[security-jc] amended comments

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

I am sure that I was not as articulate as I would have liked to have been on the call earlier today and that my comments accordingly were not clear to Darran.

Could you please amend the statements attributed to me as follows:

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John Messing from the eNotary LegalXML TC 

JM on eNotary

E-Notary as a TC occupies a common ground between legal doctrines and technical authentication and security issues. It specifically addresses self-authenticating evidence and what that term means for electronic data. Non-repudiation is not a recognized legal term though it has a commonly understood technical meaning. 

Self-authenticating evidence however does have a recognized legal context. Taking the example of the Federal Rules of Evidence, Rule 901 et seq., as a definitional source of self-authenticating evidence, such evidence does not generally require a party to establish as a preliminary matter the legal "foundation" for its consideration by a judge or jury. In the paper world, notarized documents are often accorded such self-authenticating treatment. Because the paper notary attests to a signer's identity and voluntary affixation of the signature, and also follows certain legal requirements, including creating a written record entry that is analogous to a time stamp of the transaction, all preliminary testimony regarding such matters is deemed unnecessary in court. 

We chose the name eNotary for the TC because of the belief that certain technically secure electronic data ought to receive analogous treatment. 

Electronic foundational issues in the absence of self-authenticating treatment could result in conflicting testimony by experts for the benefit of lay people called to act as judges or jurors about how a particular security technology operates and why it is or is not reliable. Usually, if there is grounds for debate, an opposing party is given an opportunity to attack the testimony of another side through presentation of an opinion by its own expert.  By defining self-authenticating electronic evidence that is generated in a particular security context, eNotary seeks to resolve beforehand and eliminate as 
a practical matter such potentially expensive and distracting preliminary foundational issues which may otherwise come to dominate specific cases and obscure more relevant factors and considerations. 

The ultimate legal determinations about which technologies should qualify for treatment as self-authenticating may become important to emerging e-businesses, because relative predictability in legal treatment will almost certainly affect the viability of business models crafted for the adoption of particular technical security solutions. 

Currently there are monthly telephonic meetings of the TC, which was recently formed. 

E-Notary is interested in the work of the technical security committees and the joint security committee as part of an ongoing effort to 
establish standards for judicially and legally evaluating electronically signed data, both human and computer-generated. The 
deliverables are XML standards to express the legal considerations relevant to the various security models. These standards 
are intended also to obviate the need at a future time for relying parties to retain outmoded hardware and software solely for the purpose of validating electronic signatures on legal documents that still have legal validity but were signed using technologies that have since become obsolete.

The eNotary TC of LegalXML aims in a first instance to define a set of standards within which digital signature technologies, whether PKI, PGP, DSIG or other can be classified and understood in xml syntax by lawyers and judges and the applications that serve them, alongside such initiatives as Passport, Liberty, and other technologies, including click-wrap agreements. 

For more information, please consult the TC charter.

JM with regard to the Integrated Justice TC 

JM I can't really speak as a representative for the Integrated Justice TC. From my limited participation and observations, it seems to me that the TC is looking initially at applications to enhance secure exchanges of data over the Internet between law enforcement agencies and between such agencies and the Courts, including law enforcement and court web services, though I think a proper representative of the TC at a future meeting could better report specifically to the joint security committee about the Integrated Justice TC and its interest in the joint security committee.  
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John Messing
Chair, eNotary TC, LegalXML-Oasis
Chair, eFiling Committee, American Bar Association

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