paperless government and the law john d. gregory ministry of the attorney general june 5, 2009

Paperless Government and the Law

John D. Gregory

Ministry of the Attorney General

June 5, 2009

Paperless Government and the Law2

Overview

Authority Legitimacy Legislation

Documents Signatures

Evidence Authentication Standards

Regulation


Authority

The Crown has powers of a natural personTherefore it can use electronic

communications For greater certainty (and for public

bodies with only statutory powers),Electronic Commerce Act, 2000Special statutes for special uses

• Electronic registration, filing etc.


Legitimacy

Besides the general criteria applicable to public and private sectors - security, authenticity, efficiency – the state faces additional demands: Protection of personal information Fair use of e-communications Access to information Truthfulness History (archivability) Public acceptability (model user)


Legislation

Electronic Commerce Act Minimalist Media-neutral Technology neutral

NOTE: ‘legal’ does not mean ‘prudent’ Security standards required Do not need to be better than paper


E-documents

Equivalent of writing: accessible so as to be usable for subsequent reference

Provision: that plus can be printed or stored

Originals: reliable assurance of integrity (i.e. not changed)

Retention: integrity plus accessibility as required

Public bodies’ IT requirements


Signatures

Basic function: link between information and person (legal entity)

Form does not show function Lots of flexibility (so: prudence?) ECA: where law requires a signature, e-

signature will do. Allows regulation re reliability – none has

been made (or asked for) Public bodies’ IT requirements

Some examples Faxes, retransmissions, loan applications


Signatures - incoming

How do we know who it’s from? Abolish signature requirement Close the system

Use proxies Outsource the signature Designate the technology informally Designate the standards for particular

programs


Signatures - outgoing

How do you know it’s official? Define the problem away Designate a secure accessible source

of data (unique identifier) Require secure signatures (e.g. PKI) Use a secure token of identity


Evidence – the basics

Admitting documentary evidence: authentic – the record is what it purports to

be best evidence – an original, or an

explanation not hearsay (a content rule not a form rule)

reliable and necessarybusiness records rulestatutory records rules

Ontario Evidence Act, Canada Evidence Act


E-Evidence – the basics Electronic documents – how does this change?

Authenticity: basic rule is OK – document supported by live witness – but e-documents can be more subject to manipulation .

• May be asked why the witness believes the record is accurate.

Original (best evidence): may be meaningless for electronic document. Changed by legislation from a record-based test to a system-based test

Hearsay: no change in principle – because content does not change with the medium. Often “ordinary course of business” test.


Evidence – authentication To ease admission, the law provides

presumptions that the record-keeping system has integrity: for one’s own computer, OK if one can show

• the computer was working fine all the time, or

• if it wasn’t, the problem did not affect the integrity of the record-keeping system

for a record from an adverse party’s computer, OK (since the other party knows more about it)

for a record from an independent third party, OK if kept in the ordinary course of business.


Evidence – standards

If the presumption is rebutted, so one has to show the integrity of a record-keeping system:For the purposes of determining under any rule of law whether an electronic record is admissible, evidence may be presented in respect of any standard, procedure, usage or practice on how electronic records are to be recorded or stored, having regard to the type of business or endeavour that used, recorded or stored the electronic record and the nature and purpose of the electronic record. (Evidence Act s.34.1(8))


Evidence – standards

CGSB Standard on Electronic Records as Documentary Evidence (2005)

The key rule of the Standard: think about it! In other words:

Make a policy about how e-records are managed Communicate the policy Implement the policy Monitor compliance with the policy Adjust the policy as required by circumstances

Have a policy manual that you can point to. Have an audit trail Have someone responsible (CRO) (+ witness)


Regulation

“The cyberspace is not a no-law land” • But: where is anything?

Direct application – finding jurisdiction Intermediaries

• Financial• Technological• Other

Virtual communities Codes and standards

• Legal and technical


Conclusion

Paperless government is not a legal problem

Need advice on how to comply with legal framework, but framework is very flexible.

Lots of non-legal challenges Prudence Security Interoperability Rest of today’s program …


Sources

”Solving Legal Problems in Electronic Government: Authority and Authentication” (2002) 1 Can Jl of Law and Technology No. 1 p. 1 http://cjlt.dal.ca/vol1_no2/pdfarticles/gregory.pdf

”Solving Legal Problems in Electronic Government: Jurisdiction, Regulation, Governance” (2002) 1 Can Jl of Law and Technology No. 2 p. 1 http://cjlt.dal.ca/vol1_no3/pdfarticles/gregory.pdf

Various articles on electronic records and the law http://www.euclid.ca