RE: [legalxml-courtfiling] RE: On the Entity Seal in Court Filings

["Clarke, Thomas" <tclarke@ncsc.dni.us>]

As I said, I don't really want to become a participant in this issue.

The hypothetical situation you describe sounds to me like part of the
initial filing process from filer to court DMS, so it would be in scope
by the definition I described below.

-----Original Message-----
From: John Messing [mailto:jmessing@law-on-line.com] 
Sent: Tuesday, May 24, 2005 4:02 PM
To: Clarke, Thomas
Cc: Nick Pope; legalxml-courtfiling@lists.oasis-open.org; Winters,Roger
Subject: RE: [legalxml-courtfiling] RE: On the Entity Seal in Court
Filings

Suppose the file goes through an infomediary, and at the end of the day
its file is different from the court's in that one has a "not" that the
other lacks. If the infomediary using entity seals, like Dallas does,
and the court does not, will we turn a blind eye to the filer and say
too bad? It was just out of scope?

> -------- Original Message --------
> Subject: RE: [legalxml-courtfiling] RE: On the Entity Seal in Court
> Filings
> From: "Clarke, Thomas" <tclarke@ncsc.dni.us>
> Date: Tue, May 24, 2005 12:52 pm
> To: "John Messing" <jmessing@law-on-line.com>, "Winters,Roger"
> <Roger.Winters@METROKC.GOV>
> Cc: "Nick Pope" <pope@secstan.com>,
> <legalxml-courtfiling@lists.oasis-open.org>
> 
> I don't really have a dog in this hunt, but I will hazard the
following
> comment:
> 
> Ensuring the integrity of the document from filer to court DMS seems
> within scope for Blue.
> 
> Ensuring the integrity of the document after it comes under the
control
> of the court seems out of scope for Blue.  It may be important to
ensure
> it; it just isn't an e-filing requirement.  It is an court e-document
> storage requirement.  If we treat the ECR MDE as a black box, then
that
> is just what it is. 
> 
> -----Original Message-----
> From: John Messing [mailto:jmessing@law-on-line.com] 
> Sent: Tuesday, May 24, 2005 3:42 PM
> To: Winters,Roger
> Cc: 'Nick Pope'; legalxml-courtfiling@lists.oasis-open.org
> Subject: [legalxml-courtfiling] RE: On the Entity Seal in Court
Filings
> 
> I thank Roger for his comments but I think in all fairness the
proposal
> is not mine. A group of us including Dallas Powell, Nick Pope and I
> were asked to put the matter in a form that the committee could
> consider. I believe that I can only take a small portion of the credit
> for it.
> 
> I think Roger's views are court-centric and come from experience with
> paper. A problem with electronic records is that they can be accessed
> and changed in undetectable ways, which is not true of paper.
> Therefore, when he suggests that one simply open the file and read it
> to see if has changed, a question immediately is presented --how do we
> know it is the authentic file, and that it has not been altered?. The
> fact that it has been stored in the court is certainly better than if
> it was not under the custody of the clerk but being in the custody of
a
> court system or clerk no longer has the same assurance of
infallibility
> as with paper. Electronic documents are simply constructs of one and
> zeroes that are interpreted by machines to display a particular
result.
> If we pretend otherwise, then we risk destroying the credibility of
> legal records and the authority of the courts. Fortunately, this is
> avoidable if we prudently adopt technical means that help determine if
> the ones and zeros have changed.
> 
> Roger's position is a little like saying we will never need geiger
> counters in courts because everyone knows that they are not
susceptible
> to radiation.
> 
> A problem with relying solely upon hash values is that they can be
> substituted if one has access to a system in order to substitute the
> true hash with the hash of an altered file. With an altered file and
> its own unique hash, a risk is presented that an altered document will
> pass as authentic, even if it has been altered. Once hashes are
> encrypted, the situation is different. One can no longer simply
> substitute a new hash. An additional layer of difficulty has been
> introduced, which requires also obtaining a unique key, that provides
a
> considerable level of increased protection.
> 
> No one has suggested to my knowledge that a tamper-evident seal will
