Re: [egov] WebSign standardization effort - Encryption considerations

[Duane Nickull <dnickull@adobe.com>]

John:

I have some comments to make about your comments and am quite open to 
being educated further.  My original comments only represented my 
limited legal knowledge.  I am greatly interested in having you clarify 
further and stand to be corrected.  I wouldn't want to get into an 
online argument with lawyer on legal subjects however :-)

I may have not been clear on the first topic.  Definitely in Canadian 
law (which I believe is based on commonwealth law), there are three 
necessary ingredients to a contracts validity - a duly made offer, 
timely acceptance of the offer with clear intent and some form of 
consideration.  However, the aspect of benefit also comes into play for 
contract enforceability, even if a signature has not been specifically 
affixed to a contract.  The nice thing about this from a software 
standpoint, is that it reduces the focus solely on a signature to be the 
sole fact of judging contract validity.

An example would be if I offered you a contract that promised to pay you 
some money to paint my fence.  Assume that you or I never signed it and 
you went ahead and painted the fence and I had not withdrawn the 
contract.  If I then claimed that I was not going to pay you since you 
did not have a signed contract, me benefiting from your painting my 
fence would be tantamount to the consideration (benefit) portion of the 
contract.  Would this not be weighed if we went to court in the US?  I 
agree that it does not by itself directly make the signature legal or 
not.  I was just pointing out that the business aspects are also just as 
important.

I have been told by legal groups that the WYSIWYG bit is very important 
in electronic contracts since it establishes some of the intent to be 
bound by certain terms.  This is not true in all cases as you note, but 
if it cannot be proven that a signer was presented with something, they 
cannot be bound by it.  This has been tested in software license law and 
been an issue in cases where certain terms are not enforceable if it 
cannot be proven that they were presented to the signer at the time the 
contract was accepted, although if they are not material to the corpus.

More inline:

John Messing wrote:

>>2. Ensuring you take a snapshot of the signed content and can flag any
>>
>>changes (even 1 single bit) to the file;
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>Data integrity is of course extremely important technically (in my view
>indispensible), but it is not required under US eSign law, which is
>technology-neutral and will support simple click-through's without any
>crypto, if contracting parties so agree, even implicitly, as for
>example sending an exchange of emails and typing their respective names
>on them.
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DN - yes agree.  That is why we did not implement a methodology where 
changes invalidate the signature, choosing instead to merely flag them 
and let the parties do whatever they felt was appropriate.  I am 
interested if you think this is a good thing or if we should have done 
something else?

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>>3. Capturing the "intent" and motivation behind the signature.  If I 
>>produced a signature saying you signed it and promised to give me a 
>>million dollars and I would give you nothing in return, the intent
>>would 
>>be highly questionable.
>>
>>    
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>This is a legally unsupportable statement in common law. One can be
>bound to a signature without receiving anything in return.
>
<DN>  I am pretty sure in Canadian law the concept of "consideration" is 
sine qua non to a contract.  However, the concept of receiving anything 
is contentious.  Even if I have not given you anything, just the act of 
giving you a promise to deliver something in the future may be 
consideration ipso facto.

> Whether the
>obligation is legally enforceable without a for-value exchange depends
>on the circumstances. In a will, the testator receives nothing in
>return but the signature itself is valid. If the will is written
>manually in pen and ink, it need not even be notarized or witnessed,
>and is considered to be a self-proving holographic will in most US
>jurisdictions.
>
>It is important not to confuse desirable interpretations of business
>rules with legal requirements, which often leads to wishful thinking
>but legally incorrect propositions.
>
>Finally, while it is useful to establish an intent to be bound using
>technical means such as in a web form requiring a click-through, in
>order to point to an event which shows an intent to be bound in an
>auditable manner,  there is no legal requirement that intent must
>established from within the technical parameters of an electronic
>document or process or, in the paper world, even from within the four
>corners of the document itself. The context itself often provides the
>answer on intent. There is a US criminal case where a defendant was
>found guilty of a federal felony on the basis of several plaintext
>emails and some verbal testimony by colleagues as to the circumstances
>under which they were generated. The conviction was affirmed by the
>appellate court.
>  
>
DN - this is interesting.  I am curious to know if this is also true in 
my country.  It makes sense and I suspect it would be similar conceptually.

>This having been said, I am personally a great fan of PDF documents,
>particularly for legal purposes, but for long-term archiving, I think
>it may be useful to look for a solution that transcends any particular
>application or format.
>  
>
DN - I am glad to hear this given your stature in the community!  I 
would be really interested if you had any suggested modifications to the 
mechanism we use in PDF today.  Your expertise would be highly regarded 
on this issue.  This should be offline of course since it is not an eGov 
TC issue.

Best wishes and thanks!

Duane

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