported by the provider. The consumer does not manage or control the underlying cloud infrastructure including network, servers, operating systems, or storage, but has control over the deployed applications and possibly configuration settings for the application-hosting environment. (Mell & Grance, 2011) Private Cloud: Cloud infrastructure operated solely for a single organization and for its exclusive use; it can be managed internally or by a third party. Public Cloud: Services are delivered by third-party cloud service providers over a network and are open for public use. Record: A document made or received in the course of a practical activity as an instrument or a by-product of such activity, and set aside for action or reference. (“Record”, 2007) Records Management System: A unified set of resources, responsibilities, procedures and equipment designed to maintain and provide access to records. (Shepherd & Yeo, 2003). Records Management: A field of management responsible for the efficient and systematic control of the creation, receipt, maintenance, use and disposition of records, including processes for capturing and maintaining evidence of and information about business activities and transactions in the form of records. (International Standards Organization [ISO], 2016) Retention Schedule: A document providing description of records series and/or classes and specifying their authorized dispositions. (“Retention schedule”, 2007, p. 43)   Software as a Service (SaaS) Applications: Also known as cloud-based applications, are applications hosted by a vendor or service provider using cloud infrastructure and made available to customers via a network, typically the Internet. Customers can access the applications through a web browser or a program interface.     xiv Chinese-English Interlinear2  CAD3 电⼦⽂件光盘存储、归档与档案管理要求 (GB/T 17678.1–1999): Requirements for Optical Disk Storage, Filing and Archival Management of CAD Electronic Records (GB/T 17678.1–1999)4  财政部: Ministry of Finance  档案: Archives 档案⼯作基本术语 (DA/T1–2000): Archival Glossary (DA/T1–2000)  档案馆: Archives 档案室: The internal Archival Unit 档案著录规则 (DA/T 18–1999): Bibliographical Description for Archives (DA/T 18–1999)  党政机关公⽂处理⼯作条例: Regulations on the Handling of Records in the Party and Government Organs 电梯使⽤管理与维护保养规则 (TSG T5001–2009): Elevator Service Management and Maintenance Regulation (TSG T5001–2009) 电梯维护保养规则 (TSG T5002–2017): Lift Maintenance Regulation (TSG T5002–2017) 电⼦公⽂归档管理暂⾏办法: Interim Measures on the Filing and Transferring of Electronic Records 电⼦公⽂归档管理暂⾏办法(2018 修正): Interim Measures on the Filing and Transferring of Electronic Records (2018 Revision)                                                 2 In this dissertation, the English translation of the titles of Chinese records and archives management regulations, specifications, standards, legislations, and other relevant documents cited were taken from the original documents, if one was provided, to facilitate their identification by the readers, or, if one was not provided, was made by this author. Despite the decision to respect the original sources as much as possible, this author was aware of the inconsistencies and inaccuracies in some the English translations and strove to clarify them in the text of the dissertation.  In addition, in this dissertation, the English translation of the titles of Chinese legislations, juridical interpretations, provisions, and other legal documents were taken, where available, and refined only when deemed necessary by this author, from the China Law Info database, a database of the Legal Information Center Peking University Law School that contains Chinese Laws and Regulations, Judicial Cases and Law Journals in Chinese and English. Where no English translation is available, the translation was made by this author.  3 Computer Assisted Design 4 This English translation is taken from the one provided in the standard in the spirit of paying due respect to the original source. Guidang was translated into “filing”, which, however, is not quite accurate in terms of reflecting the substance of this action. For the purpose of this dissertation, a better translation would be “filing and transferring”. For a detailed discussion, please see footnote 26.   xv 电⼦⽂件管理系统通⽤功能要求 (GB/T 29194–2012): General Functional Requirements for Electronic Records Management System (GB/T 29194–2012)  电⼦⽂件管理暂⾏办法: Interim Measures for the Administration of Electronic Documents 电⼦⽂件归档与电⼦档案管理规范 (GB/T 18894–2002): Specification on Electronic Documents Archiving and Electronic Records Management (GB/T 18894–2002)5 电⼦⽂件归档与电⼦档案管理规范 (GB/T 18894–2016): Specification on Electronic Documents Archiving and Electronic Records Management (GB/T 18894–2016)6 法:Legislation  公⽂,⽂件,⽂件材料: Records 公⽂电⼦邮件归档与管理规则 (DA/T 32–2005): Standards of Electronic Mail Document Filing and Management (DA/T 32–2005)7 关于办理刑事案件排除⾮法证据若⼲问题的规定: Provisions on Several Issues Concerning the Exclusion of Illegal Evidence in Criminal Cases 关于办理刑事案件收集提取和审查判断电⼦数据若⼲问题的规定: Several Issues Concerning the Collection, Taking, Examination, and Judgment of Electronic Data in the Handling of Criminal Cases 关于⼯程勘察设计单位体制改⾰的若⼲意见: Several Opinions on the Structuring Reform of Surveying and Engineering Institutions 关于⼯业企业技术档案⼯作的报告: Report on Scientific Records Management Work within Industrial Enterprises 关于加强中国(上海)⾃由贸易试验区电⼦⽂件和电⼦档案管理的指导意见: Guidance on Strengthening Digital Records and Digital Archives Management 关于勘察设计单位试⾏技术经济责任制的统治: Notice on the Adoption of Economic Responsibility System Among all Surveying and Engineering Institutions on a Trial Basis                                                 5 This English translation is taken from the one provided in the standard. In this standard, Wenjian (⽂件) was translated into “documents”, and guiding(归档) was translated into “archiving”. For accuracy, wenjian should have been translated into “records” and guidang should have been translated into “filing and transferring”. Yet, the original translation is used with the intention to respect the original source to the fullest extent.  6 See the above footnote.  7 This English translation comes from the standard and is kept in order to give full respect to the original source. In line with the terminology used in this dissertation, gongwen (公⽂) should have been translated into “records” rather than “documents”, and instead of “filing”, guiding(归档) should have been translated into “filing and transferring”.   xvi 管理办法: Measures  归档: File and transfer  规定: Provisions  国家发展和改⾰委员会: National Development and Reform Commission 国家基本建设委员会: State Basic Construction Commission 国家计划委员会: State Planning Commission 国家质量监督检验检疫总局: General Administration of Quality Supervision, Inspection and Quarantine (AQSIQ) of the People’s Republic of China 国务院办公厅: General Office of the State Council (the State Office) 国务院国有资产监督管理委员会: The State-Owned Assets Supervision and Administrative Commission (SASAC) 国营⼯业企业⼯作条例(草案): Regulations on the Work of State-owned Industrial Enterprises (Draft) 国营企业档案管理暂⾏规定: Provisional Regulations on Enterprise Records Management at State-Owned Enterprises 国有企业⽂件材料归档办法: Measures on Filing and Transferring of Records at State-Owned Enterprises 互联⽹电⼦数据证据举证、认证规程(试⾏): The Code of the Admission and Evaluation of Internet-based Electronic Data Evidence (For Trial Implementation) 机关档案⼯作条例: Regulations on Archives Management Work Within State Organs 家庭联产承包责任制: Household responsibility system 经济责任制: Economic responsibility system 劳动与社会会保障部: Ministry of Labour and Social Security  企业⽂件材料归档范围和档案保管期限规定: Provisions on the Scope of Enterprise Records to be Filed and Transferred and Their Retention Period  全国档案事业发展“⼗三五”规划纲要: Outline of the 13th Five-year Plan for the Development of Archival Undertaking in China (2016-2020)  xvii ⼈⼒资源部: Ministry of Personnel  ⼈⼒资源和和社会保障部: Ministry of Human Resources and Social Security  ⼈民法院统⼀证据规定(司法解释建议稿): Provisions on Uniform Evidence in People’s Courts (Proposed Draft for Judicial Interpretation) 书证: Documentary evidence 双轨制: Dual track system 双套制: Dual-copy system 特种设备安全技术规范(TSG 08–2017): Special Equipment Service Administration Regulation (TSG 08–2017) 特种设备安全监察条例(2009 修订): Regulations on Safety Supervision of Special Equipment (2009 Revision) 条块结合: Vertical and horizontal administration system 条例: Regulations 外商投资企业档案管理暂⾏规定: Provisional Regulations on the Archives Management of Foreign-Funded Enterprises ⽂书类电⼦⽂件元数据⽅案 (DA/T 46–2009): Metadata Standard for Administrative Electronic Records (DA/T 46–2009) 指导意见: Guidance 质检总局特种设备局关于⿎励使⽤⽆纸化电梯维保记录的指导意见(质检特函【2013】3 号): Guidelines for Encouraging Use of Paperless Elevator Maintenance Records  中共中央办公厅: General Office of the Communist Party of China Central Committee 中共中央⼗四届五中全会: Fifth Plenary Session of the 14th Party Central Committee  中共中央⼗五届四中全会: Fourth Plenary Session of the 15th Party Central Committee  中国共产党第⼗⼋届中央委员会第三次全体会议: Third Plenum of the 18th Party Congress 中华⼈民共和国档案法 (2016 修正): Archives Law of the People’s Republic of China (2016 Revision)  xviii 中华⼈民共和国档案法实施办法 (2017 修正): Measures for the Implementation of the Archives Law of the People’s Republic of China (2017 Revision) 中华⼈民共和国电⼦签名法 (2015 修正): Electronic Signature Law of the People's Republic of China (2015 Amendment) 中华⼈民共和国公证法 (2017 修正): Notary Law of the People’s Republic of China (2017 Amendment) 中华⼈民共和国国家档案局: National Archival Administration of China 中华⼈民共和国⾏政诉讼法 (2017 修正): The Administrative Litigation Law of the People's Republic of China (2017 Revision) 中华⼈民共和国合同法:  Contract Law of the People’s Republic of China 中华⼈民共和国民事诉讼法 (2017 修正): The Civil Procedure Law of the People's Republic of China (2017 Revision) 中华⼈民共和国特种设备安全法: Special Equipment Safety Law of the People’s Republic of China 中华⼈民共和国刑事诉讼法 (2012 修正): Criminal Procedure Law of the People’s Republic of China (2012 Amendment) 中华⼈民共和国中外合资经营企业法: Law of the People’s Republic of China on Chinese-Foreign Joint Equity Ventures 中华⼈民共和国中外合资经营企业法实施条例: Regulations for the Implementation of the Law of the People’s Republic of China on Chinese-Foreign Joint Equity Ventures 抓⼤放⼩: Grasping the large ad freeing the small 最⾼⼈民法院关于民事诉讼证据的若⼲规定 (2008 修正): Some Provisions of the Supreme People’s Court on Evidence in Civil Procedures (2008 Amendment)    xix Acknowledgements  This dissertation would not have been possible without the support and guidance of many people.  I owe my greatest debt of gratitude to my supervisor, Prof. Luciana Duranti, whose unconditional support, inspiring guidance, and confidence in me enabled me to start and complete this project.  I would also like to thank the other members of my committee for their invaluable support and input throughout the research: Prof. Luanne Freund for her critical, insightful, and constructive feedback on the methods, structure, the underlying theories, and other aspects of the research; Prof. Sherry L. Xie for her guidance on the translation of Chinese terminologies, on the Chinese records and archives management system, and the overall Chinese context; and Prof. Giovanni Michetti for his critical and constructive comments on the dissertation.  I would like to thank my past committee members Prof. Anthony Sheppard and Prof. Michael Rochemont for their guidance and assistance.  I would like to thank Prof. Rick Kopak, Prof. Erik Kwakkel, Prof. Pierluigi Feliciati, and Prof. Luciana Duranti for attending my “mock defence” and providing invaluable advice.  I would like to thank the Records in the Cloud (RiC) project and the InterPARES Trust project for giving me the opportunity to work with many top scholars in the records and archives management field.  xx My studies would not have been possible without the support of China Scholarship Council (CSC, File No. 201208120021).  My thanks also go to friends and colleagues who supported and encouraged me through this whole journey, specifically, Daisy Hui, Scott Owens, Joy Rowe, Corinne Rogers, Lois Evans, Elaine Goh, Elizabeth Shaffer, Adam Jansen, Jessica Bushey, Evelyn Markwei, Darra Hofman, Danielle Batista, Michelle Kaczmarek, Saguna Shankar, Hoda Hamouda, Samuel Dodson, Millicent Mabi, and Alamir Novin.  Finally, a special thank you to my family, my son, my husband, my parents, my mother-in-law and father-in-law, my sisters, my brother, for their unconditional love for me regardless of my flaws.       xxi Dedication        To my son, who made me rethink the meaning of life To my parents, who provided the best education possible for me    1 Chapter 1: Introduction  1.1 Overview  One recent technological innovation is the shift to cloud-based services (or cloud service), which refer to “a shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services)” that can be “rapidly provisioned and released with minimal management effort or service provider interaction” (Mell & Grance, 2011, p. 2) and made available to customers on demand via a network, typically, the Internet.  In 2016, a Forrester Research predicted that, by 2020, cloud service revenues will reach US $236 billion in the private sector and Software as a Service (SaaS) will make up more than two-thirds of spending related to customer relationship management, human resource management, e-commerce, and e-purchasing (“Forrester”, 2016). The use of cloud-based services has brought both benefits and risks to records8 management: “a field of management responsible for the efficient and systematic control of the creation, receipt, maintenance, use and disposition of records, including processes for capturing and maintaining evidence of and information about business activities and transactions in the form of records”(ISO, 2016, p. 3). Some of the benefits include lower cost, higher flexibility and scalability, ease of use, improved reliability and security, and ubiquity (Cunningham, 2016; Cunningham & Wilkins, 2009; Datskovsky, 2016).  Some of the risks include concerns related to loss of physical control of data and records stored in the cloud, threat to the long-term trustworthiness of the data stored in the cloud, lack of                                                 8 In this dissertation, a record is defined as “a document made or received in the course of a practical activity as an instrument or a by-product of such activity, and set aside for action or reference” (“Record”, 2007, n.p.).   2 records management functionalities of cloud-based services, and challenges for legal proceedings (Barnes, 2010; Blair, 2010; Cunningham, 2016; Cunningham & Wilkins, 2009; Datskovsky, 2016; Ferguson-Boucher & Convery, 2011; Gatewood, 2009, National Archives and Records Administration [NARA], 2010; Stuart & Bromage, 2010).  The present study is situated against this backdrop and aims to examine records management in the context of emerging cloud-based services — more specifically, to scrutinize how the evidentiary capacity of records is protected and demonstrated and how the informational value of records is exploited. Yet, as records are the by-products of business activities and thus are influenced by a great many interrelated contextual factors, it would be extremely challenging to segregate the impact of the use of cloud-based services from the impact of other factors. This is particularly so in a qualitative case study like this one, the advantage of which is the ability to examine the subject of study in its context. Therefore, the influence of cloud-based services will be examined together with other contextual factors.   1.2 Research Problem In an increasingly accountable environment, records generated in the conduct of business activities are used as evidence of such activities to demonstrate that organizations have met the legal, regulatory, and fiscal requirements in regular audits or inspections, and to protect their interests in resolving legal disputes. It is the evidentiary capacity of records that is utilized in these activities. Shepherd and Yeo (2000) state that it is the “essential characteristic of a record” to provide evidence of some specific activity (p. 2). To   3 successfully fulfill such purpose, records usually have to satisfy admissibility rules. For instance, in common law countries, they have to satisfy, in addition to the relevancy to the matter at issue, three rules: 1) the business records exception to hearsay rule9, 2) the best evidence rule10, and 3) the authentication rule11. However, electronic records12 in general and those created and stored in cloud-based services in particular are raising questions about the applicability of these rules (Chasse, 2010; Duranti, Rogers, & Sheppard, 2010). Statutory law in Canada has replaced the best evidence rule—which is no longer relevant to digital records—with proof of the integrity of the system in which the record in question resides (Canada Evidence Act (R.S.C., 1985, c. C-5)13). And, for records stored in the cloud, the Electronic Records As Documentary Evidence (CAN/CGSB-72.34-2017), a standard issued by the Canadian General Standards Board, suggests that, in negotiating the contract with the cloud service provider, the user incorporates a clause in the contract allowing “access to the identity and recordkeeping metadata…and the ability to verify the integrity of the system” (p.32). The ability to access the “identity and recordkeeping metadata” is indeed a key issue, as it affects the user’s ability to monitor, audit, and prove the continuing trustworthiness of records stored                                                 9 The exception to the hearsay rule aims to ensure that the statements contained within the record truthfully reflect the business matter it documents. Records are considered as hearsay as the person who made the statements in them cannot subject to confrontation and cross-examination. However, they can be admitted under the condition that the circumstances in which the statement was made were equally effective to confrontation and cross-examination in terms of ensuring their reliability. For a detailed description of this rule, please see section 2.3.1.1. 10 The best evidence rule aims to establish the integrity of the records. Under this rule, it is often required that the original of a record be submitted in evidence as it is easier to detect falsification in the original than in a copy. For a detailed description of this rule, please see section 2.3.1.1. 11 The authentication rule aims to establish the identity of the records, such as the connection between the author and the claims within the record. For a detailed description of this rule, please see section 2.3.1.1. 12 Electronic record refers to “an analogue or digital record that is carried by an electrical conductor and requires the use of electronic equipment to be intelligible by a person” (“Electronic record”, 2007, p.20). Further, according to the definition of “analogue” in the InterPARES project, analogue record can be defined as the representation of a record “through the use of continuously variable electronic signals or mechanical patterns” (“Analogue”, 2007, p. 4), and digital record means that the representation of a record through discrete, binary values (“Digital”, 2007, p. 4). In this dissertation, electronic record and digital record are used interchangeably.    13 Current to August 19, 2018.    4 in the cloud. However, cloud providers often restrict access to these metadata for business reason and the security of the services (Ferguson-Boucher & Convey, 2011; Bushey, Demoulin, & McLelland, 2015).   Another related issue is whether identity and recordkeeping metadata exist in the system and whether records stored in the cloud are under records management control.  Gatewood (2009) identified “not having records management control” over the information stored in the cloud as one of the two major compliance concerns, with the other being “not knowing where their information is stored” (p.33). In comparison with in-house Electronic Records Management System (ERMS)14 and information systems, most cloud-based services were not designed and implemented with records management requirements in mind (Blair, 2010; Ferguson-Boucher & Convey, 2011). As a result, some key records management functionalities may be missing (Ferguson-Boucher & Convey, 2011). For instance, a survey conducted by this author15 found that only about sixty-five percent of Software as a Service (SaaS) applications16 that were reported by respondents functioning as records management systems were able to classify and dispose of records in accordance with the organization’s requirements.                                                    14 In this dissertation, an electronic records management system (ERMS) is defined as an information system that are designed to capture and manage records in paper and electronic formats in accordance with the organization’s records management policies and principles. 15 Pan, W. (2017). Records creation and maintenance in the context of Software as a Service (SaaS) applications survey report. Unpublished report. 16 Also known as cloud-based applications, these are applications hosted by a vendor or service provider using cloud infrastructure and made available to customers via a network, typically the Internet. Customers can access the applications through a web browser or a program interface.    5 This lack of records management control over records stored in the cloud and of the ability to monitor the control performed on records in the cloud may seriously affect an organization’s ability to demonstrate that the records used to account for compliance activities or for legal purposes are not altered (Cunningham, 2010; Gatewood, 2009).  Additionally, cloud-based services present us with a distinct opportunity to examine the assumptions underlying traditional archival practices and to use cloud technology to enhance such approaches (Michetti et al., in press). For instance, one study suggests that the validity of the retention and disposition schedule in coping with records stored in the cloud may require re-examination, given that cloud-based services can store data at a low cost and offer strong capability to analyze the data, and it appears that organizations are now willing to store records longer than the retention period specified in the retention and disposition schedule in order to exploit their content for strategic and operational purposes (Pan & Mitchell, 2015). Other research, although not specifically focusing on the cloud context, goes so far as to suggest that a traditional compliance-related rationale for records management is inadequate, as it is essentially “a defensive strategy”, and advocates instead the adoption of  “an offensive strategy” in which records management can help an organization achieve its mission (Sprehe, 2005).  As a country striving to achieve national rejuvenation, China has experienced huge and rapid changes in every aspect of its society, including economy, environment, technology, culture, legislation, and politics, and this trend will likely continue in the foreseeable future. Because of this dynamic environment, issues that are common in other contexts become particularly intense in China and require a conducive and supportive   6 environment.  This is also why reform has been a central theme in the state’s policies and strategies. Thus, China provides a very interesting setting to explore emerging issues and possible solutions. The topic of this study—the management of the evidentiary capacity and informational value of records in the context of cloud-based services—is not an exception.  Therefore, research is needed to understand: 1) how the evidentiary capacity of records generated in the context of cloud-based services can be protected and demonstrated so that these records can be used by their creator to prove that obligations have been met, and 2) how the information in the records generated in the context of cloud-based services can be exploited for strategic and operational purposes in support of organizational mission and objectives.   