> supplant the laws of evidence. On the contrary, such devices are a way
> to determine the state and technical properties of evidence. But human
> decision makers, in this case judges, will have the final say.
> 
> It is better to be safe than sorry, particularly where court records
are
> concerned. And properly constructed applications will not complicate
the
> work of clerks. They should act transparently.
> 
> My two cents.
> 
> > -------- Original Message --------
> > Subject: On the Entity Seal in Court Filings
> > From: "Winters, Roger" <Roger.Winters@METROKC.GOV>
> > Date: Tue, May 24, 2005 9:57 am
> > To: 'Nick Pope' <pope@secstan.com>, jmessing@law-on-line.com, 
> > legalxml-courtfiling@lists.oasis-open.org
> > 
> > I thank John Messing for his proposal, because the function of the
> "entity
> > seal" has now been clarified for me. I believe that an "entity seal"
> (or
> > similar tool) should not be made mandatory in Court Filing Blue.
> Here's why:
> > 
> >  
> > 
> > The tools that can provide technical security, ensure authenticity
of
> what
> > is filed, etc., are useful in the process of getting the filing into
> the
> > Clerk's (Court's) hands (system). Once there, the filing is
> "authentic" or
> > "valid" or "unchanged" because it is in the custody of the Clerk,
not
> > because a technical feature was included or procedure performed. 
> > 
> >  
> > 
> > When a document is sent to "the Court" for inclusion in the record,
it
> is
> > actually sent to "the Clerk of the Court," who has a ministerial
> function
> > and duty to receive and preserve the record, such as it is, for the
> duration
> > of its retention. In a court of general jurisdiction, retention can
be
> > "indefinite," or "forever." Once the record is in the Clerk's hands
> (or
> > system), it is the Clerk's duty to maintain it. It is not a duty
that
> can be
> > handed over to an "entity seal" to authenticate the document at some
> future
> > date -- it is the Clerk of the Court who authenticates it based on
> having
> > had custody of it. 
> > 
> >  
> > 
> > In the event of a controversy over the authenticity of a filed
> document that
> > is in the Clerk's custody, an "entity seal" would not settle the
> matter. It
> > might be one item of evidence, but such a dispute will be resolved
in
> the
> > Court, based on evidence, laws, and testimony. 
> > 
> >  
> > 
> > If one is suspicious that something on file with the Clerk has been
> tampered
> > with, changed in some way, there is also a "SneakerNet"
> > verification/validation method -- open the file and read the
document!
> 
> > 
> >  
> > 
> > I see a parallel between the "entity seal" of today and the "WORM
> drive"
> > arguments some of us had a few years ago. It was said that a
> non-rewritable
> > drive was essential to protect against any change in documents
> maintained
> > electronically by "the Court" (meaning, of course, the Clerk). 
> > 
> >  
> > 
> > It is usually good to look for an analogy in the handling of paper
> court
> > filings -- we do not routinely add anything like an "entity seal" in
a
> paper
> > filing.
> > 
> >  
> > 
> > It is the duty of the Clerk to obey lawful orders to make changes in
> the
> > court record, including changes in filed documents. Sometimes they
> must be
> > modified, for example, by elimination of a certain name or reference
> > wherever it appears in a document that, otherwise, is to remain part
> of the
> > record. (Clerk's staff here, in the paper days, would scissor out
such
> > information carefully, leaving documents literally full of holes.)
> Some
> > implementations (including King County's) modify every single
> electronic
> > filing by affixing the Clerk's "FILED" stamp and related information
> onto
> > the document, changing the bitmap or the PDF file when doing so.
> > 
> >  
> > 
> > Certifying that a copy was made from a document that is part of a
> Court case
> > record is how the Clerk attests to having had custody and control
over
> that
> > record. The Clerk doesn't and can't certify the document contains
any
> truths
> > or that signatures were made by the right people. It is not a system
> where
> > the possibility of error or fraud has to be eliminated on the way in
-
> > errors and acts of fraud are things that are discovered and brought
