Legal Considerations of Digital Document Storage and E-Signature

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

• Is it Legal?

• Is it Safe?

• Is it Proven?

Session Agenda

Moving Beyond Wet Signatures and Raised Seals in Court Operations

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?

• Establish the Identity of the Signatory

• Establish the Signatory’s Intention to make a signature

• Establish that the Signatory Adopts the Contents

• Validate official action• Protect consumers

• Provide Solemnity through the Ceremony of signing

Primary Purpose

Secondary Purpose

Tertiary Purpose

• “Too Few Definitions” (Professor Chris Reed)

• History – British and American Statute of Frauds: Evolution from Form to Function

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

• 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

• 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 technologiesNothing 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 – InternationalEuropean 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 SignaturesUS 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 e-signatures 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

• 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

TechnologiesMain 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

Security

• 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

ConclusionMoving 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

EXHIBIT BOOTH 21-22

Session Materials May Be Accessed Athttp://www.imagesoftinc.com/resources.html

Thank You!