1.3 Research Questions In light of the research problems identified above, the purpose of this study is to explore how the two uses of records as evidence and as information are managed in practice in the context of cloud-based services in China, and what the challenges are, if any. Modern records management, as commonly understood and discussed, is a discipline originated in the United States in 1930s, to cope with the large volume of records generated after the war (Bahmer, 1943; Rasmussen, 2010). For political reasons, management of records in China is influenced by the Soviet Union rather than the United States and thus is different from the latter (Cui, 2016b). Yet, with the shift towards electronic records management, including the publication of international standard on records management (e.g., ISO 15489), which is primarily based on western records management practice—in particular   7 the Australian standard AS4390 (Healy, 2010), and the translation and endorsement of these standards in China17, there is a potential conflict between existing records management program in China and the electronic records management principles and methods advocated. The existence of this conflict and its possible resolution is an important feature of Chinese records management that enables this author to examine the two important uses of records in a rapidly changing environment.  The overarching research question that guides this study is: • How are records managed as evidence and information in the context of cloud-based services? The research sub-questions guiding this study are: for organizations using cloud-based services, • What is the impact of an organization’s digital and cloud strategy on its records management practices? • How and to what extent is the trustworthiness of records protected and proved in such organizations? • How and to what extent is the informational content of records exploited for operational and strategic purposes in such organizations?                                                 17 For instance, ISO 15489-1: Information and documentation – Records Management – Part 1: General was translated and identified as a national standard GB/T 26162.1-2010 信息与⽂献 ⽂件管理 第 1 部分:通则, and ISO 23081-1: 2006 Information and documentation - Records management processes - Metadata for records - Part 1: Principles was translated and identified as a national standard GB/T 26163.1-2010 信息与⽂献 ⽂件管理过程 ⽂件元数据 第 1 部分:原则   8 1.4 Dissertation Structure  Chapter 2 offers a review of legal and regulatory literature on the methods for assessing the trustworthiness of records as well as records and archives management literature on the methods for exploiting the information contained in records for strategic and operational purposes both in China and around the world. The literature on the characteristics of cloud-based services and the challenges and opportunities they present for records management are also reviewed to identify prior research and gaps in our understanding.  Chapter 3 outlines the methodology of this study, including a brief introduction to case study method, the two cases studied, data collection and analysis methods used in the course of the case studies.   Chapter 4 presents the results and findings of case study #1, including a description of the company’s background, its use of cloud services, the cloud-based application studied, its records management work, and salient themes emerged. The chapter concludes by discussing the research questions.  Chapter 5 presents the results and findings of case study #2, including a description of the company’s internal and external context, its use of cloud services, the cloud-based application studied, its records management work, its Electronic Records Management System, and the salient themes that emerged. The chapter concludes by discussing the research questions.    9 Chapter 6 concludes this dissertation by discussing the major findings of this study, its implications for records management theory and practice, its limitations, and possible future research topics and areas for inquiry.      10 Chapter 2: Literature Review  2.1 Introduction  This research sits at the interface between records management and emerging cloud-based services, and examines how the evidentiary capacity of records is safeguarded and demonstrated so they can be used to help the organizations prove their business activities to the government and protect their interests in legal disputes and how the information in them is systematically exploited. Therefore, this literature review examines existing legislation, regulations, and legal literature, and records and archives management literature that address the rules of admissibility and the use of the information contained in records. The review seeks to identify achievements of prior research upon which to build on as well as gaps and opportunities warranting further research.  Depending on the disciplinary context and the perspective taken, the understanding of the concept of evidence and hence the requirements for the protection of records’ ability to serve as evidence vary greatly. For instance, the archival concept of evidence is understood as a relationship between a record and the facts or event(s) it is about or is produced by (Meehan, 2006); as a result, archival theory, principles, and methods (e.g., the definition of records, the principle of provenance) are designed to protect and demonstrate this relationship. Legal evidence, in its most limited sense, is defined as that “which satisfies the criteria set out in the rules and which is therefore admissible in a court of law” (Meehan, 2006, p.133). Despite being criticized as a “narrow” and “rule-bound” conception of evidence, this understanding of legal evidence and the rules governing its admissibility nevertheless provide records managers and archivists with   11 justification to manage records effectively and with a point of reference from which to formulate records management requirements (Meehan, 2006).  This dissertation will consider evidence in a legal sense rather than focusing on the archival concept of evidence. This is not to dismiss the importance of the archival concept—on the contrary, a follow-up review of literature shows that it is very relevant to the discussion—but rather to focus on the practical needs of records creating organizations, especially enterprises, for whom satisfying regulatory accountability and legal compliance through records is of immediate importance.  The ever-increasing amounts of data generated each day by business, due to the use of information systems, the emergence of data analytics techniques such as big data, and the ubiquitous computing capacity offered by on-demand by cloud computing present enterprises with unprecedented opportunities to tap into digital information assets to identify trends, linkages, and risks or detect new saving opportunities to sustain competitive advantage in a rapidly changing environment.  Therefore, in this dissertation, the expression “informational use” of records refers to the analysis and exploitation of the content of records in a systematic manner via information technologies and business processes to support the organizational mission and operation. Traditional reference to records through keywords searches to look up individual records or facts is not included in this concept of “information use” and does not fall under the scope of this research.    12 2.2 Records and Archives Management in China 2.2.1 Records and Archives Management in the Public Sector18 in China Xie, Feng, and Ma (2017) declared in their efforts to identify the equivalence between Chinese and English records and archives management concepts that “it is incredibly challenging to find true equivalents in different languages and in some cases, simply impossible” (p. 1). Though it is not the purpose of this research to clarify the correspondence between the two19, to introduce records and archives management in China it is necessary to provide an explanation of the meanings of the English records and archival terms used in this dissertation in order to accurately reflect the Chinese context. In China, the records and archives management lifecycle can be divided into three stages based on location: records20 in the creating office, records in the internal Archival unit, and records in the archives. When records are in the creating office, according to Regulations on the Handling of Records in the Party and Government Organs—a key regulation21 issued by the General Office of the State Council (or the State Office) along with the General Office of the Communist Party of China Central Committee—                                                18 The public sector includes governments, public institutions, and mass organizations. Mass organizations, or literally, people’s organizations are organizations led by the Chinese Communist Party and created per their respective characteristics to perform certain social activities; they are used as a means to “penetrate the society at large, encourage participation, mobilize the masses, and integrate them with the party” (Worden, Savada, & Dolan, 1988, p. 418). Some examples of mass organizations include Communist Youth League of China, All-China Women’s Federation, and All-China Federation of Industry and Commerce. It is important to note that although this dissertation focuses on Chinese enterprises in the private sector, as will be discussed later, many Chinese enterprises, especially state-owned ones, were originally public institutions under the centrally planned economy and, therefore, have inherited the records and archives management system of the public sector in China.  19 It is out of the scope of this dissertation to provide a thorough discussion of the corresponding relationship between the key concepts in archival science in Chinese and in English. Sources that might be helpful to grasp this issue include Pan & Fang (2013), Xie et al. (2017), Xie & Wang (2015a), and Xie & Wang (2015b) 20 The way the term “records” is used in this section and throughout this dissertation, unless otherwise specified, is the North American’s way of using this term, as defined at the beginning of this dissertation.  21 In China, regulations are usually issued by the state council or a local government. Those issued by the state council are only inferior to the law.   13 management activities performed on them include control on their making (for outgoing records or internal records)(e.g., writing, reviewing, signing) or receipt (for incoming records), control on their handling and use (i.e., on their movement, e.g., for incoming records, registration, first-review, action, circulation, reminder, and reply; for outgoing records, review, registration, printing, and dispatch), filing once the matters contained in the records have been dealt with, and transferring to the internal Archival Unit. According to this Regulations, the state authority overseeing the management of records in the creating office is the State Office; and, within organizations, the responsibility for overseeing the management of records in this stage usually falls on the Office or the secretary (Article 6, Article 7). However, this Regulations only identifies 16 types of administrative records, for other records in the creating office, there is no regulations on how they should be created and handled.  The Chinese terms used to describe records in this stage include wenjian cailiao22 (records23), and gongwen24 (official records created by the state and the Party). With the trend of going paperless, the manual control performed on records in most Chinese                                                 22 As in Measures for the Implementation of the Archives Law of the People’s Republic of China (2017 Revision) 23 The translation of the English term “record” into Chinese is a heated issue in the Chinese records and archives management field. Some Chinese scholars maintain that the English term should be translated wenjian (⽂件) in Chinese (e.g. An, Sun, & Bai (2016), Wang (2012)); this, however, is a term used colloquially to refer to records in the creating office in China and does not cover records in the internal Archival Units; others argue that it should be translated dangan (档案) (e.g., Hou (2016), Jiang (2015), Wang (2010)), a term which is used to describe records in the internal Archival Unit and the archives, with those in the former usually being distinguished as xianxing dangan (现⾏档案) or, literally, current archives. However, reversely, when translating from Chinese to English, dangan is usually translated archives, which is used to describe records that have been accessioned into an archival institution in English speaking countries. This confusion in the translation of Chinese terms and those in English is due partly to the difference between the Chinese records and archives management system and the system of English speaking countries, in particular North America, and partly to the confusion between colloquial use and professional use of the terms. Nevertheless, this issue becomes increasingly serious when Chinese scholars participate in international discussion and draw on statements made in other countries.   24 As in 档案机关公⽂处理条例   14 institutions and organizations has been automated, for instance, being embedded into the Office Automation [OA] system25, which creates, handles, and manages the records before they are “filed and transferred” to the internal Archival Unit (e.g., Hong, 2017; Su, 2017).  Once the business activity or transaction that originated the records is completed —namely, records have accomplished the purpose for which they were created (i.e., made or received) — the records are “filed and transferred”26 to the internal Archival Unit (Dangan shi) for internal recordkeeping purposes. Appraisal is performed at this point to determine which records will have to be transferred to the internal Archival Unit; and the archival policy document guiding appraisal is the organization’s “retention and disposition schedule”. All government organizations over a certain size have an internal Archival Unit.                                                  25 In China, the Office Automation (OA) system is one of the most widely used information systems within different types of organizations and its use usually signifies the transition from a paper environment to a digital environment. The range of functionalities the OA systems can offer varies, but most of them incorporate functionalities such as making a record, obtaining approval from relevant managers for the record, and managing the record once the business matter it relates to is completed. In some organizations, all business processes involving an approval procedure are embedded into the OA system. Therefore, to a certain extent, the OA system is where all the administrative records of an organization are created and stored.  26 This action is identified in the Chinese records and archives management system as guidang (归档). According to relevant Chinese regulations, policies, and standards, this action is usually associated with three activities:  arrangement (整理), filing (⽴卷) and transferring to the internal Archival Units (移交) (e.g., Article 10 in the Archives Law of the People’s Republic of China (2016 Revision), and the entry 3.1.1 guidang in the Archival Glossary (DA/T1–2000)). In fact, according to Xie & Wang (2015a), guidang can be considered as a threshold action for the use of the term dangan in China as regardless of the types of materials discussed in the text, once they have undergone the process of guidang, they are considered “archives” (or the Chinese term dangan). (p. 128) However, the translation of this term into English is not consistent among Chinese records and archival regulatory documents, and, to some extent, is inadequate. For instance, the national standard on the guidang and management of electronic records (i.e., GB/T 18894–2016) uses the English term “archiving” to describe the guidang action, while the national standard on the storage, guidang and management of CAD electronic records (GB/T 17678.1–1999) and the Archival Glossary (DA/T1-2000) uses the English term “filing” to describe guidang. In light of the lack of exact equivalent records and archival term in English for this Chinese term, the phrase “filing and transferring” within quotation marks will be used in this dissertation to describe this action to accurately reflect the types of activities involved. The activity “arrangement” is implied in the activity of “filing”.     15 Records that have been transferred to the internal Archival Unit are usually identified as dangan27 (or its English translation “archives”) or xianxing dangan (literally “current archives”) to distinguish them from records preserved in archives, which are also identified as “archives”. As internal Archival Units are under the professional guidance and supervision of the state’s archival administrations (Article 7, Regulations on Archives Management Work Within State Organs), this also marks the moment from which the state’s archival administration can exercise its professional responsibility over these records. However, the internal Archival Units are internal units of the records creating organizations and, therefore, under their administrative control (Article 6, Regulations on Archives Management Work Within State Organs). The main responsibilities performed by internal Archival Units include: 1) guiding and supervising the “filing and transferring” of records within the organization; 2) managing all of the organization’s archives [records in North America]28, providing them for use, assisting every aspect of the organization’s work, and accumulating historical materials for the party and the state; and 3) the archival units within central and local organs that are in charge of a certain industry should, in consideration of the organizational structure of the industry, advise, supervise, and inspect the archival work within the industry and of their subsidiaries (Article 4, Regulations on Archives Management Work Within State Organs).                                                  27 In China, a category of records called personnel records (in Chinese 个⼈档案) is identified ever since its creation, which is out of the scope of this dissertation.  28 As discussed above in footnote 24, according to Chinese records and archives management terminologies, when records are transferred to the internal Archival Unit, they are identified as dangan(档案), a term that is often translated to “archives”, which is a term often restricted to records accessioned into archives for permanent preservation in the North American records management field and rarely being used for records preserved in records creating organizations. Therefore, a more accurate translation of this term should be “records”.   16 Organizations29 that have a responsibility to transfer records of enduring value to archives at their respective levels (e.g., central archives, municipal archives, or the local archives) for long-term or permanent preservation will have to transfer these records 10 or 20 years after their creation30. For most private organizations, the internal Archival Unit also functions as an organizational archives to perform permanent preservation of their records in addition to its regular responsibilities.  Records that have been transferred to and preserved in archives are identified as dangan (or its English translation, archives), and archives management functions such as arrangement, indexing, and reference, have to be performed on them. Archives in China are basically equivalent to archival institutions around the world except that archives are responsible for both the long-term and permanent preservation of government records and other records that are of value to the country and the society at large. Archives in China are fully funded by the state and usually are combined with archival administrations31, making them responsible for both the archival preservation work and supervision of archival work within government and other public institutions—as in the case, for instance, of the internal Archival Unit mentioned above.  A centralized and unified system is adopted in Chinese archives administration; archives exist at each level of Chinese government, from the state level down to the                                                 29 Mostly are public organizations, including governments, state-owned enterprises, and mass organizations. And the number of organizations that have responsibility to transfer records of enduring value to the archives decreases as many state-owned enterprises are now converted to private enterprises.    30 According to Article 13 in Measures for the Implementation of the Archives Law of the People’s Republic of China (2017 Revision), for records creating organizations that should transfer their records to archives at the state level, provincial level, or municipality with district level, their records should be transferred 20 years after the creation of the records; for records creating organizations that should transfer their records to archives at county level, their records should be transferred 10 years after the creation of the records.  31  In the most recent institutional reform, the archival administration work and the preservation work has been separated and the archival administration responsibility has been assigned into other organizations, e.g., the Office of the Party (Xu, 2019).    17 provincial/municipal level and the district and county level. Archives at each level receive professional guidance and advice from the State Archives Administration32 and other upper level archival administrations (Article 6, Archives Law of the People’s Republic of China (2016 Revision)); however, they are under political, financial, and procedural administrative control of their respective levels of government and are primarily responsible for the needs and policies of that government. As part of the State Archives Administration’s responsibility to guide and oversee archival work across the country and industries, a wide range of legislations, regulations, guidelines, and standards has been developed. The Archives Law of the People’s Republic of China (2016 Revision)33, which went into effect in 1988 and was amended in 1996 and 2016, is the legislation governing archival work in China. In addition, there are regulations for archival work within the Party, the state, the army, and mass organizations; regulations for scientific and technical archives work; and measures and provisions relating to various aspects of archival work. A list of standards34 has also been developed to provide a source of reference for archival work.                                                 32 According to the State Archives Administration’s website (http://www.saac.gov.cn/xxgk/node_140.htm), the State Archives Administration of the People’s Republic of China is responsible for: 1) overall planning and macro management of archival work across the country; making policies, legislations, and regulations in accordance with the Party’s and state’s policies and legislations; organizing, guiding, inspecting, monitoring, and coordinating the archival work of the Party, the government, the army, mass organization, and provincial, autonomous region, and municipal levels; 2) centrally and uniformly managing the Party’s and the state’s archives, guarding the Party and the state’s confidentiality, maintaining the integrity of archives, and ensuring the safety and security of archives; 3) acquiring, collecting, managing, and preserving the Party’s and the central government’s archives, promoting scientific management and modernization of archival work, compiling and publishing archives to make them available for public use, and collecting archives that were scattered abroad and those that are relevant to China; and  4) making guidelines for the development of the cadre of future archivists, organizing professional education and training, and the professional certification of archivists. 