THE LAW AND TECHNOLOGY
By
Judge  Arthur M. Monty Ahalt (Ret.)
As was pointed out last month, the use of electronic means for filing court documents has not waited for the evolution of the law or the technology. The process has marched steadily along. Currently, almost all electronic filing projects are controlled by a case management order signed by a Judge, authorizing the use of electronic filing and specifying the rules and technology that will apply to each project. As case management orders for electronic filing make the transition from specialized mass tort projects to generalized use across all dockets, and as e-commerce statutes becomes more universal, laws and court rules will provide the road map for the electronic filing of court documents. At the same time, technology will continue to mature and provide better and less costly security and authentication alternatives.
THE LAW
The law that governs the use of electronic filing in the court system arises primarily from three sources: the judge’s case management order, court rules, and legislative solutions. Below is a survey of typical examples of each.
Case Management Order
In order to combat inefficiencies in the paper process, often judges issue case management orders to allow for the use of electronic filing in a particular case or project. Such a case management order establishes the conditions and requirements for filing documents electronically and becomes the “law of the caseâ€. Typical of such a case management order is the order Judge Henry Newkirk entered to define the process in Fulton County, Georgia (Atlanta) This order enabled electronic filing of court documents in asbestos cases through JusticeLink[1]. Judge Newkirk’s order which is similar to orders in San Francisco Superior Court, San Diego Superior Court and Texas State Courts requires the parties to file pleadings electronically through the JusticeLink service in accordance with standards and rules enunciated in the order. Other electronic filing providers such as Westfile, Veralaw and Gov24.com also support the case management order approach.
Court Rules
Many court systems have adopted electronic filing procedures that are particular to their jurisdictions. The following is a representative sample of several of those courts. A more comprehensive list of electronic filing rules has been published by the National Center for State Courts and West Publishing.[2]
In Maryland, one of the first states to enact a rule, The Court of Appeals adopted the approach of allowing certain specified courts to undertake electronic filing pilot projects provided they file a pilot plan which met certain criteria contained in the rule. The rule further requires the state court administrator to make a recommendation of approval or disapproval to the Court of Appeals who must approve the plan before electronic filing can begin. JusticeLink conducted the first pilot in 1995 in accordance with this rule in the Circuit Court for Prince Georges’s County and currently has a plan submitted to the Court of Appeals for approval of a pilot in the Baltimore City Circuit Court.[3] The Florida Supreme Court adopted a similar approach.[4]
In Colorado the first state wide state court electronic filing project adopted a rule, which allows for electronic filing of court documents through a court authorized service provider JusticeLink.[5]
In the U.S. District Court for the Eastern District of New York, for instance, if a party has brought a case before a judge that allows the use of electronic filing procedures, that party can send a notice to the opposing party informing him that the use of electronic means is available. If the parties and judge consent, then all documents related to the case must be filed electronically using the E.D.N.Y. Public Web Site. Each document filed with the court must be signed. This can be achieved by either entering in a User ID and password (if the party is a Filing User) or by having the signature optically scanned onto the document, which is then sent electronically.[6]
The Bankruptcy Court for the Eastern District of Virginia has a similar system in place. Once an attorney registers to participate in the Electronic Case Filing System and receives a password from the court, he or she has consented to receive notice and service electronically from that time forward. When filing documents electronically, the filing party must provide those entitled to receive notice that electronic means have been used. If the receiving party is also a registered participant, then service and notice can be transmitted electronically. The procedures of the court also allow for the filing and retrieval of documents by those who do not have access to the Electronic Case Filing System.[7].
The U.S. District Court for the Northern District of Ohio uses a system called Electronic Case Filing (ECF). In order to use the system, attorneys admitted to practice in the jurisdiction must apply for a User Name and Password, which will function as the party’s signature for documents filed electronically. The attorney must also obtain specific consent from the judge to use electronic filing for each particular case. Currently, complaints must be submitted in paper form, but electronic means can be used for filing documents thereafter. The web site for the Northern District of Ohio provides links to information about ECF, including a walk-through tutorial for lawyers interested in learning how to use the system. [8].
The Supreme Court of North Carolina allows for appellate court documents to be filed electronically. The user must first register with the court; request forms are located online at http://www.ncappellatecourts.org/nc_main_1.nsf. Within a couple of days of when the form is submitted, the person requesting registration will be contacted by phone for identification verification. Once registration has been approved, notification is sent to the applicant by email. In order to file a document electronically a user must log on to the Internet address, convert the document to PDF format using Adobe Acrobat Writer, fill out a form on the web, and upload the file. [9].
