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E L E C T R O N I C   C O M M E R C E :   V E R S I O N  2.0

Congratulations to the Fall 2001 class for an excellent semester. eCommerce will return next year.

 

eContracts IV:  Digital Signatures, Digital Enforcement

 

R E A D I N G S


Part I
Authentication: the State of Digital Signature Legislation



In a world where contracts are consummated over the Internet, how do you formally signify your assent to the terms? Equally importantly, how do you prove that you are who you say you are?

Demonstrating that you "are who you say" is generally know as "authentication". The most common form of authentication, of course, is the signature. Its counterpart in the online context is -- happily -- the "digital signature".

Digital signatures are commercially available today. One developer, Verisign, describes them this way (from http://digitalid.verisign.com/client/help/introSignature.htm):


What is a digital signature?

A digital signature functions for electronic documents like a handwritten signature does for printed documents. The signature is an unforgeable piece of data that asserts that a named person wrote or otherwise agreed to the document to which the signature is attached.

A digital signature actually provides a greater degree of security than a handwritten signature. The recipient of a digitally signed message can verify both that the message originated from the person whose signature is attached and that the message has not been altered either intentionally or accidentally since it was signed. Furthermore, secure digital signatures cannot be repudiated; the signer of a document cannot later disown it by claiming the signature was forged.

In other words, digital signatures enable "authentication" of digital messages, assuring the recipient of a digital message of both the identity of the sender and the integrity of the message.

How is a digital signature used for authentication?

Suppose Alice wants to send a signed message to Bob. She creates a message digest by using a hash function on the message. The message digest serves as a "digital fingerprint" of the message; if any part of the message is modified, the hash function returns a different result. Alice then encrypts the message digest [ ]. This encrypted message digest is the digital signature for the message.

Alice sends both the message and the digital signature to Bob. When Bob receives them, he decrypts the signature [ ], thus revealing the message digest. To verify the message, he then hashes the message with the same hash function Alice used and compares the result to the message digest he received from Alice. If they are exactly equal, Bob can be confident that the message did indeed come from Alice and has not changed since she signed it. If the message digests are not equal, the message either originated elsewhere or was altered after it was signed.

Note that using a digital signature does not encrypt the message itself. If Alice wants to ensure the privacy of the message, she must also encrypt it [ ]. Then only Bob can read the message by decrypting it [ ].

It is not feasible for anyone to either find a message that hashes to a given value or to find two messages that hash to the same value. If either were feasible, an intruder could attach a false message onto Alice's signature. Specific hash functions have been designed to have the property that finding a match is not feasible, and are therefore considered suitable for use in cryptography.






Legislative Activity


On June 30, 2000, President Clinton Signed the "Electronic Signatures in Global and National Commerce Act," the terms of which can be seen below:

ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT
June 30, 2000.

SECTION 1. SHORT

TITLE. This Act may be cited as the ``Electronic Signatures in Global and National Commerce Act''.

TITLE I--
ELECTRONIC RECORDS AND SIGNATURES IN COMMERCE SEC. 101.
GENERAL RULE OF VALIDITY.

(a) In General.--Notwithstanding any statute, regulation, or other rule of law (other than this title and title II), with respect to any transaction in or affecting interstate or foreign commerce-- (1) a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and

(2) a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation.

(b) Preservation of Rights and Obligations.--This title does not--

(1) limit, alter, or otherwise affect any requirement imposed by a statute, regulation, or rule of law relating to the rights and obligations of persons under such statute, regulation, or rule of law other than a requirement that contracts or other records be written, signed, or in nonelectronic form; or

(2) require any person to agree to use or accept electronic records or electronic signatures, other than a governmental agency with respect to a record other than a contract to which it is a party.

(c) Consumer Disclosures.--

(1) Consent to electronic records.--Notwithstanding subsection (a), if a statute, regulation, or other rule of law requires that information relating to a transaction or transactions in or affecting interstate or foreign commerce be provided or made available to a consumer in writing, the use of an electronic record to provide or make available (whichever is required) such information satisfies the requirement that such information be in writing if--

(A) the consumer has affirmatively consented to such use and has not withdrawn such consent;

(B) the consumer, prior to consenting, is provided with a clear and conspicuous statement

(i) informing the consumer of

(I) any right or option of the consumer to have the record provided or made available on paper or in nonelectronic form, and (II) the right of the consumer to withdraw the consent to have the record provided or made available in an electronic form and of any conditions, consequences (which may include termination of the parties' relationship), or fees in the event of such withdrawal; (ii) informing the consumer of whether the consent applies

(I) only to the particular transaction which gave rise to the obligation to provide the record, or

