1. Paperless Government and the Law John D. Gregory Ministry of the Attorney General June 5, 2009

2. Paperless Government and the Law 2 Overview Authority Legitimacy Legislation Documents Signatures Evidence Authentication Standards Regulation

3. Paperless Government and the Law 3 Authority The Crown has powers of a natural person Therefore it can use electronic communications For greater certainty (and for public bodies with only statutory powers), Electronic Commerce Act, 2000 Special statutes for special uses Electronic registration, filing etc.

4. Paperless Government and the Law 4 Legitimacy Besides the general criteria applicable to public and private sectors - security, authenticity, efficiency – the state faces additional demands: Protection of personal information Fair use of e-communications Access to information Truthfulness History (archivability) Public acceptability (model user)

5. Paperless Government and the Law 5 Legislation Electronic Commerce Act Minimalist Media-neutral Technology neutral NOTE: ‘legal’ does not mean ‘prudent’ Security standards required Do not need to be better than paper

6. Paperless Government and the Law 6 E-documents Equivalent of writing: accessible so as to be usable for subsequent reference Provision: that plus can be printed or stored Originals: reliable assurance of integrity (i.e. not changed) Retention: integrity plus accessibility as required Public bodies’ IT requirements

7. Paperless Government and the Law 7 Signatures Basic function: link between information and person (legal entity) Form does not show function Lots of flexibility (so: prudence?) ECA: where law requires a signature, e- signature will do. Allows regulation re reliability – none has been made (or asked for) Public bodies’ IT requirements Some examples Faxes, retransmissions, loan applications

8. Paperless Government and the Law 8 Signatures - incoming How do we know who it’s from? Abolish signature requirement Close the system Use proxies Outsource the signature Designate the technology informally Designate the standards for particular programs

9. Paperless Government and the Law 9 Signatures - outgoing How do you know it’s official? Define the problem away Designate a secure accessible source of data (unique identifier) Require secure signatures (e.g. PKI) Use a secure token of identity

10. Paperless Government and the Law 10 Evidence – the basics Admitting documentary evidence: authentic – the record is what it purports to be best evidence – an original, or an explanation not hearsay (a content rule not a form rule) reliable and necessary business records rule statutory records rules Ontario Evidence Act, Canada Evidence Act

11. Paperless Government and the Law 11 E-Evidence – the basics Electronic documents – how does this change? Authenticity: basic rule is OK – document supported by live witness – but e-documents can be more subject to manipulation. May be asked why the witness believes the record is accurate. Original (best evidence): may be meaningless for electronic document. Changed by legislation from a record-based test to a system-based test Hearsay: no change in principle – because content does not change with the medium. Often “ordinary course of business” test.

12. Paperless Government and the Law 12 Evidence – authentication To ease admission, the law provides presumptions that the record-keeping system has integrity: for one’s own computer, OK if one can show the computer was working fine all the time, or if it wasn’t, the problem did not affect the integrity of the record-keeping system for a record from an adverse party’s computer, OK (since the other party knows more about it) for a record from an independent third party, OK if kept in the ordinary course of business.

13. Paperless Government and the Law 13 Evidence – standards If the presumption is rebutted, so one has to show the integrity of a record-keeping system: For the purposes of determining under any rule of law whether an electronic record is admissible, evidence may be presented in respect of any standard, procedure, usage or practice on how electronic records are to be recorded or stored, having regard to the type of business or endeavour that used, recorded or stored the electronic record and the nature and purpose of the electronic record. (Evidence Act s.34.1(8))

14. Paperless Government and the Law 14 Evidence – standards CGSB Standard on Electronic Records as Documentary Evidence (2005) The key rule of the Standard: think about it! In other words: Make a policy about how e-records are managed Communicate the policy Implement the policy Monitor compliance with the policy Adjust the policy as required by circumstances Have a policy manual that you can point to. Have an audit trail Have someone responsible (CRO) (+ witness)

15. Paperless Government and the Law 15 Regulation “The cyberspace is not a no-law land” But: where is anything? Direct application – finding jurisdiction Intermediaries Financial Technological Other Virtual communities Codes and standards Legal and technical

16. Paperless Government and the Law 16 Conclusion Paperless government is not a legal problem Need advice on how to comply with legal framework, but framework is very flexible. Lots of non-legal challenges Prudence Security Interoperability Rest of today’s program …

17. Paperless Government and the Law 17 Sources ”Solving Legal Problems in Electronic Government: Authority and Authentication” (2002) 1 Can Jl of Law and Technology No. 1 p. 1 http://cjlt.dal.ca/vol1_no2/pdfarticles/gregory.pdf ”Solving Legal Problems in Electronic Government: Jurisdiction, Regulation, Governance” (2002) 1 Can Jl of Law and Technology No. 2 p. 1 http://cjlt.dal.ca/vol1_no3/pdfarticles/gregory.pdf Various articles on electronic records and the law http://www.euclid.ca