More than once in the past few months I have been told that a digital signature is not good enough for a given transaction. This has prompted me write this post, I have even waited a few weeks since the last one to mellow my anger.
I despise the interpretations of law where the “letter of the law” is more important than the “spirit of the law”. In many cases the letter of the law completely contradicts the idea of what is trying to be accomplished by passing the law in the first place. A good example is HIPPA laws forbidding the use of email while condoning the use of FAX. The spirit of the law is to prevent the use of technology that is easily intercepted. Ignoring the fact that email encryption exists, the law ignores changes in technology like the transmission of faxes over the internet, ignoring that how many nurses and others walk by the faxes before the sensitive documents are delivered to the proper person.
Now, lets clear up some terminology, a “digital signature” is a blob of electronic data that can be validated by a public key, as having been created by a unique private key, and is based on public-private key encryption. The 2 popular forms for creating these are X.509, and PGP. X.509 is used every single day by most everyone using the internet, it is the basis for SSL and TLS. Users of Window who have installed device drivers have seen these signatures (or lack there of) when presented with the “Always Trust Software From X Company” or “Install drivers anyway”. PGP signatures are used to validate the software packages of almost all Linux Systems, even if you aren’t doing it manually. These signatures are used because they are not feasible to forge (under normal circumstances) and the signing keys can be revoked should they be compromised. Furthermore, a Certificate Authority usually does some work to validate the persons identity before issuing a certificate to someone, this can often a better check than most notaries do.
An “electronic signature” is defined as a unique bit of electronic data that uniquely identifies a person. In my mind, spirit of the of the law would say that an image that anyone could surreptitiously create would not qualify.
Finally the most abused term is “e-signature”, used to describe both digital signatures and pictures of signatures on documents. With no clear usage and no clear definition, I avoid this term altogether. Instead I use the term quoted term “inked”, this is consistent with the idea that it looks like someone really signed a document with an ink pen, to mean either a real signature with ink, or an image of it, and “digital signature” to indicated the encryption based, signatures.
Now an “inked” signature on a fax are extraordinarily easy to forge, all that is needed is an example of a signature. This could be as easy as picking up a signed credit card receipt, signature ink stamps, or an image of a signature saved unencrypted on a harddrive to send on faxes (yes I know people who do this). Once an image is obtained, it is a very simple task to superimpose a signature on a given document, and send it via fax. Someone out there reading this is saying “that can’t be, it would be easy to tell”, well fax is a very low resolution so any ametuer can pull it off with ease, and since it is a simple black and white manipulation, you don’t have be able to put Britney Spears’ head on a porn stars body and make it look reasonable to make this work. Even if you know that someone is out there forging your signature, you can’t revoke it, and create a new one.
Given the ease of making these manipulations, you would hope that they would at least require the documents to be notarized before allowing the signed documents to be binding. No, they aren’t. Someone in another town could forge your signature send it off and these groups would take it as legally binding.
Knowing all of this, and knowing that my state (along with most others) recognize digital signatures as legally binding, I sent the corporations in question a digitally signed document, and they refused, insisting that I fax them an “inked” signature, without requiring notarization. This is purely a misunderstanding on the legal teams part as to the spirit of the law vs the letter. Somehow they think that they are covering themselves legally should the document be challenged. Any good lawyer should be able to show how easy it is to forge these signatures.
If I had the time, energy and money I would love to challenge the validity of these documents.