Transcript Paperless Government and the Law

Paperless Government
and the Law
John D. Gregory
Ministry of the Attorney General
June 5, 2009
Overview
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Authority
Legitimacy
Legislation
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Evidence
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Documents
Signatures
Authentication
Standards
Regulation
Paperless Government and the Law
Authority
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The Crown has powers of a natural
person
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Therefore it can use electronic
communications
For greater certainty (and for public
bodies with only statutory powers),
Electronic Commerce Act, 2000
 Special statutes for special uses
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• Electronic registration, filing etc.
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Paperless Government and the Law
Legitimacy
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Besides the general criteria applicable to
public and private sectors - security,
authenticity, efficiency – the state faces
additional demands:
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Protection of personal information
Fair use of e-communications
Access to information
Truthfulness
History (archivability)
Public acceptability (model user)
Paperless Government and the Law
Legislation
Electronic Commerce Act
 Minimalist
 Media-neutral
 Technology neutral
NOTE: ‘legal’ does not mean ‘prudent’
 Security standards required
 Do not need to be better than paper
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Paperless Government and the Law
E-documents
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Equivalent of writing: accessible so as to
be usable for subsequent reference
Provision: that plus can be printed or
stored
Originals: reliable assurance of integrity
(i.e. not changed)
Retention: integrity plus accessibility as
required
Public bodies’ IT requirements
Paperless Government and the Law
Signatures
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Basic function: link between information and
person (legal entity)
Form does not show function
Lots of flexibility (so: prudence?)
ECA: where law requires a signature, esignature will do.
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Some examples
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Allows regulation re reliability – none has
been made (or asked for)
Public bodies’ IT requirements
Faxes, retransmissions, loan applications
Paperless Government and the Law
Signatures - incoming
How do we know who it’s from?
 Abolish signature requirement
 Close the system
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Use proxies
Outsource the signature
 Designate the technology informally
 Designate the standards for particular
programs
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Paperless Government and the Law
Signatures - outgoing
How do you know it’s official?
 Define the problem away
 Designate a secure accessible source
of data (unique identifier)
 Require secure signatures (e.g. PKI)
 Use a secure token of identity
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Paperless Government and the Law
Evidence – the basics
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Admitting documentary evidence:
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authentic – the record is what it purports to
be
best evidence – an original, or an
explanation
not hearsay (a content rule not a form rule)
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reliable and necessary
 business records rule
 statutory records rules
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Ontario Evidence Act, Canada Evidence Act
Paperless Government and the Law
E-Evidence – the basics
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Electronic documents – how does this change?
 Authenticity: basic rule is OK – document
supported by live witness – but e-documents
can be more subject to manipulation .
• May be asked why the witness believes
the record is accurate.
 Original (best evidence): may be
meaningless for electronic document.
Changed by legislation from a record-based
test to a system-based test
 Hearsay: no change in principle – because
content does not change with the medium.
Often “ordinary course of business” test.
Paperless Government and the Law
Evidence – authentication
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To ease admission, the law provides
presumptions that the record-keeping system
has integrity:
 for one’s own computer, OK if one can show
• the computer was working fine all the
time, or
• if it wasn’t, the problem did not affect the
integrity of the record-keeping system
 for a record from an adverse party’s
computer, OK (since the other party knows
more about it)
 for a record from an independent third party,
OK if kept in the ordinary course of business.
Paperless Government and the Law
Evidence – standards
If the presumption is rebutted, so one has to
show the integrity of a record-keeping system:
For the purposes 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 on how
electronic records are to be recorded or stored,
having regard to the type of business or
endeavour that used, recorded or stored the
electronic record and the nature and purpose of
the electronic record. (Evidence Act s.34.1(8))
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Paperless Government and the Law
Evidence – standards
CGSB Standard on Electronic Records as
Documentary Evidence (2005)
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The key rule of the Standard: think about it!
In other words:
 Make a policy about how e-records are managed
 Communicate the policy
 Implement the policy
 Monitor compliance with the policy
 Adjust the policy as required by circumstances
Have a policy manual that you can point to.
Have an audit trail
Have someone responsible (CRO) (+ witness)
Paperless Government and the Law
Regulation
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“The cyberspace is not a no-law land”
• But: where is anything?
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Direct application – finding jurisdiction
Intermediaries
• Financial
• Technological
• Other
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Virtual communities
Codes and standards
• Legal and technical
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Paperless Government and the Law
Conclusion
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Paperless government is not a legal
problem
Need advice on how to comply with legal
framework, but framework is very flexible.
Lots of non-legal challenges
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Prudence
Security
Interoperability
Rest of today’s program …
Paperless Government and the Law
Sources
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”Solving Legal Problems in Electronic Government:
Authority and Authentication” (2002) 1 Can Jl of Law
and Technology No. 1 p. 1
 http://cjlt.dal.ca/vol1_no2/pdfarticles/gregory.pdf
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”Solving Legal Problems in Electronic Government:
Jurisdiction, Regulation, Governance” (2002) 1 Can Jl
of Law and Technology No. 2 p. 1
 http://cjlt.dal.ca/vol1_no3/pdfarticles/gregory.pdf
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Various articles on electronic records and the law
 http://www.euclid.ca
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Paperless Government and the Law