33 Consisting of 26 articles divided into six chapters, the Archives Law stipulates general provisions, archival institutions and their responsibilities, archives management, use and publication of archives, and transgressions that would be prosecuted. 34 Depending on the types of organizations that have approved the standards, there are industry standards approved by the archival administration and national standards approved by the Standardization Administration of the People’s   18 This dissertation, for ease of understanding, will use Anglo-Saxon terminology to describe records in different stages of their life. Therefore, for its purpose, “records” and “documents” will be used interchangeably to identify materials kept in the creating office; the term “records” will be used to identify materials transferred to the internal Archival Units; the term “archives” will be used to identify records accessioned into an archives; the expression “records management” will refer to the combination of records creation and management within the records creating office and the management of records within the internal Archival Unit, even though the internal Archival Unit may also function as a corporate archives; and  “records and archives management” refers to the management of records by the records creating organization and the archives, or the work of internal Archival Unit that has both a records management and a long-term preservation component.  2.2.2 Enterprise Records Management in China35 A review of the reform history of Chinese enterprises36 and the development of enterprise records management in China shows that the two go hand in hand with each other. Three aspects of the development of enterprise records management that are of particular interest are: the changing relationship between enterprise records management and the                                                                                                                                             Republic of China and the General Administration of Quality Supervision, Inspection and Quarantine of the People’s Republic of China. Depending on the levels of organizations that have approved the standards, there are national standards approved by state authorities and local standards approved by local authorities. Depending on whether they are compulsory, there are mandatory standards and optional standards. To give some examples, there are standards related to General Functional Requirements for Electronic Records Management System (GB/T 29194–2012), Requirements for Optical Disk Storage, Filing and Archival Management of CAD Electronic Records (GB/T 17678.1–1999), Specification on Electronic Documents Archiving and Electronic Records Management, the Filing Forms of Administration Archives (GB/T 9705–2008), and Bibliographical Description for Archives (DA/T 18–1999). At the national level, there are 68 industry standards in effect and 12 national standards in effect.   35 This introduction is based on a report published by the Association of Chinese Archivists (i.e.,Zhang et al. (2014)) on the development of Chinese enterprise records management since the foundation of the People’s Republic of China.  36 For a detailed description of enterprise reform in China, please read section 5.2.1.3   19 state archival administration, the establishment of enterprise records management as a corporate function, and the shifting focus of enterprise records management work (Zhang et al., 2014).  As to the relationship between enterprise records management and the state archival administration institutions, the latter’s influence on the former has shifted from administrative control to professional guidance through standards, legislations, and regulations (Zhang et al., 2014). When the People’s Republic of China was founded in 1949, all private industrial enterprises were nationalized by the Chinese government and operated as administrative units (i.e., danwei) of the government (Geng, Yang, & Janus, 2009). As a result, every aspect of the operation of the enterprises has to be controlled by the government; the records management work is not an exception. According to the vertical and horizontal administration system (Tiao kuai jie he), records management work in each enterprise was under both the vertical administration control of the superior ministry (e.g., the Ministry of Transportation) to which it belonged and the horizontal administration control of the archival administration at the relevant level (e.g., state, municipal, city, and local); at that time, the vertical administration control prevailed (Zhang et al., 2014).  With the adoption of a socialist market economy and the accompanying institutional and governance reform in the 1980s, many danwei were converted into private, collectively-owned, or state-owned enterprises that freely participated in the market competition; to align with such economy, the Chinese government also undertook institutional reform, with the objectives of emphasizing macro-management and coordination and law-based   20 governance. As a result, the direct administrative control exercised by the Chinese government over danwei’s records management work was replaced by a supervisory relationship of the state above the newly born enterprises, where the state guides and assists enterprise records management work, and formulates policies, standards, and regulations to create an appropriate legal environment for the autonomous development of enterprise records management work (Zhang et al., 2014).  The establishment of enterprise records management originated from the need to manage the large volume of scientific and technical records and other scientific and technical materials created and collected by danwei in the 1950s (Zhang et al., 2014). At that time, no distinction was made between scientific and technical records and other scientific and technical materials, and different governance frameworks, in terms of the roles and lines of responsibility for the management of scientific and technical records and other materials, were established in different organizations (Zhang et al., 2014). Then, in the 1960s, with the release of a few regulations37 by the State Council and the State Archival Administration which emphasized the management of scientific and technical records and other scientific and technical materials, these were officially differentiated from one another and a scientific and technical records management department was established within many enterprises (Zhang et al., 2014).  The 1980s witnessed the establishment of a comprehensive records management function that centrally managed all types of records created by the enterprises regardless of their content (e.g., administrative records, or scientific and technical records), and the official                                                 37 For instance, Regulations on the Work of State-owned Industrial Enterprises (Draft), Report on Scientific Records Management Work within Industrial Enterprises    21 recognition of the concept of “enterprise records”, which was defined as the totality of records created by the enterprise in the course of its business activities38 (Zhang et al., 2014). This trend continues to this day.  Regarding the shifting focus of enterprise records management work, prior to the 1980s, because of the centrally planned economy, the management of enterprise records and other materials was to comply with state policies and regulations rather than developing on its own; therefore, contributions made by records management work to the business was reactive and unsophisticated (Zhang et al., 2014). After the 1980s, with the application of information technology to the field of records management, records began to be considered as important information resources and assets by the enterprises, and the focus of records management work therefore was shifted to effectively reuse and exploit the content of records to demonstrate the value of records management work to enterprise production and profit-making (Zhang et al., 2014). More recently, with the emergence of the concept of knowledge management and its introduction into the enterprise records management field, enterprise records management is experiencing another paradigm shift from records as information resources and assets to records as knowledge assets (Zhang et al., 2014).                                                  38 Provisional Regulations on Enterprise Records Management at State-Owned Enterprises.    22 2.2.3 Electronic Records Management in China: The Dual Track System and the Dual-Copy System The formulation of the dual track system and dual-copy system is a transitional strategy adopted in the Chinese records and archives management field to temporarily fill the gap between the widespread use of information technology in the conduct of business on the one hand, and legislations, management principles, and methods that lag behind the advancement of information technology and which are needed for the recognition, assessment, maintenance, and long-term preservation of the trustworthiness of electronic records on the other hand (Liu, 2015a). These systems are needed to ensure that the evidentiary capacity of records can be protected and demonstrated so that they can be used to show regulatory and legal compliance and protect the organizations’ interest in legal litigations (Chen, 2018; Tao & Tian, 2014), while the state, lawyers, archivists, and records managers strive to close the legislative, regulatory, and methodological gap.   The dual track system involves using both the paper and digital version of each record in the conduct of business activities (Feng, 2003; Liu, 2011a; Yang, 2014). The degree to which the paper and digital versions participate in the handling of the business matter affects the completeness of documentation as well as their reliability in terms of truly reflecting the business activity producing the records (Li, 2011). For instance, sometimes, the paper and digital versions of a record are created, handled, and used simultaneously and independently in the conduct of the business activity to the point that each action involved in the performance of the business activity has to be undertaken twice: once on each of the two versions; in this way, the two versions of the record are equally reliable in   23 terms of reflecting the business activity. Despite this, because the procedures and techniques used for the creation and handling of these two versions are different, in practice, the use of the dual track system is likely to introduce inconsistencies between the two (Wang, 2008).  More often, the paper and the digital versions of a record are used alternatively and exclusively during a business process: only one version of the record is participating in the business process at any given time (Li, 2011). For example, to respond to a record received in paper format, the organization may scan the paper record, include it into its OA system, draft a response using the OA system, print it out, and present it along with the original incoming paper record to the manager to obtain approval. Once the manager gives approval on the paper record, the relevant officer then scans or inputs the manager’s approval and accompanying comments into the OA system, and sends them to the relevant business department to act upon. In this example, while the paper record bears the manager’s signature, its digital form documents the making of the record and is the one being acted upon and participating in and advancing the business activity, therefore, the digital record should be considered as the one fully documenting the records creation process. The use of the dual track system creates a hybrid office environment, which poses a challenge for the design of records management programs that can keep records trustfully reflecting the business activities from which they result.  With the great advancements in the use of information technology made in recent years at the government and industry level in China (National Development and Reform Commission, 2017; “A survey”, 2017), it was reported that sixty percent of Chinese   24 enterprises have implemented at least one information system and about half of Chinese enterprises have implemented OA system (“A survey”, 2017). The Regulations on the Handling of Records in the Party and Government Organs, issued in 2012 by the General Office of the CPC Central Committee and the General Office of the State Council to promote scientific, regulated, and standardized handling of records, specifies that the term “record” includes digital records (Article 38) and therefore officially recognizes the effectiveness of records in digital form and hence the necessity to manage them in accordance with records management requirements. In addition, the Contract Law of the People’s Republic of China, issued in 1999, recognized the effectiveness of contract in electronic form and the Electronic Signature Law of the People’s Republic of China issued in 2005, recognized the effectiveness of data messages in electronic form in the conduct of business activity.  While this official endorsement of the effectiveness of electronic data will facilitate their use in the conduct of business, for these electronic data to be used as evidence of business activities, principles, methods, policies should be established to guide their authentic maintenance after their creation.  In the Regulations on the Handling of Records in the Party and Government Organs, it was stated that methods for the handling and transmission of digital records would be enacted separately (Article 38). The Interim Measures on the Filing and Transferring of Electronic Records (2018 Revision), a regulation specifically for the filling and transferring of electronic records that have been processed by the Electronic Records Transmission System—a system uniformly deployed by the State’s Office and therefore   25 having standardized format (Article 2), requires that the filing and transferring of electronic records shall take place on the “E-mail system platform within the government’s office resource network” (Article 10), and records creating organization shall configure the audit trails of the electronic records processing system to record automatically the person, time, equipment, item, and content, etc. involved in the real time operation of electronic records to ensure their authenticity (Article 12). But these are essentially for the filing and transferring of public records created by the government.  For the management of electronic records in general, the Interim Measures For the Administration of Electronic Documents specifies the institutions responsible for the lifecycle management of electronic records and their respective responsibilities (Chapter 2), and requirements for the creation and handling (Chapter 3), filing and transferring (Chapter 4), and maintenance and use (Chapter 5) of electronic records. For the creation and handling of electronic records, for instance, it is required that: Article 11 Electronic records, in their creation and handling, shall be in the form of original as prescribed by the state’s legislations and regulations, and meet the following requirements: (1) The electronic records can effectively show the contents contained within them and can be referenced and collected; (2) Electronic records and their metadata can be kept complete and intact, and their source can be identified, and have not been illegally altered; and  (3) Changes to the form of records in their transmission, storage, and manifestation do not affect the authenticity and integrity of their content. The original of confidential records shall comply with the provisions of the confidentiality legislations and regulations of the state.  These requirements recognize the importance of metadata in documenting and demonstrating the integrity of electronic records, changes to the form of electronic   26 records does not necessarily affect their authenticity, and the electronic records have to be intelligible. Yet, it is interesting that the concept of “original” is still in use here and it is not clear what it means and whether there is difference between the original of paper records and electronic ones.  For the maintenance of electronic records, it is required that,  Article 20 The safeguarding of electronic records shall meet the following requirements: (1) An Electronic Records Management System and informational content security and confidentiality framework shall be established in accordance with the national information security level protection standards and the administrative provisions on the graded protection of confidential information system, and strict security and confidentiality measures shall be implemented; (2) The safekeeping and readability of electronic records shall be tested and inspected on a regular basis, and all issues found shall be resolved in a timely manner; (3) If there is any change to the software, hardware, or storage environments of the electronic records, the electronic records shall be migrated and/or converted in a timely manner; (4) Electronic records shall be backed up regularly; (5) Appropriate conditions shall be set in accordance with the requirements for the maintenance environments of different media.  These requirements have addressed the challenges posed by software and hardware upgrade, disaster, network security, and maintenance environments, which are mostly from an IT perspective and focusing on the technological infrastructure. The trustworthiness of electronic records and their verification are not addressed.  Other measures or specifications related to the management of electronic records include, for instance, Specification on Electronic Documents Archiving and Electronic Records   27 Management (GB/T 18894–2016), General Functional Requirements for Electronic Records Management System (GB/T 29194–2012), Standards of Electronic Mail Document Filing and Management (DA/T 32–2005), and Metadata Standard for Administrative Electronic Records (DA/T 46–2009).  Yet, it appears that most of these measures and specifications are targeted at the management of electronic records in the government or public institutions, and it is not clear how widely these measures and specifications are used in the management of electronic records either in the public sector or the private sector and whether reference to the implementation of these measures and specifications in the management of electronic records will increase their admissibility in a court or their use as evidence to prove their business activities to the government.  While the dual track system concerns the use of information technology in carrying out business, the dual-copy system concerns the management of digital records when the business activities in which they participate are completed. More specifically, it refers to the generation of an additional paper or microfilm copy of the digital record and the maintenance of both versions when a digital record is transferred into the internal Archival Units for recordkeeping (Feng, 2003; Tao & Tian, 2014). It is a passive strategy for the management of the large volume of digital records created when there is a lack of mature principles and methods for their reliable and authentic transfer, maintenance, and long-term preservation, and when their admission in court as evidence and their probative force in fact-finding cannot be fully guaranteed.    28 The scope of digital records that has to be maintained in dual copies varies according to different regulations. For instance, in the Specification on Electronic Documents Archiving and Electronic Records Management (GB/T 18894–2002), it was required that, if textual and graphical digital records identified as having long-term preservation value have no paper copies, a paper or microfilm copy has to be generated, and both have to be kept (Article 4.5). In Measures on Filing and Transferring of Records at State-Owned Enterprises, issued in 2004, it was stipulated that, for digital records identified as having permanent or long-term preservation value, a paper copy had to be generated and transferred (Article 21). And, in Interim Measures for the Administration of Electronic Documents, issued in 2009, it was required that for digital records identified as having permanent preservation value or other important value, a paper or microfilm copy has to be generated and transferred (Article 16). Similar requirements are also present in Interim Measures on the Filing and Transferring of Electronic Records (Issued in 2003) and Standards of Electronic Mail Document Filing and Management (DA/T 32-2005). Regardless of the different wording in these regulations, it can be concluded that the dual-copy system is destined to digital records with permanent or long-term preservation value, and therefore, was designed to ensure the long-term authentic preservation of digital records.   A critical issue with the dual-copy system is that the reliability and authenticity of the paper copy generated cannot be guaranteed, considering that the paper version either does not participate in the business activity but is only, at best, an authentic copy of the original digital records, or only partially participates in the business activity and therefore, only documents part of the business activity (Li, 2011; Liu, 2011a; Zhang, 2009). The   29 reliability and authenticity of the paper version of the digital records is complicated due to the use of the dual track system (Li, 2011).    Other drawbacks of the dual-copy systems mentioned include a waste of resources, difficulties in generating the paper or microfilm copy of some digital records, loss of digital records, the co-existence of a paper records management system and an electronic records management system, and the danger of losing the evidentiary capacity of digital records (Feng, 2003; Tao & Tian, 2014).  As a transitional strategy, the dual track system and the dual-copy system were enthusiastically embraced by scholars and practitioners in the Chinese records and archives management field in the early 2000s (Pan, 2003; Peng, 2002; Wang, 2004). However, recently, more and more scholars and practitioners are emphasizing the limitations and drawbacks of these two systems and announcing that it is time that the dual track system and dual-copy system, especially the latter, be reformed to reflect the developments of the past decade in the management and long-term preservation of digital records and to promote China’s digital transition (Chen, 2018; Su & Liu, 2015; Tao & Tian, 2014).  The changing attitude towards the dual-copy system in particular is also reflected in the recent update to state regulations and policies. For instance, when the second edition of the Specification on Electronic Documents Archiving and Electronic Records Management (GB/T 18894–2016) was issued, the dual-copy requirement was removed. And when the revised version of Interim Measures on the Filing and Transferring of Electronic Records (2018 Revision) was published, it was instead required that electronic   30 records satisfying the state’s requirements could be “filed and transferred” only in digital format (Article 7). Further, the Outline of the 13th Five-year Plan for the Development of Archival Undertaking in China (2016-2020) recommends pilot testing the one-track system (i.e., the exclusive use of electronic records in the conduct of business) and the one-copy system (i.e., digital records will be kept and preserved only in digital format with no extra paper or microfilm copies generated) in organizations that are suitable. Soon after the publication of the 13th Five-year Plan, the Shanghai Free Trade Zone Administration Committee issued Guidance on Strengthening Digital Records and Digital Archives Management, which indicates the official adoption of the one-copy system in the Shanghai Free Trade Zone. This marks the first case in China where digital records are officially and legally recognized and exclusively maintained as the evidence of business activities.  