Transcript Legal Foundation for Electronic Signatures in Court Records

Legal Considerations of
Digital Document Storage
and E-Signature
Authority for Paving the Last
Mile of the Road to a “Paper on
Demand” Court
Jeffrey N. Barlow, JD, MBA, PMP, Justice Systems Consultant
Session Agenda
Moving Beyond Wet Signatures and Raised
Seals in Court Operations
• Is it Legal?
• Is it Safe?
• Is it Proven?
Is It Legal?
Legal Foundation for
Electronic Signatures
Preface
• “…[I]t is arguable that an electronic
signature qualifies as a signature
without any legislative assistance.”
John Gregory article
• Almost all jurisdictions have enacted
legislation anyway
– To create certainty of acceptance
– Symbolic importance of signatures
What Is A Signature?
• “Too Few Definitions” (Professor Chris Reed)
• History – British and American Statute of Frauds:
Evolution from Form to Function
Primary Purpose
• Establish the Identity of the Signatory
• Establish the Signatory’s Intention to
make a signature
• Establish that the Signatory Adopts
the Contents
Secondary Purpose
• Validate official action
• Protect consumers
Tertiary Purpose
• Provide Solemnity through the
Ceremony of signing
What Is An Electronic Signature?
“Electronic signature" means an
electronic sound, symbol, or process
attached to or logically associated with
a document and executed or adopted
by a person with the intent to sign the
document.
From the Model Laws and their deriviatives
Legal Foundation for
Electronic Signatures
Levels of Authority
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Statutes
Case Law
Regulations/Administrative Rules
Agency/Court Rules
General Orders
Agency/Court Policies
Agency/Court Procedures
Audit Processes
Legal Foundation for
Electronic Signatures
How To Establish the Legal
Foundation
• Start at the top (Constitution, Statutes) and
work down
• Look for disconnects between levels
• For the level at which the disconnect occurs
– Determine what the disconnect is
– Determine who should decide what changes to
the level should be
– Determine what effect making the required
change would have on the lower levels
Legal Foundation for
Electronic Signatures
Overview
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International
European Union
Canada
United States
– Federal/National
– States
Legal Foundation for
Electronic Signatures
International
UNCITRAL Model Law on Electronic
Commerce (MLEC)
Article 5. Legal recognition of data messages
– Information shall not be denied legal effect, validity
or enforceability solely on the grounds that it is in the
form of a data message.
Article 6. Writing
– (1) Where the law requires information to be in
writing, that requirement is met by a data message
if the information contained therein is accessible so
as to be usable for subsequent reference.
Legal Foundation for
Electronic Signatures
International
UNCITRAL Model Law on Electronic Signatures (MLES)
Equal Treatment of Electronic Signature
Article 3. Equal treatment of signature technologies
Nothing in this Law, … shall be applied so as to exclude, restrict or
deprive of legal effect any method of creating an electronic
signature that satisfies the requirements referred to in article 6,
paragraph 1, or otherwise meets the requirements of applicable
law.
Article 6. Compliance with a requirement for a signature
1. Where the law requires a signature of a person, that
requirement is met in relation to a data message if an
electronic signature is used that is as reliable as was
appropriate for the purpose for which the data message was
generated or communicated, in the light of all the
circumstances, including any relevant agreement.
Legal Foundation for
Electronic Signatures
International
UNCITRAL Model Law on Electronic Signatures (MLES)
Reliability of Electronic Signatures
Article 6. Compliance with a requirement for a signature (continued)
3. An electronic signature is considered to be reliable for the
purpose of satisfying the requirement referred to in paragraph 1
if:
(a) The signature creation data are, within the context in which
they are used, linked to the signatory and to no other person;
(b) The signature creation data were, at the time of signing,
under the control of the signatory and of no other person;
(c) Any alteration to the electronic signature, made after the
time of signing, is detectable; and
(d) Where a purpose of the legal requirement for a signature is
to provide assurance as to the integrity of the information to
which it relates, any alteration made to that information after
the time of signing is detectable.
Legal Foundation for
Electronic Signatures
Legislation – International
European Union Directive: Advanced Electronic
Signatures
“Advanced electronic signature" means an
electronic signature which meets the
following requirements:
(a) it is uniquely linked to the signatory;
(b) it is capable of identifying the signatory;
(c) it is created using means that the signatory can maintain
under his sole control; and
(d) it is linked to the data to which it relates in such a manner
that any subsequent change of the data is detectable
Legal Foundation for
Electronic Signatures
US Federal/National
• Legislation
– Uniform Electronic Transactions Act (UETA)
– Electronic Signatures in Global and National
Commerce (E-SIGN) Act
• Standards
– Department of Defense 5015.2 Standard
– FIPS Publication 1863, Specifications for the
Digital Signature Standards
• American Bar Association Digital
Signature Guidelines
Legal Foundation for
Electronic Signatures
Michigan - Legislation
• MCL 450.831-450.849 (UETA)
• MCL 55.287 (Notaries Public)
• MCL 565.232 (Official Seals)
• Records Reproduction Act
Legal Foundation for
Electronic Signatures
Michigan – Administrative and
Court Rules and Standards
• Supreme Court Administrative Orders
– 2007-24: Adopts many federal rules regarding
retention of electrically stored information
– Series of orders permitting pilot programs
• Michigan Court Rules Chapter 8:
Michigan Courts Records and Information
Management Manual
“A court may adopt a computerized, microfilm, or
word-processing system for maintaining records
that substantially complies with MCR 8.119(D).”
