A global legal framework for electronic signatures

Aglobal legal framework for electronic or digital signatures does not exist as of today. Most jurisdictions of the international community are presently engaged in their own respective efforts to ensure the integrity and safety, as well as the confidentiality that may be needed as regards their own e-commerce transactions. These are all individual, separate endeavors.

The nation-states are doing this individually by enacting separate digital signature laws or e-commerce legislation which include specific provisions on the legality, applicability, and admissibility of electronic signatures which are called "digital signatures" in the United States and Europe. For instance, the US has made it a state, not a federal responsibility, to enact individual digital signature statutes. Germany and Italy enacted their own digital signature legislation in August 1997, followed by Holland, the United Kingdom, and Sweden, which set up government commissions to attend to their own digital signature laws in 1998.

In the Philippines, RA 8792 was passed not too long ago by the Philippine Congress on June 8, 2000. I remember very well that the draft bills went through a lot of reviews...the DOTC made studies on this and gave comments and inputs. There were drafts submitted by Senator Ramon Magsaysay Jr. and by Congressman Leandro Verceles Jr., both exceptional members of the Senate and the House of Representatives respectively of the Eleventh Congress of the Philippines, which passed what is now called the "E-Commerce Law of the Philippines." The two abovementioned legislators did their work without much fanfare, but indeed with a great deal of dedication and efficiency which inspired the men and women of the DOTC that contributed to the effort. Former President Estrada signed his approval on June 14, 2000.

RA 8792, which symbolizes the Philippine effort toward global e-commerce, defines an "electronic signature" as referring to any "distinctive mark, characteristic and/or sound in electronic form, representing the identity of a person and attached to or logically associated with the electronic data message or electronic document or any methodology or procedures employed or adopted by a person and executed or adopted by such person with the intention of authenticating or approving an electronic data message or electronic document." It is my personal opinion that the definition’s precise and all-encompassing language was intended to ensure that it covered every possible mark, sound, even every characteristic in electronic form with the above specified requisites very precisely provided for.

At a global telecom event in 1999, I remember quite well that IBM’s chairman and CEO Louis Gerstner was in the same tiny reception area as I was, together with Singapore lawyer Valerie d’Acosta, a dear friend of mine who up to now communicates with me. We were four in what we labeled a "cubicle," waiting for our respective interviews with CNN. The fourth occupant was the head of the US working group, Richard Baerd, also a friend of mine through the years, an outstanding government telecom functionary of the US who had been a guest in my home. Mr. Gerstner was the only one all three of us had the pleasure of meeting for the first time. The subject matter had to do with electronic/digital signature legislation. Gerstner’s approach to a global legal framework was really not radical, in hindsight now, but in 1999, all three of us who knew each other’s respective opinions thought that the Gerstner approach was, to say the least, an unmanageable one. Today, however, my two friends, Valerie and Richard, may have very different thoughts about it as I do right now.

Gerstner’s stance supported open, technical and legal standards with respect to e-commerce in general and digital/electronic signatures in particular. His statement that IBM supports open systems on which any developer can build applications, suggested a movement away from a computer industry that had so far developed in an environment where proprietary standards were the norm. I still remember his words: "The Internet is an open environment driving the industry to an open standard."

Louis Gerstner’s strong endorsement of the liberalization of standards presented before the WTO, which the members still have to grapple with, did not surprise the three of us who were all government functionaries at the time.

I feel that it is of great importance that the world community arrive at common standards for electronic/digital signatures that will be accepted worldwide. There is the necessity to evolve the global legal framework on the matter. It can be argued that the appropriate framework called for must have to be supported by an appropriate technical infrastructure. The two must be present in order to provide for the enforceability of digital signatures.

People in business and government telecom functionaries all over the world are aware of the fact that although companies like IBM are actively seeking ways to accommodate all interested parties, the use of e-signatures in e-commerce continues to result in a variety of truly legal difficulties. We have a world community of nations that are sovereign states. Although a European Union exists today, each country in Europe is still a sovereign state, and each must be considered separately.

In that same venue, near the little cubicle, an IBM attorney, in fact a "Rechtsanwalt," which means the most senior level attorney, Dr. Norbert F. Uhlmann, towards the end of the interview arrived to fetch Mr. Gerstner. In the exchange of ideas after the interview as we all proceeded to the speakers’ dinner, I gathered some relevant information from Rechtsanwalt Uhlmann who said that the US, because of basic governing principles of federalism, favors local jurisdiction, while the European Union favors international control. Asian countries like the Philippines have crafted or are crafting the necessary legislation as a national jurisdictional matter, but the fact remains that currently no such global legal framework exists. It is a fact that there are statutes worldwide that still limit the application of electronic digital signatures, but even as these statutes/laws are regularly undergoing changes, it is safe to say that by and large the difficulties and problems attendant to electronic/digital signature utilization within any one particular jurisdiction, have been resolved by statute/legislation, or at least some type of resolution is underway.

It is therefore obvious that international law on the matter, even as to the global legal framework, has not yet been definitively set. Special attention is certainly necessary within the world community of nation-states to address the use of digital/electronic signatures for inter-jurisdictional activities and transactions.

Doesn’t all the above verbosity bring you to the realization and the yearning for the good old non-tech ways? I still prefer a dear friend’s own handwritten signature to the impersonal typeset an e-mail provides.

I guess I can rejoice over the fact that the knowledge of the world is indeed available to me at the touch of my finger. I guess I have to cope with the knowledge that the computer may store my files, my bank account, my writing, even my reading, and pictures of loved ones, but it will not be able to store the feelings I have whenever I see Eddie’s eyes in little adorable Zach’s, or the unbelievable welling of love as I gaze at lovely four-year-old Katya eating a Cinnabon. For that matter the computer can store Michelle’s excellent grades at Harvard but it will never be able to capture that feeling of a mother’s deep love and absolute pride. Nor will the computer be able to store the laughter of your children, or the sentiments of "the finest friends which are more valuable than the finest works of art."

They are all different facets of us: aliens in a new environment, probably longing for home and longing to be home again...