In light of this tendency to replace the dual-copy system with a one-copy system, Chinese scholars and practitioners are researching and writing on the conceptual foundation and the implications of the adoption of a one-copy system, and on the factors influencing the shift from the dual-copy system to the one-copy system (e.g., Qian (2017), Shen (2017), Shen (2018), and Sun and Yuan (2018)). In her Master’s thesis on the factors influencing the adoption of the one-copy system, Shen (2018) used an expert survey method to investigate the weight of 24 factors grouped into three categories: external context, records creating organization, and management of digital records; among these 24 factors, the legal admissibility of digital records, relevant regulations and policies, willingness of the manager in the records creating organization to use digital records, level of   31 information technology use, and attitudes of the superior organizations were given the highest weights in ascending order.  2.3 Managing Records as Evidence and Information  2.3.1 Managing Records as Evidence   Keepers of records were in the past accorded very high social status due to their responsibility of “buttressing claims of right, privilege, and jurisdiction” and guarding over “the arsenals of law and administration” (as cited in (Duranti, 1989a), p. 3). Thus, the evidentiary capacity of records, which supports the continuity of the society and guarantees people’s entitlement to properties, rights, and privileges, has been at the core of records management since ancient times. As a result, a fundamental goal of the theory, principles, and methodologies supporting the creation and maintenance of records is to safeguard and demonstrate their reliability and authenticity—their ability to serve as evidence.   Diplomatics, a discipline focusing on “the Wesen [being] and Werden [becoming] of documentation, the analysis of genesis, inner constitution and transmission of documents, and of their relationship with the facts represented in them and with their creators,” originated in the seventeenth century from the need to assess the authenticity of legal documents, and the patrimonial rights embedded in them (Duranti, 1989b, p. 7). It was once considered an auxiliary science of law and was taught in many European faculties of law up until the eighteenth century (MacNeil, 1998). Sir Hilary Jenkinson, one of the most influential archivists in the English-speaking world (Eastwood, 2004), emphasized the evidentiary capacity of records to such an extent that he referred to the “sanctity of   32 evidence” provided by them (Jenkinson, 1948). Jenkinson argued that archivists should not intervene in the creation of records and declared that the primary duties of archivists are their “physical and moral defence” (Jenkinson, 1922).  Electronic records and their widespread use in the conduct of business activities have posed new challenges to records management; among them, there is the protection and verification of the records’ reliability and authenticity (Duranti & MacNeil, 1996). To effectively address this challenge, it is necessary that the records and archives management field collaborate with the legal and law enforcement field so that records managers and archivists are cognizant of the application of the law of evidence and can design appropriate policies, procedures, and methods for the lifecycle management of records, thereby satisfying the legal requirements for evidence. At the same time, legal professionals and scholars can grasp the implications of information technology on compliance with the existing law of evidence and understand the nature and trustworthiness of electronic records so that the law of evidence can be amended to maintain its relevancy and adequacy (Duranti et al., 2010; Sheppard & Duranti, 2010). In consideration of the fact that evidence law in the People’s Republic of China may not be fully developed as in Canada given its short history (Zhang, Feng, & Zhu, 2018), this study will discuss the reforms undertaken within a common law system, the Canadian one, and the Chinese civil law system to accommodate the pervasiveness of digital evidence, in order to demonstrate how the admissibility and weight of digital evidence has been handled in each system and their implications for the management of electronic records within each country.    33 2.3.1.1 Requirements for the Admission of Digital Records as Evidence in Canada As one of the two prevalent legal systems around the world, the common law system is based on the principle of stare decisis et quieta non movere, which means “to abide by precedent and to not disturb the undisturbed”; in other words, a precedent judge’s ruling applies as binding authority to subsequent cases when judges determine the outcome of a legal dispute (Force, 2013, p. 18). The approach which prevails in the common law system to deal with claims in legal proceedings is called the adversary system, in which the court takes on the role of a “neutral umpire,” and the legal proceedings are “viewed as a contest between opposing views,” with the legal representatives of both parties challenging each other’s evidence “by cross-examining their witnesses and seeking to undermine any expert evidence produced by the opposing side” (Le Sueur, 2008, n.p.). The purpose of cross-examination and confrontation is to test the trustworthiness of evidence, as it is presumed these will expose any deficiencies, distortions, or suppressions (MacNeil, 1998).  In the common law system, the rules governing the admission of documentary evidence in general and business records in particular are authentication, best evidence, and exception to the hearsay rule39 (MacNeil, 1998). The authentication of a record submitted as evidence (i.e., the attestation of its identity) and the application of the best evidence rule (i.e., the presentation of the original to support the demonstration of integrity)                                                 39 Much of the information regarding rules governing the admission of business records is sourced from Heather MacNeil’s dissertation: Trusting Records: The Evolution of Legal, Historical, and Diplomatic Methods of Assessing Trustworthiness of Records, from Antiquity to the Digital Age.     34 address the authenticity40 of the record (i.e., the record is what it purports to be and is free from tampering or corruption), while the exception to the hearsay rule deals with the reliability of records (i.e., the trustworthiness of the statement contained within the record) (MacNeil, 1998).  All documents are considered a type of hearsay evidence, which, as defined by McCormick, is “testimony in court, or written evidence, of a statement made out of court” which are “being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out of court asserter” (McCormick, 1972, p. 584). The overarching principles guiding the exception to hearsay rule include a circumstantial probability of trustworthiness and necessity, with the former meaning that “the circumstances in which the statement was made make its probable trustworthiness practically sufficient to those statements tested by cross-examination” (MacNeil, 1998, p. 45), and the latter applied on a case basis (MacNeil, 1998). Business records are considered an exception to hearsay, on the basis of Ewart, Lomer, and Casey’s (1984) argument that it is critical that the proponent of a business record be able to prove that “the circumstances of the document’s creation provide an adequate substitute for the traditional safeguard of cross-examination” (p. 14). Some criteria used in common law system to admit a record according to the business records exception to the hearsay rule include that the record be made: 1) at or near the time of the event of which it depicts; 2) in the ordinary course of duty; 3) by a person having personal knowledge of the matters; 4) by a person who is under a duty to make the record or report; and 5) by a                                                 40 In this dissertation, authenticity of records is considered inclusive of their identity and integrity, and a distinction between these two characteristics of records will only be made where necessary.    35 person who has no motive to misrepresent the matters recorded. (Paciocco & Stuesser, 2008, p. 167)  The business records exception to the hearsay rule is also included in statutory law; for instance, under the Canada Evidence Act (R.S.C., 1985, c. C-5)41,  Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding on production of the record. A record being made in “the usual and ordinary course of business” thus delegates the satisfaction of the reliability of the statements in it to the “nature of bureaucracy,” “the mercantile nature of record,” or the systematic and habitual nature of the creation of records in the ordinary course of business (MacNeil, 1998, p. 46, 50, 86).  As mentioned earlier, while the business records exception to the hearsay rule concerns the reliability of records, the authentication and best evidence rule deal with the authenticity of records; more specifically, the purpose of the authentication rule is to establish the identity of the records, while the purpose of the best evidence rule is to establish their integrity (MacNeil, 1998).  The necessity of establishing the identity of records is based on the common sense assumption that “whenever a claim involves any element of personal connection with a physical object, that connection must not be presumed, but shown” (MacNeil, 1998, p. 59). This connection between a person and a record can be established through direct evidence or circumstantial evidence (MacNeil, 1998). Direct evidence for purposes of authentication may include “the identification of the document by the writer, a signatory,                                                 41 Current to August 19, 2018.    36 or an eye-witness to its writing or signing,” while circumstantial evidence may include “handwriting or typewriting identification by a witness who did not see the making or signing of the actual document but who can identify the writing” (Sheppard, 1996, para. 531). Public documents and ancient documents are usually presumed to be authentic (MacNeil, 1998). According to the Canada Evidence Act, section 30(6),  For the purpose of determining whether any provision of this section applies, or for the purpose of determining the probative value, if any, to be given to information contained in any record admitted in evidence under this section, the court may, on production of any record, examine the record, admit any evidence in respect thereof given orally or by affidavit including evidence as to the circumstances in which the information contained in the record was written, recorded, stored or reproduced, and draw any reasonable inference from the form or content of the record.  The common law best evidence rule requires that, wherever possible, the litigants who seek to support their claims with the content of a record must submit the original, which is considered as primary evidence. The underlying rationale for preferring the original of a record is that “the epistemically best evidence” is the “most complete” (MacNeil, 1998, p. 74), and “may contain subtle details that may be missing from the copy and that may be significant in terms of the record’s meaning” thereby “decreasing opportunities for deliberate or inadvertent falsification” (MacNeil, 1998, p. 63).  In statutory law, the Canada Evidence Act (R.S.C., 1985, c. C-5)42 stipulates that “where it is not possible or reasonably practicable” to produce the original, a copy of the record can be produced, accompanied by two documents, “one that is made by a person who states why it is not possible or reasonably practicable to produce the record and one that                                                 42 Current to August 19, 2018.    37 sets out the source from which the copy was made, that attests to the copy’s authenticity and that is made by the person who made the copy”.  Electronic records have raised significant challenges to the rules governing the admissibility of documentary evidence. In Canada, the Uniform Electronic Evidence Act (UEAA), a model statute on electronic evidence, was adopted in 1998 to identify the requirements for establishing the trustworthiness of electronic records introduced as evidence. The UEAA was incorporated into the Canada Evidence Act as sections 31.1-31.8. Believing that medium of the records had no impact on truth of a record’s content, the Uniform Law Conference of Canada (ULCC), a law reform body which aims to harmonize the laws of the provinces and territories of Canada and which developed the UEAA, decided not to modify the business records exception to the hearsay rule, but only the authentication and best evidence rule. As to the authentication rule, Section 31.1 of the Canada Evidence Act states,  Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be.  Arguing that, given the absence of an original, the identity and integrity of electronic records are interwoven and inseparable, Duranti et al. (2010) contended that merely focusing on the authenticity of electronic records was not only “legally incomplete” but may also result in the authenticating of an electronic record of questionable integrity.    38 As to the best evidence rule, the UEAA shifted the focus from the integrity of the record to the integrity of the underlying record-keeping system: Section 31.2(1) of the Canada Evidence Act stipulates, The best evidence rule in respect of an electronic document is satisfied (a) on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored; or (b) if an evidentiary presumption established under section 31.4 applies.43  Duranti et al. (2010) maintained that this shift of focus from the integrity of the record per se to the integrity of the recordkeeping system in which the record is stored has “underestimat[ed] the complexity of electronic records and of the systems producing and containing them” and “weaken[ed] the application of the best evidence rule practically to irrelevancy” (p. 112). Duranti et al. (2010) concluded that the UEAA is not capable of dealing with the complexity of the records created, used, or stored in the digital environment.  Nevertheless, the principle that the integrity of a system guarantees the authenticity of the records stored in it was confirmed in 2017 by the Canadian Government Standard Board 74:32 standard Electronic Records as Documentary Evidence. The standard, first published in 2005, was amended in 2017; its purpose is to “specif[y] principles, methods, and practices for the creation (i.e., making, receipt, and capture) and management of all forms of electronic records (e.g., e-mail, cartographic, audio-visual, textual, multimedia, etc.) to support their admissibility and weight as evidence in legal proceedings”.                                                  43 Section 31.4 outlines the presumptions regarding secure electronic signatures.   39 Therefore, at the moment, for electronic records to be admitted as documentary evidence, the following three criteria have to be met: • authentication,  • integrity of the electronic records system, and  • business records exception to the hearsay rule.  One of the primary responsibilities of records managers and archivists is to manage records in such a way that their evidentiary capacity can be preserved so that they can be used to resolve legal disputes or help the organization to satisfy regulatory requirements. An understanding of the rules governing the admissibility of electronic records will inform the design of policies, requirements, systems, and practices in order to guarantee the trustworthiness of electronic records and increase their probability of serving as evidence.  Stephen Mason (2007), a barrister in England and Wales, supports the implementation of policies and procedures based on standards and best practices, and on documentation of the adherence to these policies and procedures as well as decision-making criteria for building a solid foundation for improving the trustworthiness of electronic records.  The Canada Evidence Act stipulates the consideration of standards used in the management of electronic records in determining the admissibility of electronic records. Section 31.5 states,  For the purpose of determining under any rule of law whether an electronic record is admissible, evidence may be presented in respect of any standard, procedure, usage or practice concerning the manner in which electronic documents are to be   40 recorded or stored, having regard to the type of business, enterprise or endeavor that used, recorded or stored the electronic record and the nature and purpose of the electronic document.  In the commentary to this section in the UEAA, two groups of standards—those issued by the Canadian General Standards Board and those issued by the International Standards Organization (ISO), were identified. The commentary also specifies that this provision does not intend to make compliance with standards obligatory in order to get electronic records admitted, but rather to give some “comfort” to records managers who seek to develop record-making and recordkeeping systems that will produce records which can be admitted into evidence.  Chasse and Gurushanta (2002) maintained that since there was no definitions of the concept of system integrity in the rule governing the admissibility of documentary evidence, reference to standards could help “fill the gap” and provide the necessary “foundation” to prove the “integrity” of the electronic records before the courts had a body of decisions explaining how these concepts were interpreted. The CGSB 74:32 2017 Standard has identified a list of factors, which can be used to infer the integrity of records in electronic system: a. sources: the origin of the data in its electronic records is known; b. contemporaneous recording: the electronic records are made or received or stored within a reasonable time after the events to which they relate, or stored within a reasonable time after they are received; c. routine business data: the data within a record is of a type regularly supplied to the originating organization, or created by it during its regular activities; d. data entry: the data entry procedures are part of the usual and ordinary course of business of the organization, and are carried out in compliance with the RM manual and IT system management guide; e. standards: the organization complies with applicable electronic records management standards;   41 f. decision making: the organization, when making decisions, relies upon the electronic records in its electronic records system; g. software: the organization’s software reliably operates the electronic records system and processes its data; h. system changes: a record of record system changes and alterations is kept; i. privacy: the use of the data in the organization’s electronic records complies with the relevant Canadian, provincial and territorial privacy statutes governing the collection, use or disclosure of personal information, confidential commercial information, trade secrets, privileges or other confidential information; and  j. security: security procedures, such as protection against unauthorized access and disaster recovery plans, are used to guarantee the integrity of the electronic records system. Yet it is cautioned that reference to standards should not be considered as a guarantee that electronic records would be admitted; the ultimate decision rests solely with the court (Fisher, 2004; Duranti et al., 2010).  The 2017 version of the CGSB 74:32 standard also contains an information section on cloud computing, which describes its meaning as well as the benefits and risks brought about by the use of cloud services. Then, after briefly discussing the implications of the use of cloud computing for the integrity of records, the standard declares that “[a]dmissibility of records held in a cloud environment is possible if the contract with the CSP [Cloud Service Provider] includes clauses that allow access to the identity and recordkeeping metadata…and the ability to verify the integrity of the system” (p. 32). Despite this recommendation on the reference to standards to support the admissibility of electronic records in court, judicial practices does not provide positive evidence on the reference to standards in proving, in particular, the reliability of business records. For instance, in his doctoral research, one of the questions that Donald Force (2013) explored was on what grounds Canadian lawyers and judges based their assessment of   42 documentary evidence as meeting the business records exception to the hearsay rule; more specifically, he asked whether the adoption of a recordkeeping standard was one of the grounds for admission as evidence. After reviewing Canadian legal literature and Canadian case law, Force (2013) concluded that the two salient methods used by counsel when demonstrating that a record is reliable are “1) witness testimony, either in person or by affidavit, by a person familiar with the record at issue or the process that created the record; and 2) the use of recordkeeping documentation such as policies, procedures, and standards that help counsel to illustrate the circumstantial guarantee of trustworthiness of the record” (p. 173). Moreover, Force (2013) found that recordkeeping standards were not referred to in support of the reliability of the records. The possible explanation for this is that, while witness testimony and/or recordkeeping documentation can “offer more precise information about the circumstances that led to the creation and use of a particular record,” a standard may only be able to “justify why the organization created particular recordkeeping policies or adhered to specific records management practices” (Force, 2013, p. 174).  2.3.1.2 Requirements for the Admission of Paper and Digital Records as Evidence in China44  Pursuant to Article 48 of the Criminal Procedure Law of the People’s Republic of China (2012 Amendment) (The Criminal Procedure Law), all materials that may be used to                                                 44  It is important to note that what are described and discussed in this section are based on legal literature and existing laws, legislations, interpretations, and other legal document. Therefore, how the admission of paper and digital records is determined in cases is out of the scope of this dissertation.    43 prove the facts of a case are considered as evidence45. Further, the three major procedural laws46 identify and enumerate the types of evidence47 that can be used in litigations.  However, whereas in the common law world, both the paper and digital form of records are considered as documentary evidence, in China, paper records are identified as documentary evidence and digital records are identified as electronic data48 evidence.  Prior to the addition of electronic data as one type of evidence in the three major procedural laws—thus, legally recognizing its evidentiary capacity, there were numerous discussions in the Chinese legal field regarding whether digital evidence should be subsumed under documentary evidence or audio-visual recordings, or identified as one independent type of evidence (some examples of these discussions include He (2009), Zhou (2010), and Liu and Qu (2010)). The identification of the type should be grounded in a thorough understanding of the nature and characteristics of electronic evidence, as this will have significant implications on the rules governing its admissibility into legal proceedings and its probative force. However, as will be discussed below, it is important to note that the classification of evidence in the procedural laws in China is not proactive,                                                 45 English translation of Chinese legislations, legal interpretations, regulations, and other legal documents are taken, when available, and refined only when deemed necessary by this author, from the China Law Info database. When no English translation is available, the translation is made by this author.  