Legal Foundation for
Electronic Signatures
Oregon - Legislation
• ORS Chapter 84 (UETA)
• ORS 184.473-477 – Information
Technology Management
• ORS 1.002 – Chief Justice Authority to
Make Rules Regarding Electronic
Documents
• ORS Chapter 192 – Records
Legal Foundation for
Electronic Signatures
Oregon – Administrative and
Court Rules and Standards
• Oregon Administrative Rules 125-600 –
Identity Authentication/Electronic Signatures
• Chief Justice Orders
• Uniform Trial Court Rule 21 – Filing and
Service By Electronic Means
• Oregon Judicial Dept. Record Retention
Rules
• Oregon Community of Practice (CoP) –
Guidelines for Managing Electronic Records
Legal Foundation for
Electronic Signatures
Ohio
• Authentication Standards for the Use of
Electronic Signatures in Electronic
Documents
• Authorizes and sets standards for court rules
to allow e-signatures
• State v. Anderson
• Upholds use of e-signature by judge
• Concurring opinion examines legal efficacy
of e-signatures on court orders
Legal Foundation for
Electronic Signatures
Summary
• E-Signatures are legal and enforceable, even In the
absence of statutory authority
• Legislation, rules, and practices surrounding use of esignatures are uniformly intended to facilitate and
insure the efficacy of e-signatures
• The Model Laws have been so widely adopted, and in
use for so long, that the issue of acceptability is rarely
(maybe never)raised
• Statutory clarifications, rules, court orders, etc. are
often promulgated, even where their main purpose is
to provide additional comfort level rather to overcome
any explicit restrictions
Is It Safe?
Records Management –
Basic Principles
To Be Considered Trustworthy, a Government
Record Must
– Be Authentic
– Be Reliable
– Have Integrity
– Be Useable
MCL 24.402 (Michigan Records Reproduction Act)
Characteristics of Record Authenticity
An Authentic Record Can Be Proven
• To be what it professes to be;
• To have been created or sent by the
person claiming to have sent it; and
• To have been created or sent at that
time
Best Practices for Reproducing Public Records, State
of Michigan Records Management Services
Characteristics of
Record Reliability
A Reliable Record Is One
• Whose contents can be trusted to be
a full and accurate representation of
the transactions, activities, or facts to
which it attests; and
• Which can be depended upon in
the course of subsequent
transactions or activities.
Best Practices for Reproducing Public Records, State of
Michigan Records Management Services
Characteristics of Record Integrity
A Record Has Integrity If It Is
• Complete; and
• Unaltered
Best Practices for Reproducing Public Records,
State of Michigan Records Management
Services
Characteristics of Record
Useability
A Record Is Useable If It Can Be
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Located;
Retrieved;
Presented; and
Interpreted
Best Practices for Reproducing Public Records,
State of Michigan Records Management Services
Relationship of Technology to the
Legal Foundation of E-Signatures
• Today almost all legal frameworks are
technology neutral
• Different technologies have different
tradeoffs in usability, cost, ease of use,
level of security, and features
• The technologies in use today are at the
same time changing and quite mature
• No technology changes the
fundamental purposes of signatures and
seals
Technologies
Main Types
• Password – Something you know
• Keypad – A signing captured electronically
• Digitally Captured – Handwritten signatures
digitized through the writing process
• Public Key Infrastructure – Dealing with a trusted
third party
• Hash Functions – Using information that, because of
the way it is generated, cannot be duplicated or
falsified
• Tokens – A physical object
• Cryptographic - Application of an algorithm
• Biometric – A personal physical characteristic
• Combinations – Use of two or more methods
Signature Security
Something you know (Password)
Something you have (Token)
Something about you (Biometric)
Something about where you are
(Computer)
• Someone you know (Trusted
Guardian)
• Combination
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Security
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Environment
Technology
Policies and Procedures
Operational Responsibility
Audit
How Someone Can
Falsify Your Signature
• Someone has access to your PC; AND
• Knows your password; AND
• If you are using a signature pad, can forge
your signature; and
• If you have a physical token, has your token;
AND
• Knows how to operate the system; AND
• Can control the Workflow so that no one
else becomes suspicious; AND
• Can make sure you do not find out about it
Is It Proven?
Sampling of Courts Using
Judicial Electronic Signatures
• Oregon Circuit Courts
• Maricopa County, Arizona (Phoenix)
• King County Superior Court,
Washington (Seattle)
• Michigan: Washtenaw, Genesee,
Ottawa, Grand Traverse, Tuscola, and
St Clair Counties
• Ohio
Conclusion
Moving Beyond Wet Signatures and Raised
Seals in Court Operations
• It Is Legal!
• It Is Safe!
• It Is Proven!
Bonus: Cost Savings
• E-Signatures reduce the cost of capturing a
signature
– Judges can sign more rapidly
– Signature can be collected from many locations
• Paper reductions and associated costs
• E-Signature is often the last mile to a fully
paper-on-demand court. POD will provide:
– Dramatic staff cost reductions
– Process automation (workflow)
– Public access to and sale of records
Next Steps
• Leverage our experience
– On-site presentation to other stakeholders
– On-site consulting to assist in understanding local
situation
– On-site consulting to assist in drafting court rules
and orders
– RFP development services
• Visit us at boot 21-22 to hear:
– How E-signature has changed the lives of actual
courts
– How workflow automation can help recovery
from budget cuts
Thank You!
EXHIBIT BOOTH 21-22
Session Materials May Be Accessed At
http://www.imagesoftinc.com/resources.html