Editorial: Volume 4 Number 1
The nature of the problems lawyers will continue to face respecting digital evidence is illustrated in the recent case of Campaign Against Arms Trade v BAE Systems PLC  EWHC 330 (QB). Mr Justice King granted Norwich Pharmacal relief to the Campaign Against Arms Trade (CAAT) against BAE Systems PLC (BAE) in this instance. Ann Feltham sent an e-mail on the 29 December 2006 to the members of the CAAT steering committee internal e-mail list (email@example.com), a private list not open to the members of the public and comprising only the 12 members of the steering committee and seven members of CAAT's staff. The e-mail contained privileged legal advice that CAAT received from its solicitors.
A copy of the e-mail was sent to BAE. Solicitors for BAE returned a copy of the e-mail printed on paper to CAAT's solicitors. This was the first time that CAAT came to know of the leak.
The e-mail returned to CAAT was incomplete, as described by Mr Justice King, at 31:
'It was a redacted version of that which had come into the possession of the Respondent and/or its own solicitors. All the routing information, the header address and so forth, which would give details of the email accounts through which the email had been received and sent before arriving at the Respondent and its solicitors, had been removed. Such removal must have been done either by the Respondent or by its solicitors acting on its instructions.'
The source of the leak could only be the result of two possibilities, and CAAT did attempt, unsuccessfully, to trace the source, as described by Mr Justice King:
'45. As Ann Feltham says, there are really only two broad possibilities: either the source is one of the authorised recipients of the email, i.e. a member of the Applicant's steering committee or staff, or the email was intercepted or retrieved by other means by a person or persons unknown, be it by improper access to the Applicant's or a recipient's computer system, interception at riseup.net or at some point whilst the email was sent over the internet. In her first witness statement she explains how she made enquiries of each of the authorised recipients who each denied forwarding the email on. Her second witness statement was made in response to that part of the Respondent's skeleton argument in which it is said that the Applicant has not done enough and that before seeking the present order the Applicant should have (skeleton para.27.) "examined the electronic data available to it on its own computer systems and those of 'riseup.net' and further should have asked any authorised recipients to provide it with access to their personal electronic data for purpose of determining whether their denials of involvement in the copying are accurate".
46. In this later statement Ms Feltham says she did check the 'sent folders' on the personal computers of the staff based in the Applicant's office, but explains that there was a major practical and logistical problem as regards access to the computers used by members of the steering committee. Unlike the staff they are not employees of the Applicant but volunteers who do not work in the office or use computer systems belonging to the Applicant. Some are members of other organisations who access emails from accounts and equipment owned by their employers. Some are based outside London. This all means that to have investigated further on the lines suggested by the Respondent, the Applicant would have needed access to computers to which the Applicant has no right of access and in any event the Applicant would have needed the "costly services of a computer expert to go on a fishing expedition for emails which might or might not have been sent which moreover would have been very time consuming.'
The claim by BAE that CAAT ought to physically examine every computer to trace the route of the e-mail is somewhat unrealistic, as explained above, and also fails to grasp the fundamental issue, that digital data knows no geographical, physical bounds. Returning the e-mail without the source data is similar to returning a letter received through the post in an envelope, yet refusing to deliver up the envelope. That the routing and other technical data is 'similar' to the data included on an envelope is an understatement, because the routing and other metadata available in relation to an e-mail is far more extensive than the metadata contained on an envelope. In this instance, Mr Justice King concluded that the order sought ought to be granted, although not in the terms requested.
This application, and the decision by Mr Justice King, illustrates the importance of the metadata associated with a digital object. Documents in digital format include metadata as a matter of course, and it seems unrealistic for the recipient to refuse to deliver up the full document, including the associated metadata, in such circumstances.
Editorial: Volume 4 Number 2
The introduction of paper caused some lawyers consternation in Europe, mainly because lawyers did not know how to assess the veracity of the contents recorded on the paper carrier. As a result, elaborate rules were developed in some countries for the authentication of documents recorded on paper so as to prevent or counter attempts at fraud. At the time, the pace of change was probably slow enough to ensure that lawyers, judges and those that entered the profession were able to improve their knowledge and understanding of the evidential requirements relating to the introduction of paper relatively easily.
