James Ness, Deputy Registrar at the Society and Project Manager of the Smartcard development and deployment, explains a bit about digital signatures and the culture change for solicitors they bring about.
Through my involvement in the Society’s Smartcard project, I have learned more than I care to know about the technology and legislation underpinning digital signatures. If I'm not careful I may find myself more geek than guru.
The simple truth however is that the technology is not difficult and as it turns out all surprisingly familiar. It appears we are all blissfully unaware that for many years using our chip and pin bank cards involved digitally signing authorisations for the transfers of money -- from the ATM to your wallet or from your account to the restaurant's bank account -- it all depends on digital signatures. This is when technology is at its best, when essentially it's invisible and we don't think about what we're doing, we just use it because it works.
The Society's digital signature is exactly the same in operation as a bank card and perhaps the toughest thing about the technology is that it's one more PIN to remember.
It enables you to sign documents in Word, PDF, Excel, Outlook and many other systems, many of which have had the technology built into them for over a decade -- we just didn't have signatures we could use.
It turns out that what is actually difficult is getting your head round doing things differently and making the culture shift from the reverence with which we treat "wet signatures" to digital signatures. Several key conversations with members of the profession reflect this cultural issue.
How can I trust or interrogate the authenticity of a digital signature? The real question is -- on what basis have you been trusting or interrogating the authenticity of wet signatures? The reality is that rarely are wet signatures verified in any meaningful way.
We trust them because they are presented to us in a context that causes us to believe that they are what they are -- we spent three months negotiating terms we agreed on the telephone, confirmed by e-mail and followed up with a paper document which reflect those terms -- naturally we are reasonably entitled to trust the document bears appropriate wet signatures. The same is true of the digital signature, but because it's new that automatic faith is not there yet. But shortly it will be as familiar as relying on e-mail which in the past was challenged for exactly the same reasons.
Is it right that anyone in possession of a digitally signed document can create more self-proving originals even if they're not a signatory? In a word -- yes. Provided that the document is not edited in any way and its filename is not changed using "save as," every copy is a self-proving original. So when the lawyer forwards a copy of the digitally signed document to the client, the lawyer has a self-proving original and so does the client. If the client forwards it to their spouse, another self-proving original is created. This concept is far from appealing to many classically-trained lawyers, but it is the legal position and it certainly makes it harder to lose the original!
What happens if I print a copy of the digitally signed document for my file? A print of a digitally signed document has a value similar to that of a copy. It certainly has no self-proving authority anymore. Moving away from our dependence and reverence for paper is perhaps is one of the biggest cultural shifts of all. The paperless office has been coming for 30 years but was impossible without digital signatures. Finally we are moving to an environment where the digital copy in the case management system is actually the only copy that matters because it's the real self-proving original.
The Scottish legislation has been amended to permit digital signatures for all purposes except the signature of a will. Unfortunately, changing organisational processes and systems such as those at courts does not happen overnight, irrespective of legal obligations and there is little to be gained by sending digitally signed documentation to a recipient who isn't expecting it, doesn't understand it and may be incapable of processing/acting upon it.
There is a need for courtesy in this transition stage as we change culture and when using digital signatures it is prudent and practical to work with others rather than against them.
The Scottish courts for example are working to facilitate the use of digital signatures as part of the Scottish Government’s Digital Justice Strategy.
The Society is currently tendering for a transaction platform to allow lawyers in Scotland to collaboratively work on contracts and documents in a secure workspace accessed by their digital signature cards and PINs rather than the less secure password and user name.
Email became the ubiquitous means of communication amongst lawyers and their clients not because it was fantastic technology or supremely secure, but because everyone came to realise that it was efficient, quick, reliable, beneficial and saved money and time. Digital signatures will become equally ubiquitous and the shift in culture will take place only if those similar drivers are there.
At the time of writing, around 9,000 lawyers in Scotland have digital signature Smartcards. A year ago the question from members was "What are these cards for?" Today it is "When can I get my Smartcard?" The cultural shift has already happened.