Electronic Signatures Go Legal

Some years ago, the film Sneakers featured a voice-encoded door lock that required three keys for entry. First, the person desiring entrance swiped a magnetically encoded security card, and then said the phrase "My name is *****. My voice is my passport, verify me." The second key was the person's name substituted for the "*****." The third was biometric recognition of the person's voice as a match for a previously recorded voice associated with that name and key card.

It was very secure.

The main characters in the film had to go through all kinds of (improbable) shenanigans to duplicate all three keys so they could break in to retrieve the secret decoding device.

Very entertaining, but what has that to do with the impact of technology on society?

To find out, fast forward to 1997, when the Food and Drug Administration published 21 CFR Part 11 establishing criteria under which the agency would consider electronic records and signatures equivalent to paper records and hand written signatures. Twelve years later (1 June 2009), the FDA stopped accepting paper submissions for drug establishment registration and listing on the assumption that "moving from a paper-based format to an electronic system will improve the timeliness and accuracy of the submissions." Similar rules have been adopted by other U.S. government agencies.

You can see where this is going. As time goes on, more and more legal transactions will be sealed via electronic signatures rather than written signatures.

Most recently, John M. Facciola, United States Magistrate Judge, U.S. District Court for the District of Columbia, issued the first digitally-signed judicial order on 25 September 2009. This action is seen as transforming the manner in which orders are issued throughout the entire judicial system, according to a news release issued by the National Notary Association (NNA).

"The capability to digitally sign an order or other document should create in the people who receive it an assurance that the document was signed by the judge, and eliminate corrupt attempts to use forged, electronically created documents for improper ends," said Judge Facciola. "It is the next logical development in the transition by the court from paper to electronic filing that will keep the court's way of doing things consistent and contemporary with the actual practices of the society that the court serves," Judge Facciola added.

According to NNA, Judge Facciola received a digital certificate - an electronic identification credential used to sign electronic documents - after having his identification verified and authenticated by Elaine Wright, a District of Columbia Notary Public and Trusted Enrollment Agent. A Trusted Enrollment Agent (TEA) carefully verifies the identity of individuals applying to obtain a digital certificate prior to issuance. TEAs have been certified and background screened by the NNA.

"By utilizing a Trusted Enrollment Agent, parties relying on Judge Facciola's judicial orders can have confidence that his identity was verified for the digital certificate and that the orders were signed by the judge himself," said National Notary Association Chief Executive Officer, Larisa B. Gurnick.

Make the connection between a digital certificate and biometric identification, which is already standard practice in advanced security systems, and you see where this trend ultimately leads. Given time, we may all find that "My voice is my passport, verify me" is how we sign all of our legal records, which are increasingly becoming electronic.

The days when deals were struck with a promise and a handshake may be coming back. The difference being that the promise may be captured in an audio recording with the parties' voices constituting their legally binding signatures.