However, some centuries later, a similar change has already taken place with respect to digital data, and, it seems, that a large majority of lawyers, legal academics and judges have failed to realize they are now living in a world dominated by digital evidence, and that digital evidence is now the dominant form of evidence. Although quantifiable figures are not available, it can be asserted with some confidence that the majority of lawyers, legal academics and judges do not know they do not know; a smaller number know they do not know, and an even smaller elite know about digital evidence, but they are realistic enough to know they need to know more.
The law acts as a means to provide for social stability, yet if lawyers and judges fail to grasp that they need to begin to understand the attributes of evidence in digital format, individuals that are caught up in events such as those illustrated in the case of the State of Connecticut v Julie Amero (January 2007, Docket number CR-04-93292, Superior Court New London Judicial District at Norwich, GA 21) will find themselves subject to the collective failure of the legal system: by the prosecution, defence and judge. This failure to become familiar with evidence in digital form by the participants in the legal system is further acerbated by the failure of the majority of universities and law schools across the world to incorporate any discussion of digital evidence into the curriculum. This means that the majority of students are taking degrees and participating in vocational training that ignores the new reality, that virtually all evidence brought before a court within the next three years will be from a digital source (see The Expanding Digital Universe: A Forecast of Worldwide Information Growth Through 2010 (IDC White Paper, March 2007). Yet the vast majority of students, lawyers and judges do not know how to assess such evidence, nor are they in a position to brief digital evidence specialists effectively, or to ask the right questions of such specialists during the legal proceedings.
At the other end of the continuum, United States Magistrate Judge Paul W. Grimm in Lorraine v. Markel and American Insurance Co 2007 ILRWeb (P&F) 1805, 207 WL 1300739 (D. Md. May 4, 2007) provided a useful academic paper on the authentication of digital evidence, yet failed to indicate why he decided to dismiss certain evidence because it was not authenticated.
Unless legal academics educate potential lawyers in digital evidence, and judges and lawyers concern themselves with the need to be educated in the topic, more rough justice can be expected across the globe. Not only rough justice. Lawyers in some jurisdictions can expect to face actions for negligence: this will then cause the professional indemnity insurers to take notice, and lawyers will then rush to become more educated. In the meantime, it is only to be guessed how many lay clients will be at the receiving end of poor legal advice in respect of digital evidence.
Editorials copyright Stephen Mason, 2007
Integrating qualified electronic signatures with password legacy systems
Heiko Roßnagel and Jan Zibuschka propose a method to achieve single sign on using qualified electronic signatures that can be used for all e-commerce sites
European Civil Law Notaries ready to launch international digital deeds
Bernard Reynis and Ugo Bechini set out the changes brought about by the adoption of technology by notaries in France and Italy
Telematic Land Registers: the role of the civil law notary
Michele Nastri provides an insight into the factors to be taken into account when devising an e-conveyancing scheme, as illustrated by the Italian model
The role of the notary in real estate conveyancing
Eliana Morandi sets out the role of the civil law notary in the context of real estate conveyancing, illustrating how more effective and less costly it is when undertaken by civil law notaries
Electronic signatures: value in law and probative effectiveness in Greece
Dr. Komninos Komnios sets out the law on electronic signatures in Greece and outlines how electronic signatures are evaluated in court, with reference to case law
E-commerce for Notaries in England & Wales
Michael Lightowler discusses the previous work by notaries on electronic notarization, and sets out the most recent changes that are taking place
Professionalism in digital forensics
Alastair Irons and Anastasia Konstadopoulou explore some of the issues that affect the emergence of a new breed of expert: the digital forensic specialist
The German electronic order for payment procedure
Bartosz Sujecki describes the procedure to make a claim for money that is owed and not paid, including a brief overview of the history of the procedure
Admissibility of computer evidence in Tanzania
Alex B. Makulilo considers the issues accompanying the meaning of a digital document, and offers suggestions for the amendment of the Tanzania Evidence Act
The creation of Qualified Signatures with Trusted Platform Modules
Frederic Stumpf, Markus Sacher, Claudia Eckert and Alexander Roßnagel argue that the new generations of computers that include a trusted platform have the capacity of providing more reliable proof for both parties when entering contracts at a distance over the internet
The electronic signature in Chile
Jorge Quintanilla, Cristian Doren and Diego Hernández examine the current position of electronic signatures in Chile and outline the possibility of further changes taking place in the near future
Lorraine v Markel: unnecessarily raising the standard for admissibility of electronic evidence
Brian W. Esler discusses the implications of the lengthy opinion of United States Magistrate Judge Paul W. Grimm in relation to the authentication of electronic evidence
Tribunale Mondovì, 7 giugno 2004, n. 375 (decr.), Giur. It. 2005, 1026
Electronic signature. Commencement of legal proceedings electronically. E-mail signed with typed name. Validity.
