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Digital Signatures: Beyond Security
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Legislative Approaches
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As we ve discussed, digital signatures offer a range of benefits for businesses and consumers alike. For digital signatures to make their way into mainstream, however, two barriers must be overcome:
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How to give documents that exist only in electronic form the same legal status as paper documents How to provide a secure, reliable, and legally sanctioned method for signing electronic documents that will eliminate the need to generate and sign paper documents, thereby encouraging and facilitating electronic commerce
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Both problems require legislative solutions.
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Legal Guidelines from the American Bar Association
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The American Bar Association (ABA), the organization that represents the legal profession in the United States, has done considerable work on the legal aspects of digital signatures. In 1996, the ABA s Information Security Committee, Section of Science and Technology, published a document titled Digital Signature Guidelines. These guidelines were originally drafted to provide general, abstract statements of principle, intended to serve as long-term, unifying foundations for digital signature law across varying legal settings. Many states have chosen to model their own digital signature legislation after these guidelines. Many legal professionals, with the exception of the ABA special interest legal groups, are playing catch-up in the fast evolving and sometimes complicated digital world. As the number of e-commerce sites using digital signatures increases, so will the need for lawyers who can render sound legal advice. Clients will begin to look to attorneys and others for guidance about the appropriate level of security for a given line of electronic business and other transactions. It will be of the utmost importance for attorneys to cooperate closely with business and technical specialists in the procurement and deployment of computer security systems generally, and specifically those systems that require electronic signatures. The legal consequences that flow
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from the presence or absence of particular elements of data security will constitute risks, liabilities, and other potential costs that should be taken into account from the beginning.
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Legal Concepts Related to Digital Signatures
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Because electronic documents can be easily copied and modified without detection, they cannot automatically be assumed to be authentic. Moreover, unlike hand-written characters, digitally encoded characters are not unique. The signature on an electronic document is not physically connected to the document s content. To withstand both legal and technical tests, the recipient of an electronic document containing a digital signature must be able to prove to an impartial third party (a court, a judge, or a referee before whom the parties have agreed to submit for resolution any issue or dispute) that the contents of the document are genuine and that it originated with the sender. In addition, the signature must be such that the sender cannot later disavow the contents of the document. Before we go any further, let s review the concepts of nonrepudiation and authentication, which have been described earlier (see s 5 and 6). These concepts play a key role in the legalities of digital signatures, and it is important to understand how they differ in the digital world compared with the paper world.
Nonrepudiation
Nonrepudiation, at its most basic, is the ability to prove to an impartial third party after the fact that a specific communication originated with and was submitted by a certain person or was delivered by a certain person. Nonrepudiation, then, defines the means that are used to prevent illegitimate breaches of contract on the same grounds. This means that evidence exists thst ties the identity of a party to the substance of a message or transaction at a certain point in time and that the evidence is sufficiently strong to prevent or rebut that party s subsequent denial of it. The 1988 ISO Open Systems Interconnection Security Architecture standard provides a limited definition of nonrepudiation as a security ser-
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