Legislative Solutions
Legislative Solutions for electronic signatures have evolved at both the Federal and State levels as Congress and state legislatures have responded to the adoption and expansion of e-commerce. These legislative bodies seek to enable new commercial markets that promise to enhance the economic well being of this country. In this context electronic signatures for electronic filing of court documents becomes a subset of eCommerce. Legislative solutions are necessary at both the state and federal levels in order to address issues of intrastate (state) and interstate (federal) commerce.
State Solutions
Early efforts were made by certain states to lend security to electronic commercial transactions. Utah, California, and Illinois were among the front-runners. The first piece of digital signature legislation was the Utah Digital Signature Act, passed in 1995.[10] The Act attaches a presumption of validity to digital signatures. The meaning of “digital signature†is limited, as it only applies to signatures created using a specific technology, and not to electronic signatures generally.[11] In California digital signature legislation known as Assembly Bill 1577, was passed in California in 1995.[12] The legislation only applies to transactions conducted with public entities, but is expansive in that it does not prescribe the use of a certain type of technology, unlike the Utah Digital Signature Act.[13]
The Illinois Electronic Commerce Security Act took effect in 1998.[14] The legislation distinguishes electronic signatures of varying degrees of security and correspondingly applies presumptions of validity at each level.[15]
National Uniform State Efforts
The Uniform Electronic Transactions Act (UETA) creates a uniform standard for conducting transactions using electronic means. Twenty-five states have either adopted UETA or enacted substantially similar state legislation: Alaska, California, Delaware, Florida, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Minnesota, Nebraska, New Jersey, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Utah, Vermont, Virginia, and West Virginia.[16]. If adopted by a state, UETA governs its intrastate transactions. It may co-exist with other state electronic commerce legislation, or may stand on its own as the state’s guide to carrying out transactions electronically.
Federal Solutions
The Electronic Signatures in Global and National Commerce Act (E-Sign), which took effect October 1, 2000, gives electronic signatures the same force as documents signed by hand. The impact of the Act is limited in the sense that it generally only pertains to interstate transactions. E-Sign and UETA share a common purpose: to ease the way for electronic commerce by giving legal validity to electronic transactions.[17]
Unlike E-Sign, however, UETA speaks to attribution of signatures, admissibility of evidence, and the effect of other state laws. Additionally, UETA talks about the impact of errors on electronically created agreements, details pertaining to calculating when documents are sent and received, and consent between parties to use electronic means. [18] Also, the two acts differ with respects to how they resolve issues pertaining to protecting consumers, keeping records, using an electronic agent in the making of transactions, and influencing the powers of state governments. [19]
The enactment of E-Sign created some ambivalence about the validity of state e-commerce laws currently in effect. Generally, if a state has enacted UETA as it was drafted by NCCUSL, E-Sign will not preempt State law. If a state has enacted its own electronic commerce legislation or adopted an altered form of UETA, the issue of whether the state law will be pre-empted by E-Sign must be resolved according to §102(a)(2) of the E-Sign Act. In many cases, the extent to which E-Sign will affect e-commerce legislation drafted by the states is uncertain; the courts will play an important role in determining how the laws should be applied.
THE TECHNOLOGY
Several companies have taken the initiative to develop technology that makes it possible for documents to be signed electronically, and be secured in electronic form.
