The Electronic Signature Issue

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The Electronic Signature Issue
EESSI Open Seminar Electronic Signature
Standardization Paris 11-12 May 2000

• A legal view

jos.dumortier_at_law.kuleuven.ac.be http//www.law.ku
leuven.ac.be/icri
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Once there were ...

• ... only hand-written signatures
• without any legal definition
• conditions are set on a case-by-case basis
• signature doesnt have the same meaning in
  every jurisdiction
• value of a signature depends very often from
  the context
• ...
• ... and no standardization at all

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Unregulated? Not standardized?
How can we work with concepts that are not
defined and not standardized?
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Unregulated? Not standardized?
How can we work with concepts that are not
defined and not standardized?
We simply refer to (common, business,
good, fair, ... ) practices
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But with modern information technology ...

• ... came the need for electronic alternatives
  for hand-written signatures
• and people started to use therefore a technique
  called digital signatures

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... and came specific legislation

• Germany we need to explain in rules how digital
  signatures can be used as a secure alternative
  for hand-written signatures
• Italy from now on, if people use digital
  signatures according to our rules, it will have
  the same value as hand-written signatures

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Result what about Europe?

• what if every Member State starts to develop its
  own rules in this area?
• dont we need to harmonize this?
• lets make a draft directive ...

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Copenhagen Hearing 1998

• legal recognition of digital signatures is not a
  matter of one law but of progressive efforts to
  adapt rules in every area to the digital way of
  processing information
• avoid to stifle innovation by describing a
  priori the only possible electronic alternative
  for hand-written signatures

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Do not confuse
electronic signatures produced with digital
signature tool
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Standards, not legislation

• in 1998 many people asked for standards to launch
  the market
• but many other people said there are already
  too many standards
• lets write down how you can make secure
  electronic signatures
• but only voluntary standards, no binding
  legislation (much too early)

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A European Directive?

• yes, but we will keep it technology-neutral
  (keep open the door for new things)
• our first goal is to keep the internal market
  intact (one single European e-signatures market)
• and we should force the member states to legally
  recognize e-signatures (what they already did,
  but anyway...)

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First goal internal market

• a community framework for electronic signatures
• example ChamberSign
• association of national chambers of commerce
• wants to provide ChamberSign certificate
  services throughout the EU
• impossible without some form of
  standardization(where will they get their
  standard from? probably it will be a higher
  standard than simply qualified)

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What kind of standards ...

• what kind of standards do you need to make
  cross-border e-signature services possible?
• basically you need a European-wide consensus on
  how to make secure electronic signatures(variety
  of models and levels are possible here)
• ... and then hope that the market will follow and
  develop useful applications on the basis of this
  consensus

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But there was a second goal ...

• the European directive wanted also legal
  recognition for e-signatures
• describe how secure e-signatures have to be
  before they can be considered as equivalent to
  hand-written signatures

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Double task for standardization

• achieve a European-wide consensus on how to make
  secure electronic signatures and then hope that
  the market will follow and develop useful
  applications on the basis of this consensus
  (market objective)
• describe from which security level e-signatures
  have always to be considered as equivalent to
  hand-written signatures (legal objective)

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Double task for standardization

• achieve a European-wide consensus on how to make
  secure electronic signatures and then hope that
  the market will follow and develop useful
  applications on the basis of this consensus
  (market objective)
• describe from which security level e-signatures
  have always to be considered as equivalent to
  hand-written signatures (legal objective)

lets hope that the two objectives dont
conflict too much
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The problem is also is it at all possible to
describe an electronic signature that will
beconsidered legal ?
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What is exactly in art. 5.1?

• in relation to electronic data, a qualified
  electronic signature should satisfy the legal
  requirements of a signature ...
• ... in the same manner as a hand-written
  signature satisfies those requirements in
  relation to paper-based data

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More clearly

• if a legal rule says that a paper document needs
  a signature
• and if the legal rule accepts to use an
  electronic document instead of paper
• then, the qualified electronic signature will be
  the signature.

(of course the law can continue to require
paperand refuse electronic documents)
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What makes it so difficult?

• describe the requirements of a signature in a
  paper-based environment
• ... and then transpose them to an electronic
  environment
• but there are so many different situations and
  related requirements for hand-written signatures

(and this will, without any doubt, also be true
for e-signatures)
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Standards in the E-Signature Directive Art. 5.1

• development of detailed technical rules on how
  qualified e-signatures have to be made
• these rules become part of the common legal
  framework (we are transposing the directive)
• this is co-regulation (use standardization
  channels to further develop legal framework)

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Question

• what will be the effective role of qualified
  e-signatures in the laws of the Member States?
• there will be conflicts (and case law) about
  various kinds of e-signatures
• laws will be enacted with various security
  requirements with regard to authentication, etc.

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Recommendations

• the aim of standardization should be to push the
  market forward
• standards should remain voluntary and flexible
• it is probably unwise to integrate standards into
  the legal framework at a very early stage

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EESSI

• will certainly help the Member States to
  transpose the directive correctly from a legal
  point of view
• more important it is part of the overall
  standardization effort in the area of electronic
  signatures (benefits of standardization process
  as such)

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EESSI

• are we working in the right direction?
• perhaps ...
• the market will provide the answer
• can we anticipate this?