Electronic signature. Bank card. PIN. Unauthorized withdrawals. Proof. Liability of bank.
10 A 11741/05
Qualified electronic signature. Electronic documents submitted to Administrative Court. Validity.
BGH of December 12, 2000 – XI ZR 138/00
On-line banks. Exclusion of liability for temporary restrictions and interruptions.
People’s Republic of China
Rong-Shu-Xia Computer Ltd. v China Society Publisher
Digital evidence. Authenticity of e-mails. Evidential value.
Beijing Han-Hua-Kai-Jie Technology Development Ltd. v Chen Hong
Digital evidence. Authenticity of e-mails. Employment contract. Evidential value.
A12-3342/05-C11, The Federal Arbitration of the Povolzhsky District
Banking. Digital signature. Failure to protect private key. Mistake. Transfer of funds.
I Up 505/2003,The Supreme Court of the Republic of Slovenia
Electronic signature. Name typed on e-mail. Administrative appeal. Validity of electronic signature.
U.2000.1853V, Danish Western High Court
Electronic signature. PIN. Debit card. Mistake as to amount.
U.2006.1341V, Danish Western High Court
Scanned manuscript signature. Electronic signature. Mortgage redemption. Validity of scanned manuscript signature.
Title: Electronic Evidence: Disclosure, Discovery & Admissibility
Authors Philip N Argy, Ruth Cannon, Steve Coughlan, Robert J. Currie, Brian W. Esler, Julien Hofman, Ms Lorna Goodwin, Ms Manisha T. Karia, Tejas D. Karia, David Leung, Stephen Mason, Iain G. Mitchell QC, Laura O’Gorman, Dr Damian Schofield, Daniel Seng and Bryan Tan
Date and place of publication: London, April 2007
Publisher: LexisNexis Butterworths
ISBN number 9 781405718370
This book introduces lawyers to the practical concepts of electronic evidence, how it is created, stored and structured, including computer forensics and experts. It covers disclosure, procedural process and admissibility. The aim is to bring to the attention of lawyers information about electronic evidence, such that they begin to understand what questions to ask of experts, rather than to rely upon experts exclusively, and to make experts appreciate the finer points of procedural and evidential issues relating to electronic evidence.
An increasing number of cases involve the use of electronic evidence, including e-mails, and many lawyers are not familiar with the concepts surrounding such evidence. Electronic evidence now affects every aspect of law, including criminal and civil law. Electronic evidence has become of greater importance now the internet and world wide web have become ubiquitous. It is increasingly apparent that criminals will target the electronic environment to steal, carry out extortion and abuse children. Additionally, in the civil arena, organizations (both public and commercial) now rely on their electronic environment so much that it has become critical to their business and survival. From contracting to dealing with employees when they misuse the e-mail and internet facilities, lawyers, whatever their speciality, will have to become familiar with electronic evidence. This includes employment, family, crime, civil, intellectual property, land law: in effect, no area of law is excluded. It is necessary for lawyers to begin to understand the technical issues relating to electronic evidence – especially knowing what sorts of questions to ask of experts when preparing expert reports.
The text introduces lawyers to the complexities of electronic evidence, which will help them advise on electronic evidence confidently, with assurance and competently. The text covers a mix of common law jurisdictions, enabling lawyers and judges to be aware of decisions made in other, related jurisdictions.