46 The three major procedural laws refer to the Criminal Procedure Law of the People’s Republic of China, the Civil Procedure Law of the People’s Republic of China, and the Administrative Litigation Law of the People’s Republic of China. 47 The Criminal Procedure Law identifies eight types of evidence, including (1) physical evidence, (2) documentary evidence, (3) witness statement, (4) victim statement, (5) confession and defense of a criminal suspect or defendant, (6) expert opinion, (7) transcripts of crime scene investigation, examination, identification, and investigative reenactment, and (8) audio-visual recordings and electronic data. The Civil Procedure Law of the People’s Republic of China identifies eight types of evidence, including (1) statement of a party, (2) documentary evidence, (3) physical evidence, (4) audio-visual recordings, (5) electronic data, (6) witness testimony, (7) expert opinion, and (8) transcripts of survey. The Administrative Litigation Law of the People’s Republic of China identifies eight types of evidence, including (1) documentary evidence, (2) physical evidence, (3) audio and video recordings, (4) electronic data, (5) witness testimony, (6) statement of a party, (7) opinion of a forensic identification or evaluation expert, and (8) survey transcripts and on-site disposition transcripts.  48 The Chinese original is 电⼦数据. Its English translation i.e., electronic data, was taken from the China Law Info database.    44 rationale-based as the classification of evidence in common law world, though Chinese legal scholars and practitioners have been striving to rectify this problem and promote the development of rules to govern the admission of different types of evidence (Lin, 2015). The de facto separation of the paper and digital records as two different categories of evidence in procedural laws may create some serious obstacles for protecting and demonstrating the evidentiary capacity of digital records and cause incongruity in the management of paper and digital records in organizations.  While classifying evidence into categories is not unique to China—for instance, in the common law world, evidence is usually identified as testimony, exhibits, or documentary evidence—China is one of only two countries 49 in the world that identify types of evidence in its legislation (Lin, 2015). It is commonly asserted by Chinese legal scholars that the intent for listing types of evidence in legislation is to prevent the admissibility into litigation of evidence that does not conform to the law (Lin, 2015); in other words, as Chinese law textbooks often state, the specification of types of evidence in procedural laws has legal force in that only evidence that belongs into one of the types listed can be used as evidence in litigation, so that evidence that has no evidentiary capacity can be excluded (Bian, 2002, p. 51). Scholars who maintain this position often argue that classification of evidence can facilitate the examination of evidence on the basis of rules defined for the admissibility of different types of evidence. However, judicial practices show that, rather than a rationale-based legal decision, the classification of evidence in procedural laws is but a product of the investigation-centered                                                 49 The other country is Russia.    45 criminal procedural mode50 and files-centered (i.e., case file centered) judgment mode51 (Lin, 2015). In the case file, almost all types of evidence, including but not limited to enquiry records, interrogation records, examination records, and search records, have been converted into written form. It is argued that to distinguish and facilitate the presentation of different types of evidence in a case file in written form, it is necessary to identify these types in the procedural laws (Lin, 2015). Therefore, the purpose for identifying evidence types in procedural laws is to justify the evidentiary capacity of evidences collected and used in fact-finding in the investigation conducted by the public security bureau and presented in the case files in written form (Lin, 2015).  This is why the types of evidence listed in procedural laws conform to the steps involved in the investigation procedure specified in criminal procedural law, such as interrogation of criminal suspects, interviewing witnesses, crime scene investigation and examination, search, seizure and impounding of physical evidence and documentary evidence, forensic identification and evaluation, and technical investigation (Lin, 2015). This is also why the types of evidence listed in the procedural laws are not consistent with those in the common law world and have serious issues if examined from the standard of a good classification, such as inconsistency of the criteria used for the classification, and classes                                                 50 Jiahong (2013) compares the procedural relationships among the public security bureau, the people’s procuratorate, and the people’s court—the three Chinese juridical institutions—in the handling of a case to those among the production, sale and consumption of products in that the three legal bodies divide the work and cooperate with each other to make sure that the criminal cases are handled properly and social justice can be achieved (i.e., a satisfactory product can be delivered). However, currently, the problem with the cooperation among the three bodies is that it is in the seller’s market in that the consumption body (the people’s court) has to sell and the consumers have to consume whatever products produced by the production body (the public security bureau). As a result, the investigation performed by the public security bureau drives and determines the results of the case, and the people’s court’s function is but to a formality.  51 Partly due to the investigation-centered procedural mode, the criminal trial process in China is basically reduced to a “perfunctory ritual” in that “the judge’s conclusion is reached through reviewing the whole records of the case before or after the trail, not according to hearing quote, query and attestation of the evidence at the trial” (Jiahong, 2013, p. 160).    46 that are not exclusive with respect to each other.  This also explains the lack of rules in procedural laws for the admissibility of the different types of evidence identified. 2.3.1.2.1 A Brief Review of the Chinese Legal System52 As early as the Chinese Western Zhou dynasty (1046-771 BC), a method called “Five-Listening”53 had been established to determine if the statement made by a witness or a defendant in a trial is true or false (Zhang & Walton, 2010). However, the official evidence law did not come into being until the late 1800s and early 1900s by translating laws from other countries, e.g., Germany, Japan (Zhang & Walton, 2010). Therefore, the Chinese evidence system was deeply influenced by the law-making tradition of Japan and the Continental Europe Legal System from the beginning (Zhang & Walton, 2010).  With the founding of the People’s Republic of China in 1949, the legal system established in the Republic of China was abandoned, and for political reasons the Soviet Union became the new model for China to learn from. Under the influence of the Soviet Union, the Chinese evidence law system established, among others, the following principles and procedures: a confession provides sufficient evidence for conviction; facts at issue must be established beyond all doubt; and the “super-inquisitorial mode”54 is the basis for juridical procedure. During the Cultural Revolution (1966-1976), the legal system, along with the evidence system, in China completely collapsed, and legal                                                 52 This introduction of the Chinese legal system has drawn heavily on a comparison made by Zhang and Walton (2010) between the Chinese evidence system and the Anglo-American law system. Nanning Zhang, one of the two co-authors of this paper, is a prominent and highly qualified lawyer and expert in the field of Chinese evidence law. 53 Five-listening refers to observing a witness or defendant’s words, observing his facial expressions, observing his breathing, observing his listening, and observing the expression in his eye.  54 According to Zhang and Walton (2010), under the super-inquisitorial mode, “the courts were responsible for finding the truth, the burden of proof on parties was not emphasized and the submissions of the parties did not place any constraint on the judge’s decision making” (p. 105).    47 research was suspended. It was only after the end of the Cultural Revolution in 1978 that the legal system was rebuilt. Since then, China’s legal system in general and the evidence system in particular have experienced significant development and ongoing reform in response to the country’s political, social, economic, and technological development (Zhang et al., 2018).  The Chinese judicial institutions consist of police stations (i.e., offices of police investigators), that are responsible for factual investigations in criminal cases, procuratorates (i.e., offices of prosecutors), that are responsible for prosecution and investigation, and the courts, that are responsible for adjudicating legal disputes and dispensing civil, criminal, or administrative justice55.  As opposed to the adversarial system, the Chinese legal system is an inquisitorial system, which is the prevailing system in civil law jurisdictions, including the continental Europe and Latin America, and under which  “the court plays an active, authoritative, and interventionist role at all stages of the proceedings, while the parties have only a minor, tentative, and supportive function” (Vogenauer, 2008, n.p.).  The two trial procedures are different in terms of the role of the court, the legal profession, the parties in the proceedings, and the nature of the truth to be sought (Le Sueur, 2008). For instance, while the role of the court in the adversarial system is rather limited in that the court is regarded as a “neutral umpire” to view “a contest between opposing views” (Le Sueur, 2008), and usually does not intervene in the collection of                                                 55 For a discussion of the relationship among the three entities in criminal trial in China in English, please read Jiahong (2013).    48 evidence, in the inquisitorial system, the court has much greater power and is more active in investigating the facts. For instance, the judge in China can investigate and collect evidence either per the parties’ application or when it is deemed necessary by the judge for finding the truth; the aim is “to remedy the deficiency of the competency of parties in collecting evidence and help fact-finders to make factual determination accurately” (Zhang & Walton, 2010, p. 112).  Furthermore, while the admission of evidence in adversarial systems is usually determined by the judge based on rules, the acceptance and rejection of evidence, as well as its probative force and the truth of the case in China, are primarily determined based on the judge’s conscience and rationale (Qi & Zhong, 1998), with rules taking on an auxiliary role. For instance, the Provisions on Several Issues Concerning the Exclusion of Illegal Evidence in Criminal Cases prescribes that,  Article 64. The judges shall verify the evidences according to the legal procedures all-roundly and objectively, shall observe the provisions of law, follow the professional ethics of judges, use logical reasoning and daily life experience to make independent judgments concerning the validity and forcefulness of the evidences, and publicize the reasons and result of judgment. In addition to the principle adopted for examining evidence, the nature of truth that is sought in fact-finding also varies between the inquisitorial system and the adversarial system: namely, the former is an objective truth and the latter a legal truth. The inquisitorial system as associated with the Chinese legal system usually seeks facts at the ontological level and requires that “people involved in judicial activities should make their cognitive facts completely tally with the ontological facts,” viz., the objective truth (Zhang & Walton, 2010, p. 107). The adversarial system usually seeks truth constructed   49 based on the evidence available and what the law describes or admits, viz., the legal truth (Zhang & Walton, 2010).  While the Chinese legal system, particularly in the case of criminal trials, strives for the objective truth in order to punish criminals and enforce state policy, the adversarial system “emphasizes that the outcome could be a good or acceptable one if and only if it comes about through a due process in order to promote the entire social public interest through protecting individual rights” (Zhang & Walton, 2010, p.111). As a result, while the Chinese legal system emphasizes protecting the victim’s rights, and uses every piece of evidence for truth-finding as long as it is relevant to the trial, the Anglo-American justice system places more emphasis on protecting a defendant’s rights (Zhang & Walton, 2010).  Regardless of the differences described above between the adversarial system and the inquisitorial system, it would not be incorrect to state that no one legal system is a pure adversarial system or inquisitorial system, or, as Vogenauer (2008) argued, all legal systems have some form of inquisitorial and adversarial elements. This is the case in China, the contemporary Chinese legal system in general, and its evidence system in particular, has absorbed, and expectedly will continue to absorb, many principles from the Anglo-American law of evidence.  2.3.1.2.2 Requirements for the Admission of Paper Records as Evidence in Civil Cases in China   50 Paper records or records in paper form are identified as a type of documentary evidence in the three procedural laws in China. According to the Provisions on Uniform Evidence in People’s Courts (Proposed Draft for Judicial Interpretation), documentary evidence refers to records that contain content or information regarding the facts in the case in writing, such as words, number, or graphs, and recorded in paper. According to this definition, the meaning of documentary evidence in China is substantially equivalent to that in Canada, which defines it as “recorded information admitted as evidence in legal proceedings”  (CAN/CGSB-72.34-2017, p. 4) except that documentary evidence in China is restricted to documents in paper form, thus excluding those in digital form, which are included in the concept of electronic data.  A review of existing procedural laws and relevant provisions shows that rules governing the admission of paper records as evidence for determining the disputed facts in a case in China include the authenticity rule, the reliability rule, and the best evidence rule, corresponding to the authentication rule, the exception to hearsay rule, and the best evidence rule in common law world.  Under Article 67 of the Civil Procedure Law, “a people’s court shall identify the authenticity and examine and determine the validity of documentary evidence provided by the relevant entities and individuals”. The Civil Procedure Law does not provide further explanation as to what “authenticity” and “validity” refer to in this clause. Yet, Chinese law scholars contend that the purpose of this article is to guarantee the   51 “formalistic authenticity”56 and “material authenticity”57 of the records produced as evidence in court (Liu, 2012).  Different definitions have been provided for formalistic authenticity. For instance, Liu (2012) explains that a record is formalistically authentic if it is created by the person that the party who produces the record in court claims to be the creator of the record; Xiao (2010), on the other hand, defines formalistic authenticity as a quality being possessed by a record whose content is recorded by the claimed creator of the record; furthermore, Shi, Wang, and Shen (2010) explain that formalistic authenticity refers to the authenticity and validity of the creation of the records, namely, to whether the record has been tampered with.  While Shi, et al.’s (2010) definition concisely reveals the essence of this concept, Liu’s (2012) and Xiao’s (2010) definitions uncover two aspects of the creation of records that are likely to be questioned: the creator and the content. These definitions show that examination of the formalistic authenticity of documentary evidence in the Chinese juridical context is equivalent to the examination of the authenticity of records in the common law world and is associated with their identity (i.e., the record is what it purports to be), which is the focus of the authentication rule.  Material authenticity refers to the consistency between what is recorded in the content of the record and the fact to be proven (Liu, 2012). If the content of the record does not reliably reflect what actually happened in respect to the disputed facts in the case, then the record is considered as materially inauthentic. Additionally, in order to comprehensively describe the capacity of the submitted documentary evidence in                                                 56 The Chinese original of this term is 形式真实 57 The Chinese original of this term is 实质真实   52 affirming the disputed fact, some authors add relevance as a dimension of material authenticity and argue that a record is materially authentic if it is relevant to the disputed fact and its content reliably describe what actually happened (Shi, et al., 2010; Xiao, 2010). However, this author believes that relevance refers to the strength of the relationship between the submitted record and the fact to be proven and describes the probative force of the submitted evidence in affirming the disputed fact; therefore, it should not be addressed by the concept of material authenticity. Understood this way, material authenticity is equivalent to the reliability of records (i.e., the trustworthiness of the statement contained within the record), and thus, corresponds to the exception to the hearsay rule in the common law world.  The best evidence rule in the Chinese judicial practice is consistent with the best evidence rule in the common law world in that it concerns the submission of originals of documentary evidence. For instance, Article 70 of the Civil Procedural Law stipulates that, “The originals of documentary evidence shall be submitted. The originals of physical evidence shall be submitted. If it is difficult to submit the originals, replicas, photographs, copies or extracts may be submitted”. This rule is closely related to the previous two rules, as any changes occurring in the copies of records may have impact on the formalistic authenticity and material authenticity of records.  Additionally, Provisions on Several Issues Concerning the Examination and Judgment of Evidence in Death Sentence Cases confirms the employment of these three rules in the examination of documentary evidence, as stated in Article 6 below,  Article 6.  The examination of physical or documentary evidence shall focus on:   53 Whether the physical or documentary evidence is the original object or document, and whether the photos, visual recordings or the reproductions of the physical evidence or the duplicates or photocopies of the documentary evidence are identical with the originals [the best evidence rule]; whether the physical or documentary evidence has been identified [the authentication rule], authenticated [the exception to hearsay rule]; whether the photos, visual recordings or the reproductions of the physical evidence or the duplicates or photocopies of the documentary evidence are made by two persons or more, and whether there is any written explanation and signature of the makers regarding the process of making reproductions and the place where the original object or document is put [the best evidence rule].  While Chinese laws have hinted to the use of these three rules governing the examination of documentary evidence for their admissibility as evidence, the lack of specific criteria and guidelines in legislation and legal cases, and the prevalence of the judge’s conscience and rationale in the examination of the evidence make the application of these rules in judicial practices rather vague and ambiguous (Liu, 2012; Shi et al., 2010; Zhao & Zhao, 2015). For instance, provisions specifically dedicated to the authentication of documentary evidence in Chinese legislations are scant. Furthermore, authenticity of documentary evidence is not treated and examined independently based on a set of specifications, but is inferred from the fact that the documentary evidence is original. As a result, the authentication rule does not enjoy an independent status as its counterpart in the common law world, but is embedded into the best evidence rule. For instance, pursuant to Article 94 of the Provisions on Uniform Evidence in People’s Courts (Proposed Draft for Judicial Interpretation),  Identification refers to creator, collector, keeper, and other witnesses that have personal knowledge of the physical evidence, documentary evidence, and demonstration evidence identity their source and chain of custody, including: (1) whether the evidence is relevant to the facts in the case, and whether it is sufficient to support the adducing party’s claims;   54 (2) whether the evidence is the original object or document;  (3) whether the reproductions of the physical evidence or the duplicates of the documentary evidence are identical with the originals; and  (4) whether the evidence has maintained its original properties and whether it has been tampered with or modified.  This Article identifies three aspects to be focused on when performing identification: relevancy, whether the evidence is original, and whether the reproduction of the evidence is identical to the original. These three aspects should be determined on the basis of the source and chain of custody of the submitted evidence. The recognition of the impact the source and chain of custody of the evidence have on its authenticity is crucial in that it recognizes that the essence of authenticity is about what has happened to the evidence after its creation. Yet, further information is needed to clarify what requirements should the source and chain of custody of the evidence satisfy for it to be considered as authentic.  The best evidence rule concerns the preference for originals of evidence and under what circumstances reproductions of the originals can be submitted as evidence. For instance, under Article 49 of the Some Provisions of the Supreme People’s Court on Evidence in Civil Procedures (2008 Amendment), it is stated that, Article 49. When cross-examining documentary evidence, physical evidence or audio-visual materials, the parties concerned shall be entitled to demand the other party to present the original document or original object with the exception of the following circumstances: (1) It is indeed difficult to present the original document or original object and it is approved by the People’s court to present the reproduction or photocopy thereof; and  (2) The original document or original object no longer exists and evidence shows that the reproduction or photocopy is identical to the original document or object.    