Washington Courts: Judicial News Report Detail

Digital signatures and the court

State Senator Jim Horn is all smiles.

His employer, the Boeing Company, is soaring on a record number of aircraft orders. During the last legislative session, he successfully sponsored Washington's new, innovative digital signature law. Both are connected.

Passage of Horn's bill, which takes effect a year from now, means electronic signatures will assume the legal equivalency of written ones. The King County lawmaker pushed the measure to help promote international trade. Using digital signatures, Boeing contracts can be signed in Osaka, Sydney and Seattle on the same day. Horn hopes these new efficiencies will make Washington businesses more competitive in today's burgeoning global economy.

For Boeing, the the importance of the Washington Electronic Authentication Act lies in its ability to enhance the formulation of contracts. This function should also be important to judges.

Courts and digital signatures

Simple questions--how do you notarize a digitally signed document?--arise. Then there are more subtle issues: if you print a digitally signed contract, is it an original? Future commercial litigation is bound to involve questions of formation of obligations based on digital signatures.

Courts are beginning to realize that they can benefit as much as Boeing from digital signatures. They know the digital signature process can address two administrative goals of courts: lowering storage costs and improving access to court records.

Electronic records are far less expensive to maintain than their paper equivalents. In the not-distant future, a hard drive in a desktop computer will be able to store documents moldering away in now-distant warehouses. Because indexing is more thorough with electronic documents, superior search and display abilities become available. Under the electronic paradigm, court files can be shared over secure Intranets. Provided privacy, security, and other concerns are protected, court records can be made available to the public through an Internet Web site.

A paper document can be only in one place at a time. In contrast, an electronic document can become simultaneously available in a judge's chambers and a clerk's office. The prosecutor's office and public defender can view the same judgment and sentence form without having to check out a file.

Roger Winters of the King County Superior Court clerk's office is leading the march to electronic court record-keeping. Now preparing for the opening of the county's new regional justice facility in Kent, his office faces the daunting prospect of providing files to two courthouses. Electronic filing may solve the problem.

Improvement of judicial productivity is a bottom line need. Less waiting for files can translate into hearing more cases. Digital signatures will be a key stop on the way to bringing electronic filing to courts.

An important aspect of digital signatures is authentication. Court personnel must be able to verify a given person really was in the courtroom on a particular day, and was found guilty of an enumerated crime, for example. The digital signature process allows for such authentication.

Making the cultural shift

For many, embracing a new tradition of digital signatures amounts to a mega-cultural shift. After all, lawyers and judges have relied on written signatures for centuries.

Sure, there have been jumps in technology. Quill pens used by Blackstone and Jefferson became fountain pens in the hands of Holmes and Learned Hand. Sealing wax on red ribbons, imprinted with the crest from a coat of arms and affixed to a will, became a tradition of the past, as did the passing of bundles of sticks to formalize transfers of realty. Lawyers and judges have always learned to adjust.

But when original documents become computer files, will we still be comfortable with the authenticity of those documents? Years from now, will we pull up an electronic document on our computer, with the same confidence we have today when retrieving a piece of paper from a file cabinet?

A Task Force organized by the office of Secretary of State Ralph Munro has been meeting for several months to discuss these issues, and hash out needed amendments to the legislation. One suggestion already made could assist county clerks.

Under the law, a stolen or lost digital signature must be canceled, much like a stolen credit card. The law says individuals should take their cancellation requests to the county clerk's office. But no fee was provided to support the new duty, and, upon reflection, the task seemed an awkward fit for county clerks. Accordingly, amendments proposed for the 1997 session of the Legislature include the deletion of this provision of the law.

Other states have passed digital signature laws, including California, Georgia and Florida. The American Bar Association's Committee on Technology has issued a book on standards for digital signatures. Other countries--Germany, Sweden and Singapore--are moving rapidly to create their own versions of digital signature laws. We will learn from their experiences as we enter the electronic age.

In the coming months and years, it will be up to judges and others in the court system to continue to polish and hone a justice system that best serves the people of Washington.

Brad Hillis is a legal analyst for the Office of the Administrator for the Courts and a member of the Washington Digital Signature Implementation Task Force. He can be reached via e-mail at Brad.Hillis@courts.wa.gov

Basics of the new law...

The new Washington Electronic Authentication Act was modeled on a pioneer measure adopted several years ago in business-savvy Utah.

In addition to legalizing machine-made signatures, Washington's law regulates the companies that issue the software used to create them. Maintaining the integrity of the process used to create them is essential to avoiding fraud. The U.S. Postal Service, Citibank, IBM, and several smaller companies have already announced plans to enter the digital signature market.

Washington's law is meant to foster commerce by making electronic messaging more efficient and reliable, speeding up the contract process, while minimizing risks of forgery and fraud. It also implements industry standards, and establishes uniform rules of authentication and reliability of e-mail.

Under the law, an issuing company can register with the Secretary of State or elect not to do so. One benefit of registration: a limit on liability in case of consumer loss. To protect consumers, the new law requires companies wishing to register to sell digital signature software to demonstrate financial solvency. They must also post a bond, employ no one with a criminal record, and submit to periodic audits.