Electronic records and their discontents

Otto Doll

Since South Dakota enacted the Uniform Electronic Transaction Act (UETA) early last year, my agency has been drafting administrative rules for the state's use of electronic signatures. Our goal is to establish for electronic documents the legal equivalence of paper ones with pen-and-ink signatures. This would remove barriers to electronic commerce.

Most states and the federal government have enacted similar laws, but the administrative rules haven't caught up. That's because it's hard for electronic records to fulfill all the functions of paper documents.

Choosing the manner and format in which electronic records should be created, communicated, received and stored is the easy side of electronic commerce. Ensuring electronic records and signatures hold up in court is the hard part.

Not only do governments need strong controls and procedures for electronic records, they must also ensure that systems carry out all the functions of ink on paper. Specifically, states must address the issues of agreements or conditional circumstances, media preservation and static information found on forms.

Look at the forms state governments use today. You'll see many printed conditional statements. But the electronic records that states are building often leave out this material. Our information systems have replaced paper forms with ever-changing input screens that capture only answers to questions and electronic signatures.

But conditional statements can be pivotal in court proceedings. Without the physical paper form by which the court can see what an individual agreed to, state databases must make allowances for their users' understanding of the terms and conditions of electronically signed documents.

Ultimately, any agreements or conditional statements unique to a transaction, as well as its electronic signature, must be firmly linked to the transaction for the entire time the state retains the electronic record.

Paper lasts a long time, but our electronic environment changes at lightning speed. Not only does electronic media evolve, as in the switches from 5.25-inch floppies to 3.5-inch diskettes to CD-ROMs, but the hardware and software systems that read such media become obsolete, often after a single product generation.

Will state lawyers be able to prove a document-related case if a copy of the transaction is no longer available? To preserve future accessibility to electronic records in such circumstances, records must be archived in a format that can be read by available technology. Agencies must keep electronic records available by periodically migrating data to new hardware or converting new hardware and software to read old files.

Finally, take one last look at your state's forms. Note all the static information lurking around the data fields. Does knowing the precise wording of a question or statement on a form make a difference in court?

I don't think agencies should take a chance. Any static information unique to a transaction or its electronic signature must be bound to the agreement for as long as the government keeps the electronic record.

If states map paper record attributes over to their electronic records and electronic signatures, they will meet the burden of proof that the records must support. We can declare success when courts no longer distinguish between paper and electronic records.

Otto Doll, South Dakota's chief information officer, formerly worked in federal information technology and was president of the National Association of State Information Resource Executives.


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