(II) to identified categories of records that may be provided or made available during the course of the parties' relationship; (iii) describing the procedures the consumer must use to withdraw consent as provided in clause (i) and to update information needed to contact the consumer electronically; and (iv) informing the consumer (I) how, after the consent, the consumer may, upon request, obtain a paper copy of an electronic record, and

(II) whether any fee will be charged for such copy;

(C) the consumer-- (i) prior to consenting, is provided with a statement of the hardware and software requirements for access to and retention of the electronic records; and (ii) consents electronically, or confirms his or her consent electronically, in a manner that reasonably demonstrates that the consumer can access information in the electronic form that will be used to provide the information that is the subject of the consent; and

(D) after the consent of a consumer in accordance with subparagraph (A), if a change in the hardware or software requirements needed to access or retain electronic records creates a material risk that the consumer will not be able to access or retain a subsequent electronic record that was the subject of the consent, the person providing the electronic record-- (i) provides the consumer with a statement of

(I) the revised hardware and software requirements for access to and retention of the electronic records, and

(II) the right to withdraw consent without the imposition of any fees for such withdrawal and without the imposition of any condition or consequence that was not disclosed under subparagraph (B)(i); and (ii) again complies with subparagraph (C).

rights.-- (A) Preservation of consumer protections.--Nothing in this title affects the content or timing of any disclosure or other record required to be provided or made available to any consumer under any statute, regulation, or other rule of law. (B) Verification or acknowledgement.--If a law that was enacted prior to this Act expressly requires a record to be provided or made available by a specified method that requires verification or acknowledgment of receipt, the record may be provided or made available electronically only if the method used provides verification or acknowledgment of receipt (whichever is required).

(3) Effect of failure to obtain electronic consent or confirmation of consent.--The legal effectiveness, validity, or enforceability of any contract executed by a consumer shall not be denied solely because of the failure to obtain electronic consent or confirmation of consent by that consumer in accordance with paragraph (1)(C)(ii).

(4) Prospective effect.--Withdrawal of consent by a consumer shall not affect the legal effectiveness, validity, or enforceability of electronic records provided or made available to that consumer in accordance with paragraph (1) prior to implementation of the consumer's withdrawal of consent. A consumer's withdrawal of consent shall be effective within a reasonable period of time after receipt of the withdrawal by the provider of the record. Failure to comply with paragraph (1)(D) may, at the election of the consumer, be treated as a withdrawal of consent for purposes of this paragraph.

(5) Prior consent.--This subsection does not apply to any records that are provided or made available to a consumer who has consented prior to the effective date of this title to receive such records in electronic form as permitted by any statute, regulation, or other rule of law.

(6) Oral communications.--An oral communication or a recording of an oral communication shall not qualify as an electronic record for purposes of this subsection except as otherwise provided under applicable law. (d) Retention of Contracts and Records.--

(1) Accuracy and accessibility.--If a statute, regulation, or other rule of law requires that a contract or other record relating to a transaction in or affecting interstate or foreign commerce be retained, that requirement is met by retaining an electronic record of the information in the contract or other record that--

(A) accurately reflects the information set forth in the contract or other record; and (B) remains accessible to all persons who are entitled to access by statute, regulation, or rule of law, for the period required by such statute, regulation, or rule of law, in a form that is capable of being accurately reproduced for later reference, whether by transmission, printing, or otherwise.

(2) Exception.--A requirement to retain a contract or other record in accordance with paragraph (1) does not apply to any information whose sole purpose is to enable the contract or other record to be sent, communicated, or received.

(3) Originals.--If a statute, regulation, or other rule of law requires a contract or other record relating to a transaction in or affecting interstate or foreign commerce to be provided, available, or retained in its original form, or provides consequences if the contract or other record is not provided, available, or retained in its original form, that statute, regulation, or rule of law is satisfied by an electronic record that complies with paragraph (1).

(4) Checks.--If a statute, regulation, or other rule of law requires the retention of a check, that requirement is satisfied by retention of an electronic record of the information on the front and back of the check in accordance with paragraph (1).

(e) Accuracy and Ability To Retain Contracts and Other Records.--Notwithstanding subsection (a), if a statute, regulation, or other rule of law requires that a contract or other record relating to a transaction in or affecting interstate or foreign commerce be in writing, the legal effect, validity, or enforceability of an electronic record of such contract or other record may be denied if such electronic record is not in a form that is capable of being retained and accurately reproduced for later reference by all parties or persons who are entitled to retain the contract or other record.

