About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

8 Digital Evidence & Elec. Signature L. Rev. 5 (2011)

handle is hein.journals/digiteeslr8 and id is 1 raw text is: EDITORIAL 'Il faut se m6fier des ingdnieurs: ga commence par la machine d coudre, ga finit par la bombe atomique'.' The United Nations Centre for Trade Facilitation and Electronic Business has been considering adding to its Recommendations, in particular 'Recommendation 37 -Signed Digital Evidence Interoperability'.2 According to the United Nations Economic Commission for Europe Report 2011 (ECE/INF/2o11/1, New York and Geneva, 2011), at page 80, the Recommendation appears to have been issued: 'Building upon the success of its Recommendation on Single Windows for import and export clearance, in 2010, UN/CEFACT issued three new, supporting recommendations: Recommendation 35 - Establishing a legal framework for international trade Single Window; Recommendation 34 - Data Simplification and Standardization for International Trade; and Recommendation 37- Signed Digital Evidence Interoperability.' However, the web site of the United Nations Economic Commission for Europe included a news item dated 18 July 2011, which indicated that the Recommendation was far from being issued, and it was decided at the 17th UN/CEFACT Plenary on 7-8 July 2011 to extend the review period for Recommendation 37 to 12 September 2011. Although the content of this Recommendation has altered from its initial iterations, nevertheless the text has the potential to affect laws across the globe. There are two significant issues in relation to this Recommendation. The first is the legal status of Recommendations in general: it is not clear what legal effect, if any, Recommendations have. The second, and more serious, is that it does not appear that any lawyer has been involved with the drafting, if indeed, it is even necessary. The summary reads as follows: 'The Recommendation defines a set of functional rules that signed digital evidence should follow, in terms of the organization and the relationships between the signed content, signatories' certificates and signatures.' This is a 'recommendation', yet uses the past tense of 'shall', indicating the mandatory nature of content of the document. It follows that it necessary to determine the legal effect, if any, of such a recommendation. The Foreword (page 3) reads as follows: 'The Signed Digital Evidence Interoperability Recommendation aims at increasing the level of interoperability of electronically 1 'It is necessary to be wary of the engineers: it Council, Recommenda starts with the sewing machine, it finishes with Evidence Interoperabil the atomic bomb', Marcel Pagnol, Critique des (Architecture, Enginee Critiques, (Nagel, 1949), page 38. Working Group - TBG6 2 The most up-to-date version appears to be ECE/TRADE/C/CEFACT/ ' United Nations Economic and Social Research September 2010). signed digital evidence in order to facilitate the development of paperless international trade. To achieve this goal, the Recommendation defines a set of functional rules that signed digital evidence should follow, in terms of the organization and the relationships between the signed content, signatories' certificates and signatures. The Recommendation does not deal with the legal aspects of electronic signatures, which are dealt with at the international level by other documents such as those published by UNCITRAL. Neither does it does deal with the semantics, usability or interpretation of the signed content. This Recommendation does not conflict with UNECE Recommendation 14 Authentication of trade documents by means other than signature. To facilitate the implementation of these rules, annex B gives examples of technical implementations using some of the most recent digital evidence standards. This annex may be updated in the future to take into account other proposed technical implementations. Due to the urgent need for improved interoperability in digital evidence verification, the Recommendation and its annexes are delivered simultaneously to facilitate the rapid deployment of the Recommendation.' The authors have made a number of statements that require explanation: i. There is no evidence to suggest that there is a problem relating to the use of digital documents in international trade. 2. The use of the past tense of 'shall' indicates the mandatory nature of the document functional rules that signed digital evidence should follow. The Recommendation appears to require all documents in digital format to be 'signed' using digital signatures, yet there is no discussion of how digital documents used in international trade are presently dealt with in practice, nor any attempt to indicate how such documents are accepted into evidence in various legal systems in the event of litigation between the parties.3 3. There is an assertion that there is an 'urgent need for improved interoperability in digital evidence verification', yet there is no discussion of what evidence there is, if any, to indicate that there is such a need.4 tion no. 37: Signed Digital ity Recommendation' ring and Construction , 2oio/214 dated 27 0 Pario Communications Limited, 2011 Digital Evidence and Electronic Signature Law Review, Vol 8 5 0 Pario Communications Limited, 2011 Digital Evidence and Electronic Signature Law Review, Vol 85

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most