55 The Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China clarifies the circumstances that can be considered as “indeed difficult” for the submission of the originals, including: (1) the original documentary evidence is lost, extinguished or damaged; (2) the original is under the control of the opposing party who, despite lawful request, refused to submit it; (3) the original is under the control of another person who is entitled not to submit it; (4) it is inconvenient to submit the original because of excess space or volume; and  (5) the party who bears the burden of proof is unable to obtain the original through applying for investigation and collection to a people’s court and other ways (Article 111). Under the previous stated circumstances, the people’s court shall determine, after consideration of other evidence and the specific circumstances of the case, whether copies of the documentary evidence can be used as evidence to affirm the disputed facts.    Furthermore, per Article 69 of Some Provisions of the Supreme People’s Court on Evidence in Civil Procedures (2008 Amendment), when the copies of the documentary evidence cannot be verified against the originals, they cannot be used independently as the basis for affirming the facts of a case; in other words, they have to be examined together with other evidence to affirm the facts. This means that copies of documentary evidence whose authenticity and reliability cannot be determined can be admitted as evidence but their weight will be affected58.                                                   58 With regard to this, Chinese law scholars have been researching on the concept of and principles for the admission of 瑕疵⽂书, which can be defined as records with defects or bad records; copies, reproductions of records that are not identical to the originals are addressed by this concept, for instance, Xu’s (2008) work.   56 As to the examination of the trustworthiness of statements contained within the record (the exception to hearsay rule), Article 114 of Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China states that,  Article 114.  The matters recorded in the documents, which are created by a state organ or other organizations providing public services, in the conduct of their business activities, shall be presumed to be true, unless otherwise overthrown by sufficient evidence to the contrary. When necessary, a people’s court may request the creating organ or organization to provide explanation on the authenticity of the document.  This article specifies the presumption of reliability of public records created by a state agency and other public organizations. Prior to the enactment of the Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China in 2015, a draft judicial interpretation—Provisions on Uniform Evidence in People’s Courts issued by the Supreme People’s Court, identified a wider scope of documents presumed to be reliable, as stated below, Article 95. The following documents, in the absence of evidence to the contrary, are presumed to be reliable, and thus, do not require collateral evidence for their admissibility.  (1) Documents certified by a notary; (2) Domestic public records created by a state organ or other public organizations in carrying out their responsibility and bearing a stamp and a registration number; public records created in Hong Kong, Macao, and Taiwan should undergo relevant certification process; (3) Foreign public records that have been certified by Chinese embassies abroad or foreign embassies in China;  (4) Books, pamphlets, and other official publications edited and published by state organs and other public organizations; and    57 (5) Newspapers or journals that have been permitted to publish by the state and local press and publication agencies.  However, these documents are all public. The only article that may provide some guidance on the examination of the authenticity and reliability of private records is Article 97 of Provisions on Uniform Evidence in People’s Courts (Proposed Draft Judicial Interpretation), which states: Article 97.  For documentary evidence that need to be identified [i.e., authenticity] or authenticated [i.e., reliability], including but not limited to: (1) written records (including written statements provided by witnesses who cannot testify in court) whose authenticity and reliability when disputed by the opposing party shall be identified and authenticated by their creator, collector, and keeper on the author, source, content, place of maintenance, or its unique content. (2) public records or business records59whose authenticity and reliability when disputed by the opposing party shall be identified and authenticated by their keeper on its being in a status beyond doubt, being kept in a reasonable place, or the operation of the search system and the process of how the records are retrieved from the file or by using certain search methods.  This first part of the Article concerns the creation and maintenance of records, thus, their reliability and authenticity, while the second part concerns the maintenance of records of public records or business records, thus, their authenticity. While this Article provides guideline for the identification and authentication of the disputed records, further specification in terms of what criteria should their author, source, content, place of maintenance satisfy for them to be considered reliable and authentic is needed on the basis of which the creation and management of records can be conducted. Additionally,                                                 59 It is not clear whether the expression “business records” in this Article is equivalent to the concept of business records in the common law world. The Chinese expression for the English “business records” is 业务档案, and no definition is provided for this term throughout the Interpretation. Based on this author’s background on Chinese records and archives management, this expression is not a records and archival management concept as well. The expression 业务 is defined as the main responsibility of a person or an organization (“业务”, n.d.). Therefore, records generated can be of public or private nature.     58 according to this Article, the burden of proof, once disputes arise concerning the reliability and authenticity of the records, falls on the creator, collector, and keeper of the records. Yet, without further specification, the creator, collector, and keeper of the records can be either the party who submits the records as evidence or the opposing party.  The ambiguities in Chinese legislations on the examination of the reliability and authenticity of private records make it especially difficult to admit them into legal proceedings; and the judges usually have to utilize “logical reasoning and daily life experience” to determine the admissibility and probative force of private records (Shi et al., 2010), as prescribed by Article 105 of the Interpretations of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China, Article 105.  A people’s court shall, in accordance with legal procedures, utilize logical reasoning and daily life experience to comprehensively and objectively examine and verify evidence, determine the admissibility of and the probative force of the evidence, and publicize the rationale and results of the judgment.  Additionally, according to the Civil Procedural Law, “A party shall have the burden to provide evidence for its claims” (Article 64).  And while there is disclosure60 in civil litigation in common law world, it was only in 2015 that Interpretations of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China stipulated that a party can, with the assistance of the court, request the opposing party to submit the documentary evidence that is under its control, as stated below,  Article 112.  Where the documentary evidence is under the control of the opposing party, the party who bears the burden of proof may submit a written                                                 60 Disclosure in civil litigation is “the process which enables the parties to discover evidence relevant to the issues between them which is or has been in the control of the other party. It can be crucial in assisting a party in proving or resisting a claim, and also in revealing the strength of the other party’s case” (Fitzpatrick, 2008, n.p.).    59 application requesting the people’s court to order the opposing party to submit it before the expiry of the time limit for adducing evidence.  Where the grounds for the application are tenable, a people’s court shall order the opposing party to submit. The expenses arising from the submission of the documentary evidence shall be borne by the applicant. Where the opposing party refuses to submit without justified reason, a people’s court may determine that the contents of the documentary evidence requested by the applicant are true.  Prior to the introduction of this article in 2015, in civil litigations, a party could only submit documentary evidence that was under its control or under the control of a third party. For documentary evidence adduced that is under its control, it is very easy for the opposing party to dispute their reliability and authenticity. When such disputes arise, the court has to decide whether the burden of proof of the reliability and authenticity of the adduced evidence should fall on the submitting party or the opposing party; judicial practices show that judges are not consistent on this (Xiao, 2010). Either way, the lack of guidance and criteria for proving the authenticity and reliability of documentary evidence will makes it considerably hard to discharge such burden.  This review shows that, while rules governing the admissibility of private records in Chinese civil litigations are suggested by legislations and are equivalent to those in the common law world, the lack of specific guidance on the application of these rules makes it hard to implement them in practice. This is further complicated by the principle of burden of proof and the prevalence of logical reasoning and daily life experience when the judges evaluate the evidence. Chinese law scholars have recognized the issues surrounding the admissibility of private records, and are suggesting distinguishing between public records and private records when designing rules, guidelines, specifications for examining the reliability and authenticity of documentary evidence;   60 however, other than this, there has been no clear specification of how the reliability and authenticity of private records can be determined (Liu & Liu, 2007; Shi et al., 2010; Zhao & Zhao, 2015; Xiao, 2010). 2.3.1.2.3 Requirements for the Admission of Digital Records as Evidence in Civil Cases in China Research on electronic evidence in the Chinese legal field commenced in the 1980s (Long & Pei, 2016), and has been ongoing since. The first legislation relevant to electronic evidence is the Contract Law of the People’s Republic of China, issued in 1999. In Chapter 2, Conclusion of Contracts, the Contract Law stipulates:  Article 10. The parties may use written, oral or other forms in entering into a contract. A contract shall be in written form if the laws or administrative regulations so provide. A contract shall be concluded in written form if the parties so agree.  Article 11. “Written form” refers to a form such as a written contractual agreement, letter, electronic data text (including a telegram, telex, fax, electronic data exchange, and e-mail) that can tangibly express the contents contained therein.  Therefore, an electronic data text (including a telegram, telex, fax, electronic data exchange, and email) is considered one of the effective written forms that a contract can take. The law further stipulates how a contract is considered concluded when it takes the form of electronic data text, how the time limits will be calculated if a telegram is used for an offer, when acceptance of an offer in the form of data-telex becomes effective if notice of acceptance is not required, and other relevant issues. Yet, the purpose of these articles is only to provide recognition of electronic data text as a written form for a contract, hence its effectiveness, and to promote e-commerce; this Contract Law does not   61 specify how an electronic data text “fulfills the legal requirement of originality, retention and admissibility as evidence, amongst other things” (Wang & Wang, 2005, p. 79).  The Electronic Signature Law of the People’s Republic of China, enacted in 2005, is considered the first national e-commerce legislation in China (Wang & Wang, 2005). Amended in 2015, the Electronic Signature Law states that an electronic signature refers to “the data included and attached in data message in electronic form, for the use of identifying the identity of the signatory and showing that the signatory has recognized the contents therein,” and data message refers to “the information created, sent, received or stored by such means as electron, optics, magnetism or similar means” (Article 2).  The Electronic Signature Law further specifies a data message’s legal effect and ability to serve as evidence by providing that “the legal effect of any document using electronic signature and data message as stipulated by the parties shall not be denied only because it takes the form of electronic signature and data message,” (Article 3) and that “no data message may be rejected for being used as evidence only because it is created, sent, received or stored by ways of electron, optics, magnetism, or similar means.” (Article 7) Further, Chapter 2, Data Message provides the requirements that must be met for the data message to be considered original and for the preservation of data messages, and the factors to be considered when examining the truthfulness of any data message as evidence.   The requirements that shall be met by the data message to be considered original as prescribed by the Electronic Signature Law are:   62 (1) Data message that is capable of effectively showing the contents it specifies and may be picked up for reference and use at any time; and  (2) Data message that is capable of unfailingly ensuring that the contents are complete and unaltered from the time when it finally comes into being. But the integrity of the data message will not be influenced by the adding of endorsement in the data message and the alteration of forms during the course of data interchange, storage and display. (Article 5) The content of this Article recognizes that the concept of original cannot be applied to electronic data the same way it is applied to paper records. For electronic records, as long as the content can be effectively shown and demonstrated that it is “complete and unaltered from the time when it finally comes into being”, the electronic data message is considered original. This Article also specifies that “alteration of forms” and “adding of endorsement” will not affect its being an original.  The factors that shall be taken into consideration when making an examination into the truthfulness of any data message as evidence as prescribed by the Electronic Signature Law are: (1) the reliability of the methods for creation, storage or transmission of data message; (2) the reliability of the methods for keeping the integrity of the contents; (3) the reliability of the methods for identifying the addressee; and  (4) other relevant factors. (Article 8) These factors reveal that the truthfulness of any data message is essentially about the reliability of its creation, its identity, and its integrity after the creation. Yet, further specifications or guidance are needed to guide the determination of the reliability of these   63 methods, for instance, what criteria the methods for keeping the integrity of the contents should meet for the records to be considered reliable.  While the enactment of the Contract Law and the Electronic Signature Law endowed electronic data with legal effects, and hence, officially approved the use of electronic data in the conduct of business, it was only with the addition of electronic data as a type of evidence in the three major procedural laws that the ability of electronic data to be used as evidence in litigations was legally recognized. The Criminal Procedure Law of the People’s Republic of China (2012 Amendment) lists electronic data and audio-visual recordings as one category; the Civil Procedure Law of the People’s Republic of China (2017 Revised) lists electronic data as a separate category; and the Administrative Litigation Law of the People’s Republic of China (2017 Revised) lists electronic data as a separate category as well. However, other than recognizing electronic data as one type of evidence to be used, the three procedural laws do not specify rules for electronic data collection, storage, transfer, display, or examination, or the probative force of electronic data in judicial practice. This issue was then addressed by criminal judicial interpretations.   The Provisions on Several Issues Concerning the Examination and Judgment of Evidence in Death Sentences Cases stipulates that  Article 29.  The examination of electronic evidence such as e-mails, electronic data interchanges, online chat logs, blogs, mobile phone text messages, electronic signatures and domain names shall focus on:  (1) whether the magnetic disc, compact disk or any other movable medium which is used to store the electronic evidence has been submitted along with a hardcopy;    64 (2) whether the time and place when the electronic evidence is formed, the object, the producer, the production process, the relevant facilities and other relevant information about the evidence have been specified;  (3) whether the procedures and steps for the production, storage, transmission, obtainment, collection, and presentation of the electronic evidence are legal, and whether relevant persons involved in the collection of the electronic evidence, including collector, producer, holder, witness, have provide their signatures or stamps;  (4) whether the content of the electronic evidence is authentic, and whether it has been cut, pieced together, distorted, added or otherwise forged or altered; and  (5) whether it is relevant to the facts in the case.  A forensic examination shall be performed if there is any doubt about the electronic evidence. The authenticity and relevance of electronic evidence shall be examined in combination with other evidence of the case.  As interpreted by Liu (2011b), this article identifies the use of the following rules in the examination of electronic evidence: (1) a hardcopy of the electronic evidence has to be submitted together with the electronic evidence; (2) relevancy; (3) authenticity; (4) the use of forensic examination when there is doubt about the electronic evidence; and (5) the examination of electronic evidence should be performed in combination with other evidence.  The Provisions on Several Issues Concerning the Collection, Taking, Examination, and Judgment of Electronic Data in the Handling of Criminal Cases, issued in 2016, is an interpretation jointly given by the Supreme People’s Court, the Supreme People’s Procuratorate, and the Ministry of Public Security that specifically deals with electronic data. It outlines the collection and taking, transfer and display, and examination and evaluation of electronic evidence in criminal cases. In this document, electronic data is defined as “data that is formed in the process of case occurrence, stored, processed, and   65 transmitted in digital form, and can prove the case facts” (Article 1). For the collection and seizure of electronic data, three methods are provided with decreasing degrees of preference: seizing the original storage medium; fixing the evidence by printing, picture-taking, or video-recording; and freezing the data. The primary goal guiding the collection and taking, transfer and display of electronic data is to ensure and demonstrate their integrity in the process. The examination and judgment of electronic data shall focus on its authenticity, legality, and relevance (Article 2). Furthermore, the Provisions specifies that, when examining whether electronic data is authentic, the following factors shall be given priority:  (1) whether the original storage medium is transferred; when the original storage medium fails to be sealed up or is inconvenient to be moved, whether there is any explanation of the reasons and whether such information as the process of collection and taking, the place for storing the original storage medium, and the source of electronic data is indicated; (2) whether electronic data has such special identifiers as digital signature and digital certificate; (3) whether the process of collecting or taking electronic data may be reappeared; (4) whether an explanation is attached where electronic data is added, deleted, or modified; (5) whether the integrity of electronic data can be guaranteed. (Article 22)   And the protection of the integrity of the electronic data shall be verified by examining the methods used for the protection of the electronic data’s integrity: (1) examining the seizure or sealing-up status of the original storage medium; (2) examining the process of collecting or taking electronic data and checking the video records;  (3) comparing the Integrity Check Value of electronic data;   66 (4) comparing the electronic data with the backup; (5) examining the access and operation logs after the freeze; and  (6) any other methods. (Article 23)   These two juridical interpretations provide guidelines for the collection, transfer, display, and examination of electronic evidence in criminal cases. Since it is investigation officials who carry out the collection of evidence in Chinese criminal cases, it is presumed that as long as the integrity of the electronic data during its collection, transfer, and presentation—hence, authenticity—can be protected, the electronic data will be admitted in court as evidence. Therefore, the examination of electronic evidence mostly focuses on its relevance, legality, and authenticity.  