RE: [legalxml-enotary] Legal requirements for digital notarization

[jkeane <jik@jkeane.com>]

I have recently had to go to my bank and have them witness loan
documentation and a stock buy-back request. They had to certify that I was
an account holder personally known the banker.  That seems more cogent than
a notary who could compare me to a faked photo id license. In Maryland,
notaries will some times keep a log of event but not the documentation.
Notaries in my offices have never kept a logged to my recollection.

I've been dealing with these issues for proof of official service of process
by marshals, sheriffs and private process servers. Sending a digital photo
of the subject at their own front door -- still annoyed from being
served --should be pretty persuasive.

By way of background for the non-lawyers: I actually lost an appeal from a
favorable jury verdict that my client did not come to the sheriff's office
on a snow Christmas eve afternoon to accept service of a complaint over a
tax default on some farmland.

At trial, the deputy sheriff acknowledged his own log entry and his
signature on the ROS (Return of Service). He remembered the event, but had
no facial recollection.

My client proved to the jury that he was racing his string of horses at a
race track 100 miles away. The Court of Appeals decided that for tax
defaults challenged two years after service and default judgment that near
mathematically certain proof would be required.

My client lost several hundred thousand because his farmland, lost for
failing to pay less than $1,000 in taxes, had been rezoned to commercial by
the purchaser at a sheriff's sale.

There are very real world consequences to verified signatures.

Jim

James I. Keane
JKeane.Law.Pro
20 Esworthy Terrace
North Potomac MD 20878
301-948-4062 F: 301-947-1176 (N.B.: NEW FAX NUMBER)
www.jkeane.com <http://www.jkeane.com>

Co-Author and Annual Update Editor of Treatise: Litigation Support Systems,
An Attorney Guide 2nd
<http://www.westgroup.com/store/product.asp?product_id=16989703&catalog_name
=wgstore>   Ed. (WestGroup, 1992, updated through 2002)


-----Original Message-----
From: Moskovitz, Ram Austryjak [mailto:ram@verisign.com]
Sent: Tuesday, October 22, 2002 4:59 PM
To: 'jmessing@law-on-line.com'; 'Pieter Kasselman';
'legalxml-enotary@lists.oasis-open.org'
Subject: [legalxml-enotary] Legal requirements for digital notarization
WAS: RE: [legalxml-en otary] Example - Authenticating Request For Servi
ce


I think that while the initial goal is to solve the problem for the US
clearly that is not enough, we'll end up piling one more thing onto the "we
need to reconcile legal concepts across national jurisdictions" pile.
Perhaps it is overly ambitious to do otherwise today but I think we should
leave the door open and perhaps even plan on soliciting further input and
participation to establish requirements and a model that could be accepted
in other jurisdictions. Please feel free to correct my (mis) use of legal
jargon - I value the knowledge!

It seems to me that there is a mathematical technical part to this solution
(what does a digitally notarized thing look like, what are the significant
mathematical properties) and there is a legal technical part. To me the
legal technical requirements is the tough part - I think the math part is
more straight forward. [subject change]

The basic goal of the US notarization process as I understand it is to
provide witnessing services that speak to identity (who was there) and
liberty (free of undesired influence / duress). Given that the second is
relatively difficult to ensure in the physical world I don't know that we
can hope to do any better in the digital world. The latter is in my mind the
real work to be done here.

I don't have a good feel for what level of assurance of identity is required
for a witnessing event to have the same weight as a notarization event. I
think today you need present a driver's license. I can tell you that I may
have known a kid or two who had fake DLs with fake names and DOBs when I was
in high school. I'm confident real criminals (as opposed to kids trying to
get into dance clubs) are quite capable of doing the same. So it is safe to
assume that if it is at least as tough to get an identity certificate as it
is to get a [real :] DL that the event could, in the right court, carry the
same weight?

It would be easy to include a standard reference for the authentication
process used beyond what the CP/CPS of the CA indicates. For example if US
code were to indicate assurance level "N" was required for credentials to
suffice a certificate could contain a machine parseable indication thereof
which the CA could be bound to.

regards,
ram




> -----Original Message-----
> From: John Messing [mailto:jmessing@law-on-line.com]
> Sent: Monday, October 21, 2002 10:45 AM
> To: 'John Messing'; Pieter Kasselman;
> legalxml-enotary@lists.oasis-open.org; Pieter Kasselman
> Subject: RE: [legalxml-enotary] Example - Authenticating
> Request For Servi ce
>
>
> Please view comments inline.
>
> [Pieter Kasselman]
> >	As for e-Notary, we seem not to be concerned with
> question one (i.e.
> >we are not trying to define what a notarised document should
> look like). Is
> >that correct? Are we looking to come up with a single
> equivalent of CPS/CP
> >for e-Notaries?
> >
> >> [Pieter Kasselman]
> >>
> >> > So you are proposing that this TC defines the requirements by
> >> > which any e-notary process is judged, rather than
> specifying what an
> >> > e-notarized document looks like or how that document is
> generated and
> >> > processed (processed in the machine sense as opposed to
> the processes
> >> > surrounding the practices of the e-notary)?
> >> >
>
> [John Messing]
>
> I think one of the questions we may wish to consider is
> whether there is a need to be docu-centric, and if we decide
> such a needs exists, then we should articulate what legal
> process e-notarized documents need to conform to.
>
> I don't think we should be looking to base more than
> rudimentary thinking by way of analogies to CP/CPS.
>
> To my way of thinking however, and I think this was the
> unanimous agreement of the last meeting, eNotarization
> involves a determination about legal admissibility of
> information that has undergone a machine process to ensure
> verification, which itself has been determined to be suitable
> for legal proceedings and purposes. If a type of process has
> an eNotarization component of X, then a process which fully
> meets X can expect that its data will survive a legal
> challenge in the absence of any other controverting data.
> This could become important for example to the developing XML
> infrastructure within Oasis. If a WSS process could be said
> to require a particular eNotarization level of reliability
> for high value transactions, and another for low value
> transactions, and it is certified by a trusted certification
> body as meeting both, then that tells a lot to a potential
> purchaser of the technology in terms of how the resulting
> output of the process may be viewed in the event of dispute,
> even disputes that go to cou
>
>
>
> That to me is a very important contribution this group can
> make at this particular time.
>
> Best regards.
>
>
>
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