[legalxml-enotary] Minutes of the Meeting of November 18

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

1. Date: November 18, 2002

2. Participants: Dan Greenwood, Manoj Srivastava, Pieter Kasselman, Charles Gilliam, John Messing.

3. Actions

A. Unanimous approval of the Minutes of the Meeting of October 19, 2002.

B. Beginning discussion of a request from the Security Joint Committee for the TC to meet at a face to face in conjunction with meetings of other TC's and the Security Joint Committee, all to be held in March 2003 in a city that was not yet identified. The discussion was deferred to the list for lack of sufficient time during the meeting.

C. Discussion of eNotary

1. Dr. Leff's paper on eNotary history was discussed in his absence. (He called later to report that he had missed the call because of an error in communication with the Chair, who apologized). The paper was seen as the beginning of a repository of information of the TC about past and present notarial practices. Dr. Leff offered to provide a further report of the authorities he has he ordered from the library once he has received and read them, which was much appreciated.

2. The Chair clarified some of the points about eNotary that concerned the members. Traditional notarial acts in an electronic context are not an exclusive subject matter of the TC given the fact that it is not possible to witness an electronic signature the same way one witnesses a wet signature (see below). Machine authentication (m-authentication) is also required, which is unlike the paper world.

Machine authentication requires some prior human identification as a preliminary first step, which corresponds roughly to a Registration Authority in a classic PKI. While the actual methods of registration for a PKI may be embodied in a particular vendor's legal documentation contained in its contractual undertakings which are usually posted in a certificate practice statement on a website, or as machine readable instructions contained within a certificate extension field (certificate policy), the truth at this stage is that there is no standardized methods to compare users' certificate registrations as between various types and makes of certificates and their vendors, even within PKI. The TC members agreed that undertaking such a standardization effort could be a considerable contribution of the TC to the overall Oasis security efforts, and agreed we should take on as a task of the TC to develop standards to classify and compare various authentication/registration methods, in xml syntax for the benefit, fo


3. Following the meeting, Tom Wrosch, who is a senior notarial official for the State of Oregon and an observer to the TC, warned against creating new roles for notaries that could stretch existing laws, but seemed comfortable with the following scenario, as described by the Chair:

I can see a notary attesting on paper to a person's jurat stating "I am so and so. My address is so and so. My email address is thus and such. My employer is so and so." The statement can be notarized as any other document. The notary simply says: "Acknowledged before me, Notary Public, by so and so, known to me as such, this date." In this form, it is a perfectly acceptable notarized document under existing state law. The document content also is sufficient to authenticate identity to a CA, particularly if the RA is also involved in the notarization procedure. 

Mr. Wrosch further reported that the Property Records Industry Association is supposed to be addressing eNotary standards  from the standpoint of a DTD to handle the elements of a notarization: seal (if required), signature, notarial certificate language. Thus, the DTD for state, county, date, signer name, etc. The DTD may be available shortly.

4. Following the meeting, a discussion was had on the ABA-ISC listserve involving the Arizona electornic notary law which was the subject of much discussion during the TC meeting, and which is cross-posted to the minutes because of its apparent immediate relevance to our discussion.

----- Original Message -----
From: "Russ Savage" <rsavage@SOS.STATE.AZ.US>
To: <ST-ISC@MAIL.ABANET.ORG>
Sent: Tuesday, November 19, 2002 7:09 PM
Subject: Re: Non-repudiation key usage


> We passed our electronic notary statute at the same time that we passed
> our UETA.
> http://www.sos.state.az.us/pa/E-notary%20index.htm
>
> The feature in it that has caused the most consternation is the notion
> of electronic notarization without the presence of a notary.
> http://www.azleg.state.az.us/ars/41/00356.htm
>
> I look forward to reading your paper.
> If you have time, let me know what you think of our approach.
>
> fyi, we trudge thru the swamp of bureaucracy and have not as yet been
> able to deploy any form of e-notary.
>
>
>
> On Tuesday, November 19, 2002, at 06:15 PM, Adrian McCullagh wrote:
>
> > Russ,
> >
> > As to a trust mechanism for proof of evidence you may interested in
> > another
> > paper which I co-authored with Professor Bill Caelli and Professor
> > Peter
> > Little which deals with the concept of Witnessing in the digital
> > environment.  In the end, I concluded that it was impossible for
> > anyone to
> > witness the affixing of an elelctronic signature.  The reason for this
> > stance is that for the mark of the witness to be valid in common law
> > jurisdictions the witness must have an uninterupted view of the actual
> > affixation of the signature by the person who is to be bound by the
> > contents of the document in question.  This in a physical sense
> > requires
> > the witness to actually see the affixation taking place.  This
> > litterally
> > can not occur in the digital environment. The actual affixation occurs
> > in
> > the memory of the computer.  For that matter not even the affixer can
> > be
> > certain as to  that what they are signing.  This then leads to the
> > possible
> > application of the latin maxim of "non est factum" which is loosely
> > translated to Not My Deed/Act.
> >
> > What needs to be done is for the concept of witnessing to be abolished
> > in
> > the digital environment and for a new mechanism known as verifying be
> > recognised.
> >
> > The paper is located at:
> >
> > http://www.austlii.edu.au/au/other/unswlj/thematic/1998/vol21no2/
> > mccullagh.html
> >
> > Dr. Adrian McCullagh Ph. D.
> > Solicitor
> > Freehills
> >
> > Direct 61 7 3258 6603
> > Telephone 61 7 3258 6666
> > Facsimile 61 7 3258 6444
> > http://www.freehills.com

Best regards to all.

John Messing
3900 E. Broadway Blvd., Suite 201
Tucson, AZ 85711
(520)547-7933 (v)
(520)547-7920 (f)
jmessing@law-on-line.com