In comparison with criminal cases, the admission and the examination of electronic evidence in civil cases are more complicated and face more challenges. Chinese judicial practice shows that electronic evidence is less often used in civil cases than in criminal cases (Liu, 2015c), to the extent that electronic evidence is basically marginalized in civil cases and stands in an “awkward position”(Ji & Niu, 2016; Liu, 2015c; Wang & Fan, 2018). Part of the reason is the principle of the burden of proof, prescribing that a party shall have the burden to provide evidence for its claims (Article 64) according to the procedural law of civil cases, and that, without a disclosure process in civil cases, the plaintiff or defendant can only submit electronic evidence that the party or a third party has maintained or controlled. However, according to the interpretation of the civil procedural law adopted in 2015, it is possible for one party to request the court to order the other party to provide documentary evidence under its control (Article 112). This Article has restricted the applicability of this procedure to documentary evidence; thus, it   67 is not clear whether it is not applicable to electronic data, which is a separate type of evidence. Owing to the fact that electronic evidence is easy to corrupt and the party has motive to do so in order to support its claims, the authenticity of electronic evidence submitted by the party to support its claims is hard to verify, and therefore is often denied admission.61 In some cases, even when the electronic evidence submitted by the party itself is admitted, its probative force is very weak in determining the facts of the case. Another reason that causes the limited use of electronic evidence in civil cases is that the rules for the admission of electronic evidence have not been fully established yet (Ji & Niu, 2016; Long & Pei, 2016; Mo, 2016), and Chinese law scholars and practitioners are still exploring the applicability and relevance of rules for the admission of traditional evidence for electronic data and what should be the rules for the admission of electronic evidence. Considering the short history of the modern Chinese evidence system and that most of the laws are imported from other countries, the existing Chinese evidence system does not provide a solid foundation for the Chinese law scholars and practitioners to build on and adapt to the challenges brought by information technology. In the China-Canada Seminar on Evidence & the First Roundtable Meeting of China-Canada Supreme Courts                                                 61 For instance, in Shanghai Liuhua Machinery & Equipment Co., Ltd. Versus Jetford International Trading (Shanghai) Co., Ltd. (Case No. (2014) Pu-Min-Er (Shang)-Chu-Zi No. 1290), on disputes regarding contracts, the plaintiff submitted emails between the two parties. The defendant did not provide evidence to deny the emails, but argued that since these emails had been kept by the plaintiff itself, their contents could have been altered and therefore the authenticity of the emails could not be verified. The court stated that emails belonged to the category of electronic data. Electronic data is easily forged and/or altered with no traces left. The authenticity of electronic evidence should be verified in accordance with the following considerations (and determined in combination with other evidence): the identity of the sender and recipient of the emails; whether there is a possibility that the content of the emails may be altered; and whether the collection of emails is legal. Firstly, though the plaintiff argued that the sender and recipient of the emails were current employees of the two parties, it did not provide relevant evidence to prove this, and the defendant denied that the recipient was its employee, so the court could not determine the identity of the sender and recipient of the emails. Secondly, the court arranged for the two parties to demonstrate the collection of the emails; though the two parties had no disputes concerning the collection process, they confirmed that the emails were not originals, but rather had been forwarded by a former employee of the plaintiff to its manager prior to his resignation. Therefore, there was a possibility that the content of the emails had been altered during forwarding. Furthermore, the plaintiff could not provide other evidence to prove the authenticity of the emails. Therefore, the court could not establish the authenticity of the emails, nor the facts revealed by the emails.    68 held in Beijing in 2006, Shen Deyong, the then Executive Vice-President of the Supreme People’s Court in China, commented that  The lack of cohesion and logic between different provisions and judicial interpretation of provisions has, to a certain extent, led to the chaos in the use of rules of evidence during judicial practices, such as, witnesses do not attend court, repeated examination of evidence, and no legislation to guide the use of digital evidence. Reform and modernization of the evidence system becomes an important and urgent task in the Chinese legal reform. (⾸席⼤法官, 2006, n.p.) Nevertheless, electronic evidence has provided a tremendous opportunity for Chinese law scholars to clear up “the chaos in the use of rules of evidence” and finally modernize the evidence system. Recent research conducted in the Chinese law field, as will be discussed below, shows that this is actually happening.  Due to the lack of rules and principles to guide the examination and determination of the reliability and authenticity of the electronic data submitted as evidence in court, the parties have to use other approaches to circumvent the necessity to prove the reliability and authenticity of the electronic data submitted as evidence in civil cases. These approaches include: printing out the digital evidence and submitting the paper printout instead; applying to a notary or copyright society for collecting and preserving the digital evidence; applying to the court for collecting and preserving the digital evidence; and entrusting digital evidence to a third party (Liu, 2015c; Ni, 2016; Wang & Fan, 2018).   As to printing out the digital evidence, this is often used when requested by the court when the electronic data is in the form of documents, e.g., emails, instant messages, digital photos, or the snapshot of the act (e.g., copyright infringement resulting from the opposing party making video available online without permission) (Liu, 2015c). By   69 printing out the electronic data, its content will be frozen; therefore, this is a way to make sure that no change can be made to the evidence in the collection, transfer, and presentation of the evidence, and this is also an alternative way to display the evidence. However, in judicial practice, the opposing party usually would question the authenticity of the printout submitted by the plaintiff, and without further evidence to corroborate the authenticity of the printout, the courts usually deny their admission62. Because of this, the parties usually ask a notary to certify the printout and submit the certification along with the printout.  Digital evidence preservation undertaken by a notary or copyright society upon application of parties, involves collecting and freezing electronic evidence and providing certification of the evidence. This is the most popular approach adopted in judicial practice in the collection of electronic evidence, and the probative force of evidence obtained in this way is relatively high (Qiu, 2018; Wu, 2018). The popularity of notaries for the certification of electronic evidence and the high probative force of the evidence obtained this way is partly due to Article 9 of Some Provisions the Supreme People’s Court on Evidence in Civil Procedures (2008 Amendment), which states that facts that have been proved in a valid notary document do not need to be proved by the parties concerned with additional evidence unless the submitted evidence can be overthrown by                                                 62 For instance, in Liu, Yanjun Versus Zhejiang Taobao Network Co., Ltd (Case No. (2009) Hang-Xi-Shang-Chu-Zi No. 2710), on disputes regarding contracts, the plaintiff submitted a printout of product information page of the sports t-shirt that the plaintiff bought from a seller named “d diao h li” on Taobao to support the claim that the sports t-shirt the plaintiff bought was a fake one rather than as advertised by the seller on Taobao that it was genuine. The product information also include that the seller would accept examination of the product by a retail store, ten-time compensation for one-fake, and the product has participated in consumer protection service, so if the seller did not pay the compensation, Taobao would fulfill the compensation responsibility first. When cross-examining this printout, the defendant disputed its authenticity on the basis that it was a printout, and that the original webpage no longer existed. The court ruled in favor of the defendant maintaining that the plaintiff did not submit evidence to prove the source of the printout, and it did not satisfy the form requirements of evidence; therefore, the court denied its authenticity.    70 evidence to the contrary. Considering the trust attributed to the notary document, it is expected that a notary should provide certification of both the reliability and authenticity of the evidence, namely, the trustworthiness of the statements contained in the evidence and the evidence per se. However, considering the technological characteristics of electronic evidence and the fact—according to the Notary Law of the People’s Republic of China—that the notary only has the right to verify the matter to be certified based on the materials submitted by the applicant and does not have the right to investigate the matter, it is hard to ensure that the matter that is certified is actually trustworthy (Wu, 2018). Added to the complexities inherent in verifying the reliability and authenticity of electronic data are the lack of reliable techniques and methods that can be used by notaries for verifying the electronic data to be certified, and the lack of uniform procedural rules across districts for the preservation and certification of electronic evidence by notaries (Ni, 2016; Wu, 2018). Because of these reasons, the certification provided by the notary of electronic evidence can at the most ensure that electronic evidence was not altered in and after the collection process; it cannot guarantee that the evidence per se is reliable and authentic prior to collection. Therefore, there is a possibility that the notary may be “deceived” (Wang & Fan, 2018).  According to the Civil Procedure Law of the People’s Republic of China, when evidence may be destroyed or difficult to obtain at a later time, a party may, in the course of litigation, apply to the court for evidence preservation, and the court may also take preservation measures on its own initiative (Article 81); the law further specifies that application for evidence preservation can also be submitted prior to the litigation or arbitration. These conditions for evidence preservation are applicable to electronic   71 evidence as well; thus, parties can apply to the court for electronic evidence preservation. The probative force of electronic evidence preserved by the court is higher than that of evidence printed out and certified by a notary or copyright society. However, the issue that the reliability and authenticity of electronic evidence prior to active evidence preservation cannot be established is not resolved with this method either; additionally, the intervention of the judge on evidence preservation might create bias and therefore compromise the litigation process (Wang & Fan, 2018).  In comparison with the above three approaches, maintenance of electronic evidence by a trusted third party appears to be the most promising approach as it resolves the issue of maintaining the trustworthiness of electronic evidence during its whole lifecycle from creation to maintenance, collection, transfer, to presentation, if the third party can start the evidence preservation procedure prior to the creation of the records that may be submitted as evidence. It is asserted that electronic evidence preserved using this method has the highest probative force (Wang & Fan, 2018). Nonetheless, this method is not without its own drawbacks and complications, such as establishing the credibility and capability of the third party in acting as a trusted preservation party, the methods and mechanisms for the uploading of electronic data to the third party’s servers, and the methods for the maintenance of electronic data in the third party’s servers, among others. At the moment, this is one of the most popular approaches used for electronic evidence preservation in China.63                                                  63 For instance, Ancun (安存), an emerging Chinese company focusing on digital evidence preservation, has partnered with China Mobile, China Unicom, China Telecom, Aliyun, China Notary, the National Service Center, the Office of Security Commercial Code Administration (OSCCA), Taobao.com, and other organizations to offer a one-stop solution   72 The above discussion on the approaches most frequently used in the submission of electronic evidence in civil litigations and their drawbacks indicates that the distinction between the reliability and authenticity of electronic evidence and the methods that can be used to protect these qualities have not been fully grasped by the Chinese law field. Yet, recent studies show that Chinese scholars are making progress in examining the meaning of the two concepts of reliability and authenticity, the distinction between them, and the methods that can be used to examine and verify them.  For instance, Liu (2017b) investigated the reliability of electronic evidence when he argued that the issues examined are about the “relevance” of evidence. Nonetheless, by identifying the issues related to relevance, Liu (2017b) provided a new perspective to approach the issues involved. The theoretical foundation of Liu’s ideas is that electronic evidence exists in a virtual space that is comprised of bytes and that investigators can only use certain tools to examine this space as they cannot enter it like they do with a physical space (Liu, 2017a). Accordingly, electronic evidence has the following three characteristics. First, electronic evidence does not exist in isolation but is the product of codes and software that interact with each other based on certain rules; as a result, all electronic evidence is comprised of the following three categories of data: content, data about the creation and maintenance of the content (e.g., creator, format, version, sender, etc.), and data about the trail of the previous two categories of data on the media (e.g.,                                                                                                                                             to the preservation and authentication of digital evidence. So far, they have products for the preservation and authentication of emails and phone calls. Taking phone calls as an example, after users purchase such service, the phone calls they make will simultaneously be recorded and preserved in Aliyun, one of the biggest cloud service providers in China. Later, if there is litigation, users can retrieve these recordings from Ancun, who, upon request, also offers Notary services to prove the integrity and authenticity of the recordings. What is required for such notary services is to provide documents proving that the applicant is the owner of the phone number from which the requested phone calls were made. In the case of emails, the establishment of the relationship between the legal or physical persons and their email address is the first step to set up such services.   73 cache file, directory, hibernation, etc.) (Liu, 2017a). Second, electronic evidence is stable in that it is not possible to make any change without leaving any trails (Liu, 2017a). Third, electronic evidence is multidimensional in that the virtual space should be seen as a site where different pieces of electronic evidence interact with each other to tell the whole story (Liu, 2017a).  On the basis of this understanding of electronic evidence, Liu (2017b) argued that the reliability or, in his words, the “relevance” of electronic evidence is about the correspondence between activities in the virtual space and those in the physical space. It consists of two dimensions: content “relevance” and medium “relevance”, with the former referring to the correspondence between the content of the electronic evidence and the facts in the case; and the latter referring the correspondence of person, activity, object, time, and space involved in the disputed fact between the virtual space and the physical space (Liu, 2017b). Further, Liu (2017b) believes that the implementation of the following policies and practices will facilitate the determination of the reliability, or in Liu’s review “relevance,” of the electronic evidence: (1) records management policies, (2) policies for the management of electronic devices and media, (3) documentation of the evidence collection process, (4) corroboration of electronic evidence by means of other types of evidence, such as documentary evidence, oral testimonies, and (5) digital forensic examination.  The authenticity of electronic evidence is an issue that is better understood in comparison with the concept of reliability; and Chinese law scholars start recognizing that the authenticity of electronic evidence is not equivalent to the authenticity of the statements   74 contained in the evidence, which should be examined for their reliability (Liu, 2018). As discussed above, the approaches that are commonly used in electronic evidence preservation in civil cases and the provisions enacted on the collection, transfer, display, and examination of electronic evidence are essentially methods for the protection of the authenticity of the electronic evidence. Some methods proposed for the examination of the authenticity of electronic evidence include: digital forensic examination, chain of custody examination, and comprehensive examination (Liu, 2017c; Liu, 2018).  Writings from the Chinese records and archives management field on the evidentiary capacity of electronic records emerged in the late 1990s, and increased in recent years with the amendment of the three procedural laws and the enactment of juridical interpretations on the admission of electronic data as evidence. While most of these writings aim to improve the admissibility of electronic records in litigations, they mostly approach this topic from two perspectives: 1) identifying gaps in the law and records and archives management fields that hinder the admissibility of electronic records as evidence in legal proceedings, and proposing improvements to address these gaps (some examples of publications taking this perspective include Cui (2016), Wang (2003), Xiao & Duan (2018), Yu (2000)), and 2) identifying the provisions relevant to records and archives management on the basis of which to develop requirements for the management of electronic records that would improve their admissibility (some examples of publications adopting this perspective include Cai (2015), Li (2017), Zhang (2010), Zhu & Zhang (2017)).     75 Some legal gaps identified by Chinese scholars inhibiting the admissibility of electronic records include deficiencies in existing provisions on the legal effectiveness of electronic records, deficiencies in evidence laws on the rules governing the admission of electronic records, deficiencies in the applicability of the best evidence rule to electronic records, and deficiencies in the rules governing the examination of the authenticity of electronic records (Xiao & Duan, 2018; Wang, 2003; Zhang, 2007). Some records and archives management gaps which inhibit the admissibility of electronic records include lack of a coherent set of regulations which should consist of general requirements, specifications, and standards, to guide the management of electronic records; conflicts in administrative control over the management of electronic records; lack of effective measures over the management of metadata; lack of robust security measures; and lack of layman technologies for the management of electronic records (Cui, 2016; Zhang, 2007; Xiao & Duan, 2018; Yu, 2000). And, Chinese scholars recognize that it is records managers and archivists’ responsibility to guarantee, to the fullest extent and via management measures, the integrity and authenticity of electronic records (Huang, 2000, p. 26).    However, almost all of these writings are opinion pieces. There are no empirical studies on this topic. Besides, rarely64 have Chinese scholars in the records and archives management fields distinguished between civil cases and criminal cases when it came to the difficulties facing the parties submitting electronic records as evidence in court.                                                  64 Two exceptions are Cui’s (2016a) and Yu and Zhang’s (2007) papers. Yet, even though it is highlighted in the title of these two papers that their focus is on admissibility of electronic records in civil cases, their content does not reflect such distinction as there is rarely a discussion on the difference between submitting electronic evidence in civil cases and in criminals cases.       76 Furthermore, few65 of these writings approach the admissibility of electronic records systematically from the point of view of the rules governing their admission. All these gaps in existent writings make the present study necessary and unique.   2.3.2 Managing Records as Information  Where records and information managers have traditionally concentrated on the evidential qualities of records, they are now realizing a greater interest in the informational content of records that can be used for decision making and action… There is no doubt that the newly focused work of RIM professionals has, in many ways, become more central to the core business of organizations as they seek to preserve intellectual property and gain competitive advantage in an increasingly volatile environment. (Emphasis in original) (Myburgh, 2002, p. 37) – Sue Myburgh  While safeguarding the evidentiary capacity of records is the primary responsibility of records and archives managers and is what differentiates them from other information management professionals, an enterprise records management program that is solely justified based on its ability to demonstrate legal and regulatory compliance and protect the organization in legal proceedings is not adequate, as this is essentially “a defensive strategy” (Sprehe, 2005). This “defensive strategy” is usually justified from a risk management decision to prevent the organization from potential dangers resulting from lack of compliance; however “in itself [it] does nothing to further the positive pursuit of the enterprise’s goals and mission” (Sprehe, 2005, p. 299). To avoid overreliance on a “defensive strategy” and demonstrate the usefulness of records for advancing an enterprise’s goals and mission, it is necessary to design and implement policies and                                                 65 A few exceptions are Ding’s (2011b), Huang’s (2000), Zhang’s (2010), Yu & Zhang’s (2007), Wang’s (2003), and Zhu & Zhang’s (2017) papers. However, instead of the best evidence rule, the authentication rule, and the exception to hearsay rule, the rules they examined are relevance, legality, and authenticity.    77 methods for the utilization of the informational content of records to support business operations, decision-making, and strategic planning.  A review of literature in the records and archives management field shows that writings discussing theories, principles, and methods for the utilization of the informational content of records are scarce. In the late 1990s and early 2000s, a body of records management literature emerged that discussed the concepts of “strategic information management” and “knowledge management”, highlighting the role of records as containers of information and the use of this information to achieve a competitive edge. Yet, these discussions gradually waned, particularly after the Enron-Arthur Andersen scandal66 and the enactment of the Public Company Accounting Reform and Investor Protection Act of 2002 (or The Sarbanes-Oxley Act)67, when the records management literature came to be dominated by discussions on risk management and good records management for accountability and transparency. The usefulness of information in the records, though always acknowledged, has rarely been thoroughly researched and discussed.  Referring to the five stages68 that Cornelius Burk and Forest Horton (1988) identified to show the focus of change as information management matures, Myburgh (2002) argued that the focus of records management had moved from the efficient management of the                                                 66 The Enron-Arthur Andersen scandal featured the bankruptcy of Enron, an American energy company, which used Market-to-market accounting, special purpose entities, and poor financial reporting to hide its losses, and the dissolution of Arthur Andersen, an accounting firm to the Enron, which was convicted of obstruction of justice as it instructed its employees to destroy all records relating to the Enron except the basic information.   67 As an Act enacted in wake of the Enron scandal, its goal was to improve corporate accountability and the integrity of the financial and accounting systems of publicly held companies.  68 These five stages are: stage 1 paperwork management; stage 2 management of corporate automated technologies; stage 3 management of corporate information resources; stage 4 business competitor analysis and intelligence; and stage 5 strategic information management.    