The text covers:
The sources of digital evidence, The characteristics of electronic evidence, Investigation and examination of digital evidence, The evidential foundations, written by Stephen Mason, Director of the Digital Evidence Research Programme at the British Institute of International and Comparative Law
Using Graphical Technology to Present Evidence by Dr Damian Schofield, an Associate Professor of Computer Games and Digital Media at the School of Creative Media, RMIT University, Melbourne, Victoria, Australia and Ms Lorna Goodwin, a researcher at the University of Nottingham
Individual jurisdictions covered:
Australia by Philip N Argy, a Senior Partner in the Intellectual Property & Technology Group at Mallesons Stephen Jaques, Sydney, Australia
Canada by Steve Coughlan, Professor at Dalhousie Law School, Halifax Nova Scotia and Robert J. Currie, Assistant Professor at Dalhousie Law School in Halifax, Nova Scotia
England & Wales by Stephen Mason
India by Ms Manisha T. Karia, a practicing Advocate in the Supreme Court of India at New Delhi, and Mr Tejas D. Karia, a Senior Associate with Amarchand & Mangaldas & Suresh A. Shroff & Co, Advocates & Solicitors, New Delhi, India
Hong Kong Special Administrative Region, People’s Republic of China by David Leung is the Deputy Section Head of the Appeals Section, Prosecutions Division, Department of Justice, HKSAR.
Ireland by Ruth Cannon LLB (Dub) BCL (Oxon) BL, a practising barrister and member of the Department of Legal Studies, the Dublin Institute of Technology
New Zealand by Laura O’Gorman, a partner at Buddle Findlay, Wellington, New Zealand
Scotland by Iain G. Mitchell, QC, Chairman of the Faculty of Advocates Information Technology Group, the Scottish Lawyers’ European Group and Vice-Chairman of the Scottish Society for Computers and Law
Singapore by Daniel Seng, BCL (Oxon), Associate Professor with the Faculty of Law, National University of Singapore and Bryan Tan is an advocate and solicitor and managing director of Keystone Law Corporation
South Africa by Julien Hofman, Associate Professor at the Department of Commercial Law, University of Cape Town, South Africa
United States of America by Brian W. Esler, a partner in the Intellectual Property Group at Miller Nash LLP in Seattle, Washington
Title: Electronic Signatures in Law
Authors: Stephen Mason; Valerie C. Mann, Anila Srivastava and Thomas S. Woods (Canada chapter); Dr Martin Eßer (Germany chapter); and Thomas M. Dunlap (USA chapter);
Date and place of publication: London, July 2007
Publisher: Tottel Publishing Limited
ISBN number 978 1 84766 051 0
Electronic signatures are ubiquitous. Every person that uses e-mail, uses an electronic signature. Every person that uses a cash card, debit card or credit card uses a form of electronic signature. The second edition of this book provides a practical and comprehensive guide to understanding electronic signatures, providing an analysis of what constitutes an electronic signature, the form an electronic signature can take issues relating to evidence, formation of contract and negligence.
The case law on electronic signatures covers a vast range of law, including: employment, family, divorce proceedings, formation of contracts, insurance, wills, public administration, judicial use, Statute of Frauds, property transactions, local government planning, criminal, and corporations. The text includes pertinent case law from 28 jurisdictions: Argentina, Australia, Brazil, Canada, China, Colombia, Czech Republic, Denmark, Dominican Republic, England & Wales, Estonia, Finland, France, Germany, Greece, Hungary, Israel, Italy, Lithuania, Netherlands, Papua New Guinea, Poland, Portugal, Singapore, South Africa, Spain, Switzerland and the United States of America.
The text covers:
1 The signature; 2 The form of a signature; 3 International initiatives; 4 European Union Directive on electronic signatures; 5 Canada; 6 England & Wales, Northern Ireland and Scotland; 7 Germany; 8 United States of America; 9 International comparisons; 10 The form of an electronic signature; 11 Parties and the risks; 12 Contractual liability; 13 Non contractual disclaimers and negligence; 14 Evidence; 15 Digital signatures; 16 Data protection; Appendix 1 International Statutes; Appendix 2 UK Orders; Appendix 3 Standards; Appendix 4 Correspondents; Appendix 5 Resources