The Hedgehog and the Fox: Distinguishing Public and Private Sector Approaches to Managing Risk for Internet Transactions

In his essay The Hedgehog and the Fox, Isaiah Berlin used an ancient Greek proverb comparing these animals as a metaphor to express a deep division among thinkers and writers in their understanding of the human condition. In this essay, I extend the metaphor to contrast the differing approaches to risk management taken by the public sector in the exercise of its sovereign functions and that taken by members of the private sector in the conduct of commercial transactions. In light of the differences in these basic approaches to questions of risk management, I will evaluate some widely discussed models of public key infrastructures for administering digital signature authentication systems. The basic model most commonly discussed today can easily be assimilated to the public sector model of risk management, but does not readily permit the incorporation of the most important features of private sector risk management models. As a result, I predict that before digital signature technology will gain widespread use in business technology, further significant progress will have to be made in the design of public key infrastructures. In addition, I argue that a public sector risk management model is not appropriate for new technology distributed by private actors unless there is a consensus that such an indirect subsidy is in the public interest generally, not just in the interest of certain private promoters of the technology. Furthermore, before the public sector adopts digital signature technology, political issues outside the scope of risk management policies will have to be addressed. For example, political issues such as the degree of protection to be granted to citizens\u27 privacy rights within such an infrastructure will have to be resolved before a determination can be made whether the use of such a technology is genuinely in the public interest

The Digital Signature: Your Identity by the Numbers

Electronic commerce is the future of business. Today electronic commerce is a $3.6 billion industry. Thousands of businesses use the Internet to buy and sell their wares. As individuals and businesses increasingly use the Internet for commerce, contracts are moving online too. Because electronic commerce is conducted online, it is infeasible to make contracts through the traditional paper method. An electronic contract can be sent halfway across the world in seconds; whereas the same contract on paper would take days or weeks

What secure electronic signature technologies are permitted under the E-sign Act and UETA, and does each method provide adequate protection against electronic fraud?

This paper discusses the technology-neutral statutes that enable electronic signatures and records to be accepted in lieu of manually signed paper records. In part II, the paper focuses on the language provided by the federal Electronic Signatures in National and Global E-Commerce Act ("E-Sign Act") and the model Uniform Electronic Transactions Act ("UETA"), which states may adopt. The various electronic and digital technologies and how they work are discussed in parts III and IV. Part V describes the various positive and negative security considerations. Recommendations as to the appropriate level of security necessary for electronic transactions are offered in part VI

Emerging Issues on the Internet for the Legal Profession

The paper offers an overview of the emerging issues raised by the Internet in the legal profession. In particular, the extension of the attorney-client privilege; the application of the ethics principle of confidentiality to email communications; Internet connectivity and the security issues pertaining to it; and, general cyberlegalethics concerns raised by using the Internet, such as avoiding the unauthorized practice of law and verifying information found on the Web

Couriers without Luggage: Negotiable Instruments and Digital Signatures

Prior to the very recent explosion of interest in the Internet, for decades electronic commerce had been conducted on a large scale over closed networks. Since the late 1960s, billions of dollars in funds transfers have been executed over networked computer systems such as the Federal Reserve Wire Network (Fedwire), Clearing House Interbank Payment System (CHIPS), and the automated clearing house system (ACH); billions of dollars of goods have been sold over electronic data interchange networks. These closed, proprietary networks were built during the era of mainframe computer systems and are now being challenged by open networks of distributed client-server computer systems such as the Internet. Assimilating new technologies into existing commercial practices and business models is a daunting task. Probably for this reason, the early debate over the impact of the Internet on business practices seemingly has been dominated by those most familiar with Internet technology. Also, the early discussions of how digital signature technology may be used for business applications were apparently dominated by the technologically proficient, and surprisingly little reference was made to existing electronic commerce applications. As a result, the model of electronic commerce contained within the Digital Signature Guidelines may be of less practical relevance than its drafters hoped. This Article explores how, despite their similarity in aspiration, negotiable instruments law and the Guidelines nevertheless widely diverge in their applicability to actual business transactions. Negotiable instruments law originated in the medieval law merchant, and is the product of a centuries-long colloquy between merchants, lawyers, and courts. The doctrines of negotiability served an important role in enabling commercial transactions. By contrast, digital signature technology is a great novelty in commercial transactions. The fundamental commercial law issue raised by the Guidelines is whether legal standards should build from either a given technology or from business practices associated with the use of that technology. Because there is not yet a body of commercial practices associated with digital signature technology, if the correct protocol is the latter, then no legislation is yet appropriate. However, without some form of standardization, the lack of coordination of Internet electronic commerce systems will present an obstacle to individual transactors, and this lack of guidance may stifle the rate of adoption of the technology. The asymmetric cryptography upon which the Guidelines are based is an essential element to the operation of such a global Internet market. The Guidelines were designed to be a first tentative step from existing commercial systems to this promised land of perfect technological efficiency. This Article suggests, however, that the Guidelines may not be well-rooted enough in contemporary electronic commercial practices to provide a practical bridge from the present to perfect technological efficiency

Despatches from the Front: Recent Skirmishes Along the Frontiers of Electronic Contracting Law

This Article will provide a short overview of the current efforts in the United States and the European Union to reform contract law to accommodate recent innovations in electronic contracting. Whether changes are needed to current contract law doctrines governing contract formation, effectiveness of contract terms, choice of law and forum provisions, special protections for consumers, and signature and writing requirements, revisions in these areas have all proved controversial. Even in those areas where a consensus may be emerging on whether law reform may be appropriate in some form, consensus is often still lacking with regard to the specific legislation needed to accomplish those reforms. The United States is not the only major arena where such reforms are being debated. The EU is addressing the same problems, but taking a markedly different approach. If the United States and EU commit themselves to divergent approaches to the regulation of electronic contracting, major obstacles will be placed in the paths of businesses hoping to exploit global electronic markets. Businesses may then be forced to design their electronic commerce systems to conform to multiple, incompatible legal standards, or face the prospect of being shut out of major markets for electronic commerce services altogether