VirtualCourthouse Issue 5.5  ELECTRONIC SIGNATURES FOR COURT DOCUMENTS

By

Judge Arthur M. Monty Ahalt (Ret.)

With the advent of electronic filing of court documents in the early 1990s many issues were originally thought to be significant impediments. Chief among those issues was the requirement that court documents contain signatures and that there were very few methods of securing a document much less a signature. Many who were resisting change made an argument against electronic filing based upon electronic systems’ inability to make a signature secure.

EARLY EXPERIMENTS

The first electronic filing projects addressed this problem by being closed dial-up (non- Internet) systems, which were managed through proprietary structures. CLAD the electronic filing system first used by Lexis-Nexis in Wilmington, Delaware and JusticeLINK, in Prince George’s County, Maryland both addressed the issue through the use of a password authentication protocol. The protocol required a subscriber to sign a subscription agreement, which triggered the issuance of a password to the subscriber. Both the court and the private company kept a log of each password and subscriber. Since the systems were closed proprietary (non-Internet), security issues concerning the identity of an individual making a filing and the authenticity of the document itself were minimized and managed successfully. For a more complete listing of articles concerning digital signatures see DIGITAL SIGNATURES.

As the legal community started to explore the types of technology that would be the greatest help to overcoming security issues presented by open Internet systems, it became obvious that many of the solutions were extremely expensive. Additionally, many required a certificate authority to maintain a secure list of electronic signatures. It became apparent that there would be competition among stakeholders to become the certificate authority. Would it be the bar association, the court of appeals, the secretary of state, and who would mediate the process to get one national or international certificate authority which would prevent having to deal with multiple certificate authorities?

As this debate continued many clerks, judges and court administrators started to examine more closely the actual paper process in order to better design a secure electronic process that could be used by attorneys from international firms as well as pro se filers. What they discovered was that there does not exist a standard means for authenticating documents or signatures in the paper process. No clerk or judge checks or authenticates a signature in the paper world. See Electronic Court Documents

It is important to recognize at the outset that there are several different security and authenticity issues associated with filing and storing documents. First is the issue of the authenticity of the signature: how is it that the creator of the document and the one who vouches for its truthfulness and accuracy can be accurately identified? Second, is the issue of the authenticity of the document itself: how can there be an assurance that the document cannot be changed or tampered? This article will analyze the first issue. The second issue has been fairly well answered by the use of SSL Internet technology and PDF formatting, both of which have been relatively well accepted and are not very expensive. Secure socket layer (SSL) technology serves as a means of encrypting data sent from the user’s site to the browser. If the message sent is tampered, when it reaches the browser, it will not be readable . Portable document format (PDF), a standard adopted and marketed by Adobe, allows for a document, once converted to the format to be incapable of alteration. The document can be accessed by using free PDF reader software.

PAPER PROCESS AUTHENTICATION

For well over 100 years the courts and clerks of this nation have received paper pleadings that have been signed by parties and their attorneys. Almost every court has rules concerning the signature and oath requirements of particular types of pleadings. See for instance Rule 11 of the Justices’ Courts’ Rules of Civil Procedure adopted by the Supreme Court of Nevada. Neither the clerk nor the court verifies or otherwise authenticates a pleading. Neither the party nor an attorney is required to show any corroborating identification. Indeed many of the pleadings are filed by regular U.S Mail, Federal Express or other delivery services. During my 35 years of experience as a trial lawyer and a Judge, I do not recall many times when a pleading was under serious challenge for the authenticity of a signature of a party or a lawyer. The absence of questions of authenticity in the paper process is attributable to a variety of factors which serve as deterrents to making fraudulent misrepresentations:

1. A signature is capable of being identified as authentic by experts in handwriting analysis, as well as being challenged by the person whose name has been signed.
2. The rules of court require other identifying information, such as a party’s address. The content of the pleading also reveals details about the party and his relationship to others individuals involved in the case or controversy.
3. The opposing party acts as a rigorous check against inaccuracies in the information provided by the filing party.
4. A party submitting a document to the court can be held in contempt for making intentional misrepresentations.
5. The court may sanction the party by dismissing the case, not allowing documents or other evidence to be admitted, or taking other actions to dissipate the impact of the party’s fraudulent representations.
6. Criminal laws punishing forgery and fraud deter fraudulent activity.
7. Civil law remedies such as suits for committing fraud, or for otherwise engaging in a misuse of the judicial process, also act as deterrents.

TECHNOLOGY PROCESS AUTHENTICATION

The questions of whether and how technological means should be used in lieu of the paper process have forced a re-evaluation of the systems currently in place. While it is easy to discount the similarities present in the two processes, their likenesses need to be acknowledged in order to develop a more efficient legal system. In certain cases, the procedural checks present in the paper process also secure the validity of the electronic process. This is true with regards to filing pleadings electronically. Requiring an electronic signature, and identifying information decrease the likelihood that the filing party will be successful in misrepresenting a true identity. The adversarial check and the threat of being held in contempt of court or being sanctioned by the court persist as deterrents to fraud. The risk of facing criminal or civil charges for making misrepresentations or tampering with electronic documents is similarly substantial when engaging in electronic filing. Actually, when the electronic process is scrutinized the elements that are available to authenticate the creator and signer of a document are noticeably greater than in the paper process:

1. An individual’s identity is captured when he becomes a subscriber to an electronic system. His name, address, telephone number, credit card information, financial references, e-mail address, and other identifying information become available to the proprietor of the system.
2. Systems record and log the identity of the source of electronic access.
3. IP (Internet protocol) addresses can be traced to points of origin.
4. Electronic systems assign all transactions a system tracking number, which allow for the identification of specific users. Payment is verified through credit card agencies that maintain records of transactions.
5. Credit card companies maintain internal fraud investigation units that               constantly monitor use patterns to detect the occurrence of fraudulent activity.
6. “ Click†contract technology allows the identification of the PC from which authorization to contract has been given.
7. The rules of court require other identifying information, such as a party’s address. The content of the pleading also reveals details about the party and his relationship to others individuals involved in the case or controversy.
8. The opposing party acts as a rigorous check against inaccuracies in the information provided by the filing party.
9. A party submitting a document to the court can be held in contempt for making intentional misrepresentations.
10. The court may sanction the party by dismissing the case, not allowing documents or other evidence to be admitted, or taking other actions to dissipate the impact of the party’s fraudulent representations.
11. Criminal laws punishing forgery, fraud, and computer tampering deter fraudulent activity.
12. Civil law remedies such as suits for committing fraud, or for otherwise engaging in a misuse of the judicial process also act as deterrents.

CONCLUSION

While it is impossible to design a paper filing system or an electronic filing system that will be 100% effective in preventing fraud, both the paper process and the electronic process of filing court pleadings provide reasonable assurance of accuracy and authenticity. Additionally, a well-identified methodology of ascertaining fraud exists. In the final analysis, there exists substantial evidence that the authenticity of the identity of the creator and signer of an electronically filed document exceed those in the paper process. In future articles, current legislation, court rules and new, evolving technology will be reviewed.

This article first appeared on pro2net.com- http://www.pro2net.com