Ilumin (http://www.ilumin.com) is the creator of Digital Handshake, a web-based program. Customers can link to online signing rooms by clicking on the Digital Handshake icon located on the company’s own Web site. In the signing rooms are documents posted by the company, which customers can access and digitally sign, if they have obtained a digital certificate. Documents may be encrypted and stored in an e-cabinet, where they can be accessed later. [20]
E-Lock (http://www.elock.com) provides a software-based program called Assured Office. Once the software is downloaded, documents created using compatible business software may be digitally signed by scanning the user’s digital certificate into the system. Assured Office allows the user to govern the level and strength of security applied to documents. E-Lock also offers Assured WebSite, which makes it possible to digitally sign Web documents through the use of public-key-infrastructure-based technology. [21]
Silanis (http://www.silanis.com) offers ApproveIt’s, a software program designed to allow a user to attach his digital signature to documents once he has created a file that contains a digitized capture of his handwritten signature, a digital certificate, and a public/private key pair. The user can then electronically sign documents by selecting an icon built into the computer’s toolbar, entering the appropriate password, and arranging the placement of the signature on the document. Security options are available to the user, so the security level desired for the document can be applied. [22]
VeriSign (http://www.verisign.com) is a public certification authority, which provides authentication services and structure for programs. Among its products are VeriSign OnSite and Go Secure! Services. VeriSign OnSite is a public key infrastructure service that secures information viewed or transmitted electronically. Go Secure! Services provide layers of security and verification to a user’s current applications.[23]
PGP (http://www.pgp.com) has developed PGP eBusiness Server, a software program that can authenticate and encrypt data. Additionally, PGP eBusiness Server can verify signatures, and provide security for information as it is being sent from one server to another. [24]
Entrust (http://www.entrust.com) is the creator of Entrust/PKI, which provides the structure for securely encrypting, authenticating, and applying digital signatures to documents. [25]. Entrust/Entelligence is a software program that works with Entrust/PKI, automatically managing security issues, including encryption and digital signatures with a single infrastructure. [26]
THE FUTURE
As e-commerce becomes a predominate method of doing business, the legal system will have to respond to the many practical as well as legal issues e-commerce activity will create. As customary practices develop in e-commerce, the court system will follow the customary practices. Until that time many experiments will take place.
This article first appeared on pro2net.com- http://www.pro2net.com
[1] http://www.justicelink.com
[2] A Guidebook for Electronic Court Filing http://www.ncsc.dni.us/NCSC/TIS/TIS99/ELECTR99/EfileWest.htm
see also Electronic Court Documents http://www.ncsc.dni.us/NCSC/TIS/TIS99/ELECTR99/EDC-TOC.htm
[3] Maryland Rule 16-307
[4] Florida Rule 2.09 Rules of Judicial Admistration
[5] http://www.courts.state.co.us/iis/iisproj.htm
[6] http://www.nylj.com/links/ednyfile.html.
[7] http://www.vaeb.uscourts.gov/home/localrules.html
[8] .
http://www.ohnd.uscourts.gov/Electronic_Filing/CMECF_Notice/cmecf_notice.html
[9] http://www.aoc.state.nc.us/www/public/sc/suggest.htm.
[10] . http://www.le.state.ut.us/~code/title46/46_03.htm.
[11] . Karl D. Belgum and Thelen Reid & Priest, LLP, Legal Issues in Contracting on the Internet (visited September 13, 2000) http://library.findlaw.com/scripts/getfile.pl?file=/thelen/trp000045.html.
[12] http://www.mbc.com/ecommerce/legis/california.html#CA REGS
[13] Karl D. Belgum and Thelen Reid & Priest, LLP, Legal Issues in Contracting on the Internet (visited September 13, 2000) http://library.findlaw.com/scripts/getfile.pl?file=/thelen/trp000045.html
[14] http://www.mbc.com/ecommerce/legis/illinois.html#IL ECSA.
[15] Karl D. Belgum and Thelen Reid & Priest, LLP, Legal Issues in Contracting on the Internet (visited September 13, 2000) http://library.findlaw.com/scripts/getfile.pl?file=/thelen/trp000045.html.
[16] http://www.bmck.com/ecommerce/uetacomp.htm
[17] Charles R. Merrill and Robert J. Burger, E-Quality at Last for E-Signatures (August 21, 2000) http://www5.law.com/nj-shl/display.cfm?id=3226.
[18] Patricia B. Fry, A Preliminary Analysis of Federal and State Electronic Commerce Laws (July 7, 2000) http://www.uetaonline.com/docs/pfry700.html.
[19] See id.
[20] Kathy Yakal, Shaking Hands Digitally (August 25, 2000) http://www.zdnet.com/pcmag/stories/reviews/0,6755,2620060,00.html
[21] . Kathy Yakal, E-Lock Your Documents (August 25, 2000) http://www.zdnet.com/pcmag/stories/reviews/0,6755,2620057,00.html
[22] Kathy Yakal, Make Approvals Bulletproof (August 25, 2000) http://www.zdnet.com/pcmag/stories/reviews/0,6755,2620058,00.html.
[23] http://www.verisign.com/enterprise/index.html.
[24]Â Â Â Â http://estore.nai.com/asp_set/ShowProducts_set.asp?BU=TNS&Action=110&sOrg=1&Categ=B2B.