78 records to the strategic use of the information in the record, which emphasizes the use of information for decision-making and the overall improvement of business performance, and called this trend strategic information management.  Different definitions have been offered of strategic information management; for instance, Dearstyne (2004) defined it as the “imaginative, systematic management and use of information to achieve objectives that are clearly aligned with and contribute to the organization’s objectives” (p. 30). Most definitions are consistent in that they identify the goal of strategic information management as the achievement of organizational objectives; in addition, they all state that, although IT is important to strategic information management, it is information that actually counts.  Strategic information management involves understanding “how and why people search for information,” “how they evaluate that information,” “when they stop looking,” “how they use the information they have found,” and “how information containers or documents can be described and organized so that they can be retrieved effectively” (Myburgh, 2002, p. 42). Adequately performing these tasks requires knowledge of business practice, organizational culture and dynamics, fundamental information management, retrieval theory, and information gathering. In concluding her paper, Myburgh (2002) also noted that, “to some extent…the traditional work of records and information managers is and always has been about strategic information management”; however, in light of the changing societal, educational, and legal issues and the pervasive effects of information technology, records and information managers must adapt in order to survive (p. 43).     79 Two years later, Bruce Dearstyne (2004) wrote another article reiterating the relevancy of strategic information management to the field of records and information management, though the concept per se was still being developed. Yet, after 2004, the concept of strategic information management all but disappeared from the records and information management discourse.  Knowledge management is another concept that might be relevant in exploiting the information in the records. Interest in knowledge management in the field of records and information management surged in the late 1990s and early 2000s, as shown by the many related papers and books published during that period on this topic. This interest however gradually declined after this period, to the point that, in 2004, Kenneth Tombs (2004) declared in the title of his paper that “knowledge management is dead: long live records management.” As a concept, knowledge management has to be examined in order to understand its relationship to records management, even if its incorporation into records management has never actually happened.  Depending on the perspective adopted, knowledge and knowledge management can be defined in different ways. As it regards knowledge, a differentiation between the state of knowing and the body of knowledge can be found in various definitions (Saffady, 2000). In the context of this dissertation, the definition that Davenport and Prusak (1998) proposed in their book will be adopted. It describes knowledge as “a fluid mix of framed experience, values, contextual information, and expert insight that provides a framework for evaluating and incorporating new experiences and information. It originates and is applied in the minds of knowers. In organizations, it often becomes embedded not only in   80 documents or repositories but also in organizational routines, process, practices, and norms” (Davenport & Prusak, 1998, p. 5). Knowledge can further be divided into tacit knowledge and explicit knowledge, with the former referring to knowledge undocumented and embedded in the human mind and the latter referring to knowledge that is codified and documented.  Taking into account its relationship with records management, knowledge management is most frequently defined as “a discipline that promotes an integrated approach to identifying, capturing, evaluating, retrieving, and sharing all of an enterprise’s information assets. These assets may include databases, documents, policies, procedures, and previously un-captured expertise and experience in individual workers” (Harris et al., 1999, p. i).  As to their relationship, knowledge management and records management are regarded as complementary, interrelated, sharing a common purpose in achieving organizational objectives through systematic management of specific information-oriented resources (Duffy, 2000a; Hughes, 2003b; Juma & Mzera, 2017; Saffady, 2000). Hughes (2003b) argued that knowledge management is not a distinct and discrete discipline, and its success relies on it “being at the heart of the business process of an organization and integral to all such processes, including records management” (p. 119). This is primarily because records, as the by-product of business activities, are an important embodiment of an organization’s knowledge (in particular explicit knowledge) and intellectual capital that is accessible and organized (Duranti & Xie, 2012; Phillips, 2000; Saffady, 2000) and   81 can therefore be considered as “a precursor to and a precondition of knowledge” (Saffady, 2000, p. 6).  To facilitate the extraction of knowledge from records, it is critical that records be made accessible or, as Duffy (2000b) observed, examples of knowledge management programs show that knowledge management is inherently about information retrieval. To systematically distill and capitalize on the knowledge inherent in records requires the guidance of a set of principles, standards, methods, and practices; though the knowledge management field is rather vague about the details (Duffy, 2000a), this can be done in the following ways: • understanding what requirements the organization has for knowledge; • decomposing the records and identifying separate information units, such as executive summaries, abstracts, main text, graphics, tables, charts, cross-reference; • indexing the separate information units;  • identifying how the separate information elements relate to each other by accessing similar units in an aggregation of records; • adding an intervention stage to the process of managing records, which has the intention of deriving value from the records, and adding value to future activities by, for instance, retrieving the key nuggets from records, examples of best practices, the prime instances of what the organization does best, etc.; • combining records with other intellectual assets, such as books; and   82 • combining records with tacit knowledge. (Duffy, 2000a; Hughes, 2003a; Hughes, 2003b). If knowledge management and records management are complementary, while a well-implemented records management program will facilitate the extraction of knowledge from records, the success of knowledge management will—in addition to helping the organization to sustain a competitive advantage—demonstrate how organizations can utilize their own records to create knowledge and how records management can add value that goes beyond meeting legislative, regulatory, and administrative requirements (Hughes, 2003a).  Nonetheless, the pursuit of knowledge management by records managers can engender some conflicts as well, especially with “the need to minimize the risks associated with the use of records as evidence” (Duffy, 2000a, p. 64). From a risk management perspective, records will have to be disposed of in an accountable manner (i.e., destroyed or transferred to long-term preservation) once they’ve reached the end of their retention period, so that the information will not be discoverable in future legal proceedings and cause unwanted harm to the organization. However, from a knowledge management perspective, it is vital that records be retained so that information contained in them can be exploited and leveraged. To address this emerging dilemma, the use of records for knowledge management may be an additional factor to be considered when determining the retention period of records.  What implications does the incorporation of knowledge management into records management have for records management professionals? Yakel (2000) maintained that   83 “archivists and records managers have long been knowledge managers” (p. 24), though she did not elaborate further on this assertion. Further, Yakel (2000) stated that to stay relevant in emerging knowledge-creating organizations, records management professionals have to embrace the mission of the organization and the functions that must be supported, understand how and when records are used and could be used, and provide the right information, in the right amount, in the right package, and at the right time.  There are also other forms of relationship that exist between records management and knowledge management. For instance, Duranti and Xie (2012) state that the relationship between knowledge management and records management can be transformative when organizations utilize externalized knowledge in the conduct of business and document this knowledge in the records which are the by-product of the business activity, inclusive when knowledge management activities are considered as one type of business activities and the knowledge products considered as records, reciprocal when knowledge assets are used for the development of records management rules, supportive of the theoretical development,  and essential for the practical implementation of knowledge management.  As discussed in section 2.2.2, the informational use of records has been the main focus of Chinese enterprise records management work ever since its early establishment. More recently, a report on the development of enterprise records management in China published by the Association of Chinese Archivists has declared that a new paradigm is to manage enterprise records and archives as knowledge assets (Zhang et al., 2014). Other Chinese archival scholars shared this view by asserting that knowledge management has become the newest of archival research and will lead the innovation and   84 growth of record and archives management (Ding, 2011a; Xu & Wang, 2004). Yet, writings from the Chinese records management field on knowledge management seem not reflect the strategic importance accorded to it, as most of them are by practitioners and focus on exploring the relationship between knowledge management and records management and the importance and benefits of using knowledge management concepts for the exploitation of the content of records (Some examples include (Liu, 2015b), (Sun & Wang, 2016), (Zhou, 2012)). There is a lack of systematic and robust research studies on this topic.   2.4 Cloud-based Services  2.4.1 Definition and Characteristics of Cloud Computing  The technology that enables the delivery of cloud-based services is cloud computing, which, from a historical view, is the most recent form of computing provision model, following the terminal-mainframe era, the PC era, the network era, the Internet era, and the grid-computing era (Voas & Zhang, 2009).  In the terminal-mainframe era, people used a dumb terminal to connect to the mainframe that was shared by many users and which performed computing (Voas & Zhang, 2009); in the PC era, stand-alone personal computers (PCs) obtained much higher internal capacity such that they could perform basic tasks independently (Voas & Zhang, 2009); in the network era, personal computers (PCs) were connected through a local network, allowing them to share resources (Voas & Zhang, 2009); in the Internet era, local networks were connected to other networks, thereby leading to a global network, which allowed them to get access to resources around the world (Voas & Zhang, 2009); and in the grid-computing era, geographically   85 distributed resources (e.g., cluster systems, data storage facilities) were utilized and aggregated through standardized middleware to deploy computing-intensive applications (Foster, 2002). The capacity of personal computers has been increasing exponentially throughout this evolution. The core technologies underlying and enabling cloud computing include grid computing, virtualization,69 utility computing,70 and autonomic computing71 (Zhang, Cheng, & Boutaba, 2010). Though these technologies are not new, it is their combination that distinguishes cloud computing from any existing distributed computing model (i.e., grid computing), other types of web services, and traditional IT outsourcing.  “Cloud computing was not invented by any one architect—person or company”; rather, it emerged from the infrastructure created by the major web service providers originally for their own core businesses; for instance, Amazon built the cloud provision infrastructure to address the surging demand for computing resources by its online retailing service (Kushida, Murray, & Zysman, 2011, p. 224). As a result, the popular understanding                                                 69 Virtualization is a technology that abstracts away from underlying physical infrastructure, thus making the physical hardware transparent to end users and providing virtualized resources for high-level applications. It allows the “computing power of a single machine to be subdivided into a number of smaller virtual machines by permitting a single piece of hardware to run multiple operating systems or multiple sessions of the same operating system,” enabling end users to share the same machine while at the same time giving the impression that their application is running on a separate, dedicated machine (Yoo, 2011, p. 407). A Virtual Machine (VM), a key technology for virtualization, is “a software implementation of a machine (for example, a computer) that executes programs like a physical machine” (“Virtual machine”, n.d.). In general, there are two types of virtual machines depending on where virtualization occurs: process virtual machines and system virtual machines (Smith & Nair, 2005). As a technology that enhances “software interoperability, system impregnability, and platform versatility” (Smith & Nair, 2005), the Virtual Machine is critical to many characteristics of cloud computing, for instance, the ability to accommodate users’ on-demand needs, elasticity, and scalability.  70 Utility computing refers to the pay-per-use pricing model adopted by cloud computing. This is enabled by the other supporting technologies of cloud computing, such as grid computing, virtualization, and autonomic computing.   71 Autonomic computing enables the computing system to automatically respond to internal and external change without human intervention (Zhang et al., 2010). It is essential to the core services of cloud computing, for instance, discovery and replication, load balancing, and resource management, as discussed in Rimal, Choi, and Lumb (2010).   86 shared today about cloud computing has its roots in the common business challenges that prompted big companies to establish the cloud computing infrastructure.  Depending on where the cloud is hosted and the degree of exclusiveness to the client, there are four deployment models of cloud computing: public cloud72, private cloud73, community cloud74, and hybrid cloud75. As a service-oriented architecture (Vouk, 2008), cloud computing mostly delivers services at the following three different layers: Infrastructure as a Service (IaaS)76, Platform as a Service (PaaS)77, and Software as a Service (SaaS)78. However, a rapidly growing body of functionalities based in the cloud are now highlighting their connection with cloud computing and the characteristics implied by such connection, such as Archiving as a Service79 (Askhoj, Nagamori, &                                                 72 Cloud infrastructure in which services are delivered by a third party cloud service provider over a network and are open for public use. 73 Cloud infrastructure operated solely for a single organization and for its exclusive use; it can be managed internally or by a third party. 74 Cloud infrastructure shared among several organizations from a specific community with common concerns (e.g., security, compliance, jurisdiction, etc.), whether managed internally or by a third party. 75 A composition of two or more clouds (private, community, or public) that remain distinct entities but are bound together. 76 Provision of processing, storage, networks, and other fundamental computing resources where the consumer is able to deploy and run arbitrary software, which can include operating systems and applications. The consumer does not manage or control the underlying cloud infrastructure but has control over operating systems, storage, and deployed applications, and possibly limited control of select networking components (e.g., host firewalls) (Mell & Grance, 2011, p. 3).  77 Provision to the consumer of the capability to deploy onto the cloud infrastructure consumer-created or acquired applications created using programming languages, libraries, services, and tools supported by the provider. The consumer does not manage or control the underlying cloud infrastructure including network, servers, operating systems, or storage, but has control over the deployed applications and possibly configuration settings for the application-hosting environment (Mell & Grance, 2011, pp. 2-3). 78 Also known as cloud-based applications, are applications hosted by a vendor or service provider using cloud infrastructure and made available to customers via a network, typically the Internet. Customers can access the applications through a web browser or a program interface. 79 As per this concept, records and archives management functionalities are offered and consumed as services (Askhoj et al. (2011b), Askhoj et al. (2011a)). The information types described in the OAIS reference model for example (i.e., digital object (bit-sequence), content data object (digital object + representation information), information package, and function) are converted into layered services, with each layer built on services offered in the layers(s) below, and in turn offers services to the layer above, and layers can be abstracted so that when considering the SaaS layer, there is no need to worry about the operation of the layers below it. The concept covers the entire record lifecycle, including the migration and transfer between information management systems; each organization simply needs to choose the required layer of service.     87 Sugimoto (2011b); Askhoj, Sugimoto, & Nagamori (2011a)) and InterPARES Trust80 Preservation as a Service for Trust (PaaST)81 (Thibodeau et al., 2018). Some benefits brought by the use of cloud-based services include the following:  • Scalability. Users can scale up and down the computing capacity they require based on their changing needs so that they don't need to purchase and maintain large numbers of in-house servers, most of which would sit idle for most of the time; •  Ubiquitousness. Users can access the service anywhere anytime as long as they have a portal and Internet service;  • Enhanced security. For users who do not have the resources (e.g., IT staff, hardware, and software) and therefore are not able to deploy and maintain robust and state-of-the-art security measures, the cloud services which are run and maintained by professionals indicate a higher level of security;   • Easy to deploy and maintain. The services can be deployed in a much shorter time frame in comparison with applications developed in-house, which usually require tremendous amount of resources to research, develop, deploy, and maintain; and                                                  80 As the fourth phase of the InterPARES project series which commenced in 1998, the InterPARES Trust project (ITrust 2013-2018) aims to “produce frameworks that will support the development of integrated and consistent local, national, and international networks of policies, procedures, regulations, standards, and legislation concerning digital records entrusted to the Internet, to ensure public trust grounded on evidence of good governance and a persistent digital memory” (InterPARES Trust, 2018); it has conducted many sub-projects specifically focusing on issues relating to records entrusted to the Internet.  81 The PaaST project builds on earlier InterPARES project findings and provides “a comprehensive set of functional and data requirements that support preservation of digital information regardless of the technologies used or who uses them” (Thibodeau et al., 2018, p. 8). The requirements are intended to be technological neutral in that they can be used not only for authentic preservation in the cloud but also in-house preservation or other hybrid contexts. Additionally, the project provides criteria for evaluation and demonstration of the preservation actions.    88 • Low cost82. The reduced cost is usually justified by the fact that users don’t need to pay for the expenses associated with the purchase and maintenance of in-house servers, licenses of software, and IT staff, and instead pay on a use basis (Cunningham, 2016; Cunningham & Wilkins, 2009; Datskovsky, 2016).  2.4.2 Challenges Posed by the Use of Cloud-based Services to Records Management  Not unlike other emerging technologies, the use of cloud-based services raises great legal, operational, and technical concerns for the storage and management of records, which, if not addressed, will threaten “the long-term trustworthiness and sustainability” of the data and records stored in the cloud (NARA, 2010, n.p.).  It is widely acknowledged that the primary cause underlying the records management concerns arising from the use of cloud-based services is that, while the physical custody of data and their control is entrusted to the cloud, the responsibility for the protection, management, retention, and disposition of the data in compliance with legal, regulatory, and operational requirements remains with the organizations (Barnes, 2010; Blair, 2010; Datskovsky, 2016; Ferguson-Boucher & Convery, 2011). As a result, while many of the concerns raised are similar or even identical to those posed when an organization manages the data in its in-house servers, the characteristics of cloud computing and the                                                 82 There are conflicting views concerning whether the use of cloud services will in the long term save money or not. For instance, in their examination of two cases involving cultural institutions using cloud for digital preservation, Oliver and Knight (2015) highlighted that the shift towards digital preservation in the cloud suggested a funding model changed from “capital expenditure (CapEx)” to “operating budget (OpEx)”, which from a long-term preservation perspective, could be much more complicated. Additionally, McLeod and Gormly (2018) found that, while there were models for estimating cloud storage costs, these models were not widely used by archivists and records managers in their decision-making process; moreover, they found that these models were inadequate to estimate the storage cost for long-term and permanent records storage.    89 inexperience and inadequacies of the legal systems in dealing with the emerging technology add an additional layer of complexity (Barnes, 2010; Ferguson-Boucher & Convery, 2011).  Most cloud-based services were designed and implemented without regard for records management principles, and therefore are not able to perform life-cycle management of records in accordance with records management rules (Cunningham, 2016; Cunningham & Wilkins, 2009; Ferguson-Boucher & Convery, 2011; Gatewood, 2009; NARA, 2010; Stuart & Bromage, 2010).  For instance, in a separate study83 in which this author surveyed the use of Software as a Service (SaaS) applications—one type of cloud-based service—by organizations and their influence on business practices and records management, it was found that, despite the fact that SaaS applications we