[legalxml-enotary]

[John Messing <jmessing@law-on-line.com>]

For those how do not yet know him, Jim Keane is a distinguished legal
professional who is a former Assistant Attorney General of the State of
Maryland.

The question of where (as in whom) to place one's trust is a principal issue
in any authentication system. The presumed personal knowledge and integrity
of the banker and lack of compliance of notaries with the technical
requirements of the law may fall into this category. On the other hand, even
a banker may have his price, and there is no legal regulation of bankers for
authentications as in the case of notaries, who are usually required to post
a bond.

The same issue of whom to trust is exacerbated in an electronic transaction
because the identity of the trusted party must also be authenticated within
the trust model itself, which requires attention to other details, such as
whether the trust model engages in circular reasoning (e.g., I trust Joe the
banker to certify the transaction identities because some company says he is
actually the banker he is supposed to be).

----- Original Message -----
From: "jkeane" <jik@jkeane.com>
To: <legalxml-enotary@lists.oasis-open.org>
Sent: Wednesday, October 23, 2002 7:01 AM
Subject: RE: [legalxml-enotary] Legal requirements for digital notarization


> 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.
> >
> >
> >
> > ----------------------------------------------------------------
> > To subscribe or unsubscribe from this elist use the subscription
> > manager: <http://lists.oasis-open.org/ob/adm.pl>
> >
>
> ----------------------------------------------------------------
> To subscribe or unsubscribe from this elist use the subscription
> manager: <http://lists.oasis-open.org/ob/adm.pl>
>
>
> ----------------------------------------------------------------
> To subscribe or unsubscribe from this elist use the subscription
> manager: <http://lists.oasis-open.org/ob/adm.pl>
>