Burdens of Proof: Cryptographic Culture and Evidence Law in the Age of Electronic Documents

Global Signatures

106 Chapter 5 graphic signatures, but expressed some doubts that “the ordinary tasks of everyday life would accommodate its complexity.”27 Global Signatures The French jurists were not alone in attempting to update their antiquated evidential systems. In the late 1990s, in the span of a few short years, dozens of countries, from Estonia to Tunisia, from Singapore to the United States, adopted laws mandating courts to admit electronic signatures as evidence. Historical precedent suggests that such reform should have proceeded slowly: ancient, often arcane, rules for framing the admissibility and adjudication of written evidence would have to be rewritten; new formulations for long-standing concepts of originals, authentic copies, signatures, and records would have to be devised. However, the explosion of the New Economy in the mid-1990s insured that all over the world, governments lent a much readier ear to calls for adapting their legislation in order to ensure the most favorable environment for the blossoming of e-commerce.28 A broad range of institutions—professional, state, national, international , and supranational—worked at producing the new concepts and strategies needed to foster the legislative adoption of digital signatures. Among others, the United Nations Commission on International Trade Law, the American Bar Association, and the European Union produced policies, guidelines, and legislation, documents extensively shared and discussed among the small of community of experts that worked on the issue. As these institutions attempted to design a workable framework for electronic evidence, the cryptographic signature model offered itself as a particularly comprehensive conceptualization of the issue, complete with extensive mathematical analysis, patents, standards, business models, and working implementations. The question of how to take advantage of the maturity of this particular solution while developing concepts and legislation that would stand the test of time presented itself over and over, as the following brief overview demonstrates. United Nations Commission on International Trade Law The mandate of the United Nations Commission on International Trade Law (UNCITRAL) is the promotion of “the harmonization and unification Written Proof 107 of international commercial law.” In 1996, the Commission’s electronic commerce working group published a Model Law on E-Commerce with the aim of broadly facilitating “the use of modern means of communications and storage of information, such as electronic data interchange (EDI), electronic mail and telecopy, with or without the use of such support as the Internet.”29 Model Laws are meant to serve as “ready-to-enact” legislation , transposable by legislatures in their national context with little modification. The Model Law on E-Commerce introduced several influential concepts and analytical strategies. The most important one is that of nondiscrimination , which states that “information shall not be denied legal effect, validity or enforceability solely on the grounds that it is in the form of a data message.”30 That is, to dismiss electronic evidence, courts must rely on other criteria than its mere electronic nature. The Model Law further proposed that within statutes of evidence law, three requirements typically prevent the realization of the nondiscrimination principle: the obligation to provide information in the form of written document, the obligation to sign such documents, and the obligation to provide originals. To overcome these obstacles, the Model Law suggested the definition of “functional equivalents” to writing, signature, and originals, “based on an analysis of the purposes and functions of the traditional paper-based requirement with a view to determining how those purposes or functions could be fulfilled through electronic-commerce techniques.” For each requirement, the Model Law defined the following functional equivalents: 1. Writing “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.” 2. Signature “(a) The signing method must enable one to identity the signer, and indicate that the signer manifests his consent; (b) the trustworthiness of the signing method must be proportional to the value or object for which the data message was created in the first place” (principle of proportionality). 3. Originals “A data message is considered to be an original if there is (a) a reasonable guarantee as to the integrity of the information from the moment of its creation, and (b) the information can be shown to the person who requires it.”31 108 Chapter 5 The Model Law has been cited as a reference by most electronic signature legislation...