to
> the
> > attention of law enforcement and the Court for resolution. 
> > 
> >  
> > 
> > ON THE OTHER HAND, the value of a tool like the "entity seal" for
> winning
> > over the hearts and minds of technology-suspicious stakeholders
should
> not
> > be underestimated.
> > 
> >  
> > 
> > It may be advantageous for an implementer to use the "entity seal."
> Some
> > Clerks may choose not to make any changes to filed documents, for
> example,
> > linking the "FILED" stamp information to it or overlaying, but not
> embedding
> > it. A Clerk might decide that any changes ordered by the Court will
be
> made
> > on an exact copy of the original filing, to be re-filed "on behalf
of
> the
> > Court" (in its own "new" entity seal) while eliminating or hiding
the
> > "original." 
> > 
> >  
> > 
> > I do not believe that an "entity seal" (as I have come to understand
> it)
> > should be a mandatory feature in Court Filing Blue. As an optional
> feature,
> > it may offer several benefits when designed to support, not inhibit
> the
> > Clerk's performance of his duties.
> > 
> > 
> > Regards,
> > 
> >  
> > 
> > Roger
> > 
> >  
> > 
> > Roger Winters
> > 
> > King County
> > 
> > Department of Judicial Administration
> > 
> > Continuing Legal Education (CLE) Coordinator
> > 
> > and 
> > 
> > Programs and Projects Manager
> > 
> > 516 Third Avenue, E-609 MS: KCC-JA-0609
> > 
> > Seattle, Washington 98104
> > 
> > V: (206) 296-7838 F: (206) 296-0906
> > 
> > roger.winters@metrokc.gov
> > 
> >  
> > 
> >  
> > 
> > -----Original Message-----
> > From: Nick Pope [mailto:pope@secstan.com] 
> > Sent: Tuesday, May 24, 2005 8:39 AM
> > To: jmessing@law-on-line.com;
> legalxml-courtfiling@lists.oasis-open.org
> > Subject: RE: [legalxml-courtfiling] Groups - Entity Seal
Requirements
> Update
> > Docume t (DSS-EntitySeal-inCourtFilingUpdate.doc) uploaded
> > 
> >  
> > 
> > John,
> > 
> >  
> > 
> > One approach might be to include the XML Signature structure in the
> syntax,
> > identifying the data objects to be protected and the form of
> protection
> > required.  The mechanistic specifics of how to achieve the
protection
> could
> > be left open.
> > 
> >  
> > 
> > At this stage a key question is whether there is a requirement for
> > protecting evidential value / authenticity of court filing
> submissions, and
> > whether the authenticity of submissions is verifiable by all
> interested
> > parties.  If so I suggest some form integrity seal is required.
> > 
> >  
> > 
> > Nick
> > 
> >  
> > 
> > > -----Original Message-----
> > 
> > > From: jmessing@law-on-line.com [mailto:jmessing@law-on-line.com]
> > 
> > > Sent: 24 May 2005 15:02
> > 
> > > To: legalxml-courtfiling@lists.oasis-open.org
> > 
> > > Subject: [legalxml-courtfiling] Groups - Entity Seal Requirements
> Update
> > 
> > > Docume t (DSS-EntitySeal-inCourtFilingUpdate.doc) uploaded
> > 
> > > 
> > 
> > > 
> > 
> > > The document named Entity Seal Requirements Update Docume t
> > 
> > > (DSS-EntitySeal-inCourtFilingUpdate.doc) has been submitted by 
> > 
> > > John Messing
> > 
> > > to the OASIS LegalXML Electronic Court Filing TC document
> repository.
> > 
> > > 
> > 
> > > Document Description:
> > 
> > > This document describes a possible additional requirement section
to
> Blue
> > 
> > > for an Entity Seal, which could be a generic entity seal or one
> based upon
> > 
> > > the DSS TC Entity Seal profile. However, DSS has a different IPR
> policy
> > 
> > > than LegalXML TC's and so a generic type of entity seal may be
> preferable.
> > 
> > > The issue of whether an entity seal should be mandatory or
> recommended for
> > 
> > > Blue is left to the TC without a selection.
> > 
> > > 
> > 
> > > Best regards.
> > 
> > > 
> > 
> > > View Document Details:
> > 
> > > http://www.oasis-open.org/apps/org/workgroup/legalxml-courtfiling/
> > 
> > document.php?document_id=12823
> > 
> >  
> > 
> > Download Document:  
> > 
> >
>
http://www.oasis-open.org/apps/org/workgroup/legalxml-courtfiling/downlo
> ad.p
> > hp/12823/DSS-EntitySeal-inCourtFilingUpdate.doc
> > 
> >  
> > 
> >  
> > 
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> > 
> >  
> > 
> > -OASIS Open Administration
> > 
> >  
> > 
> >  
> > 
> >  
> > 
> >
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