(f) Proximity.--Nothing in this title affects the proximity required by any statute, regulation, or other rule of law with respect to any warning, notice, disclosure, or other record required to be posted, displayed, or publicly affixed. (g) Notarization and Acknowledgment.--If a statute, regulation, or other rule of law requires a signature or record relating to a transaction in or affecting interstate or foreign commerce to be notarized, acknowledged, verified, or made under oath, that requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable statute, regulation, or rule of law, is attached to or logically associated with the signature or record.

(h) Electronic Agents.--A contract or other record relating to a transaction in or affecting interstate or foreign commerce may not be denied legal effect, validity, or enforceability solely because its formation, creation, or delivery involved the action of one or more electronic agents so long as the action of any such electronic agent is legally attributable to the person to be bound.

(i) Insurance.--It is the specific intent of the Congress that this title and title II apply to the business of insurance.

(j) Insurance Agents and Brokers.--An insurance agent or broker acting under the direction of a party that enters into a contract by means of an electronic record or electronic signature may not be held liable for any deficiency in the electronic procedures agreed to by the parties under that contract if-- (1) the agent or broker has not engaged in negligent, reckless, or intentional tortious conduct; (2) the agent or broker was not involved in the development or establishment of such electronic procedures; and (3) the agent or broker did not deviate from such procedures.



State Initiatives

Many, though not all, states have passed legislation authorizing digital signatures.

The International Aspects







Opposition to Digital Signatures

While digital signatures seem like an easy issue to support, it is worth noting that there remains at least some opposition.

One commentator has noted that digital signature legislation doesn't solve the current mess of standards relating to digital signatures, and that digital signatures may leave the "unconnected" (those without access to the net) behind.

The Consumer Project on Technology, a group affiliated with Ralph Nader, has issued the following statement about the Federal "E-Sign" Act:

People should understand that this bill is about legal issues. It does not create any new technology. The bill was pushed to solve the problems of businesses, and not to protect consumers. The legislation will increase the risks of identity theft. According to the National Consumer Law Center, the bill places new burdens on consumers to provide evidence in disputes over electronic transactions.

The E-sign Act increases the legal obligations on consumers who interact with businesses on the Internet and through other digital media.

The E-sign Act raises the legal status of agreements that are 'signed' using electronic technologies, including such authorizations as click-on buttons on web pages, as well as many other electronic authorizations, of varying degrees of security. On the one hand, it overrides other statutes and regulations, and declares as a general rule, that no contract or signature can be denied legal effect, solely on the grounds that it was in electronic form. On the other hand, it fails in important ways to guarantee that consumers will be protected from fraud or unfair business practices in a wide range of matters.

In general, electronic transactions may leave consumers more vulnerable to unauthorized use, compared to conventional transactions. Technology residing on a consumer's personal computer can hardly be expected to be shielded from malicious intrusions. Unlike a handwritten signature, if an electronic authorization is stolen or forged, the legitimate owner will be hard-pressed to prove that it was used fraudulently. The E-sign Act contains no provision to limit the liability of consumers victimized by fraudulent spending.

Congress rejected pleas from consumer groups that the e-sign bill include a provision to ensure that a contract cannot be altered once a consumer's digital signature is affixed. The Senate language on this was dropped from the bill that was signed by the President today. The risk is that consumers will be victimized by changes in contractual text, inadvertent or otherwise, eroding the consumer's ability to reproduce copies of digital contracts at a later date, or admit such documents as evidence.

The digital signature bill is likely to hurt consumers lacking access to the Internet, especially low-income consumers and minorities. The E-sign Act does allow the consumer the choice of receiving a contract in electronic or paper form. However, given the prevalence of adhesion contracts in business-to-consumer transactions, this 'choice' may very well be "take-it-or-leave it," or constrained by penalty fees for paper-based contracting, a practice not prohibited by the legislation.

 

N O T E S  &   Q U E S T I O N S

1. The Internet Law & Policy Forum (ILPF) notes three 'categories' of digital signature legislation:

prescriptive (requires a certain technology)

standards-based (establishes technological standards, but doesn't specify a technology)

signature-enabling (silent as to technology issues)

Into which category would you put the "e-sign" act? What are the pros and cons of each of these categories? Which would you choose as a legislator?

 

2. Consider the infrastructure required to operate a digital signature system. That is, in the example above, who decides that Alice is actually who she says she is? (And who gives that person / organization the authority to do so?)

This issue is addressed by the use of Certificate Authorities (CAs), who distribute and authenticate digital signatures. At this point, there are many certificate authorities -- all private corporations, operating without licensing or regulation. Do you think this can/will continue? Are there legal risks involved with being a certificate authority?

 

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