ABCD

Electronic Communication

Legislation

Mark Heyink6th November 2002

Mark Heyink

Mark Heyink

The Uncertainty In Our Law

Three important factors affecting jurisprudence: – Accelerating speed of change challenges our ability to

create law by ‘traditional’ methods – Novel concepts and legal personalities challenge precedent

and the physical paradigm in which they were created– Globalisation challenges our concept of sovereignty and

requires collaboration in law making

These uncertainties will prevail beyond our lifetimes

Uncertainty equals risk

We have to manage this risk!

Mark Heyink

Risk Management

A different approach to the legal challenges of the knowledge age

Pro Active, inter-disciplinary management of the legal risks and not the consequences of the risks

One of the risks is the uncertainty in the law

Awareness is the most important tool against any risk

Mark Heyink

IT Governance

King II for the first time places the responsibility of IT governance at board level

Compliance with new laws critical

King II also specifically recognises that there will be deficiencies in our law that will require ‘self-governance’

Access to information not purely an IT issue but there will be a high and increasing dependency on IT

“In today’s economy and, and with the reliance on IT for competitive advantage, we simply cannot afford to apply to our IT anything less than the level of commitment we apply to overall governance”- IT Governance Institute

Mark Heyink

Electronic Communications and Transactions Act

Sect 11 the most significant section in the Act:

– “Information is not without legal force and effect merely on the grounds that it is wholly or partly in the form of a data message”

Data message:– data generated, sent received or stored by

electronic means and includes– Voice …where used in an automated

transaction– A stored record

Mark Heyink

“Writing, Original and Retention”

The Uncitral Model Law is followed

All allow for information to be in the form of a data message as long as it can be displayed or produced and the integrity of the data message is maintained

How is the integrity of data messages maintained?

Digital signatures serve the same purpose in identifying, author, verification, acknowledgement and assent as handwritten signatures do. But they do more. They also provide assurance as to the source and integrity of the communication which handwritten signatures do not

“A digital signature ….is to this extent superior to a handwritten signature”- Thomas J Smedinghoff

Mark HeyinkSignature

Electronic signature: -– data attached to , incorporated in or logically associated with other data, which is

intended by the user to serve as a signature

Advanced electronic signature: - (digital signature)

– An electronic signature which results from a process… accredited under sect 38 or recognised under sect 40

Sect 13(2): -– Subject to subsection (1) an electronic signature is not without legal force and

effect

Sect 13(1): -– Where the signature of a person is required by law …, that requirement in relation

to a data message is met only if an advanced electronic signature is used

Mark Heyink

Signature Amendments

13(1) “Where a signature is required by law and such law does not specify the type of signature…”

“Where an electronic signature is not required… an expression of intent is not without legal effect merely on the grounds that

(a) it is in the form of a data message…”’

Mark Heyink

Difficulties

One of the few areas where the Uncitral Model Law is deviated from

The deviation is based on a misunderstanding of the electronic signatures

The unfortunate result will be the undermining of the stated objects of the Act

There is no accreditation authority at present and no indication has been given as to when it will come into operation or how it is to operate

Mark Heyink

Admissibility and Evidential Weight

Computer Evidence Act repealed !!!!!!

“…the rules of evidence must not be applied so as to deny the admissibility of a data message in evidence –

– a) on the mere grounds that it is constituted by a data message; or– b) if it is the best evidence that the person adducing it could reasonably be

expected to obtain on the grounds that it is not in its original form”

In assessing evidential weight regard must be given to: -

– Reliability in generation, storage or communication– Reliability of integrity of data message was maintained – Reliability of manner of identification of originator– Any other relevant factor

Mark Heyink

Communication of Data Messages

Deals with– variation by agreement between parties– formation and validity of agreements– time and place of communications,

dispatch and receipt – attribution of data messages to the

originator

Mark Heyink

Cryptography

D.G. of the Dept of Communications to establish and maintain a register

Name , address, description of service or product

Information required to locate the products or services

Mark Heyink

Authenication Service Providers

D.G of DoC to establish Accreditation Authority

Accreditation stated to be voluntary but de facto compulsory due to sect 13(2)

Places obligations on Authentication Service Providers to register and can revoke registration

Must comply with sect 38:– Uniquely linked to the user– Capable of identifying the user– Means of creation under sole control of the user– Linked to data message in that subsequent changes can

be detected– Based on face to face identification

Mark Heyink

Protection of Critical Databases

The Minister may identify databases as being critical and then prescribe

– minimum standards in respect of their management

– Access to and control of databases– Infrastructural and procedural rules for securing

integrity and authenticity of data– Manner of storage and archiving– Disaster recovery plans

D G may audit by “cyber-inspectors” or independent audit

Non Compliance : Critical database administrator guilty of an offence

Mark Heyink

No International Equivalent

USA –Critical Infrastructure is sought to be protected by an Executive Order

– President Clinton in seeking public private sector co-operation -“We cannot mandate our goals through Government regulation. Each sector must decide for itself what practices … are necessary to protect its key systems”

Post 11 September– 16th October 2001 Pres. Bush - ” The implementation of this policy shall include

voluntary public–private partnership …”

Australia National Information infrastructure– “…government places great importance on working with the private

sector …”

New Zealand– Calls for the establishment of an ongoing co-operation programme between the

owners of critical infrastructure and the government

Mark Heyink

Financial Intelligence Centre Act

Anti Money Laundering Legislation

Attorneys are an accountable institution

So are many of our clients

Will we be able to manage the records icw FICA?

What about our conveyancing software, can we give the banks the information that they will need on their clients?

Mark Heyink

So What!

King II

The ECT Act will affect us all in many ways

Financial Intelligence Centre Act

PROATIA

Interception and Monitoring Bill

Privacy and Data Protection

Mark Heyink

The Client

Expects nothing less than absolute confidentiality

We represent attorney and client privilege as a distinguishing factor

Do we always ensure safety in communication?

How do we manage internal email?

Are our databases secure?

Are we able to ensure the most up to date information and advice at a competitive price?

Mark Heyink

The Lawyer

Reliable information is our life-blood

Why are so many lawyers petrified of the most fantastic knowledge tools ever devised?

Can we understand the new digital age and advise clients without being part of it?

Is a fresh approach necessary?

Mark Heyink

The Firm

King II report: - the governance of IT is the responsibility of the directors/leaders of the firm

Do we accept this responsibility or are we too busy to do so?

To what degree are we looking for the opportunities that the knowledge revolution holds for us? Are we the barriers to change?

Do we understand the information risks of the new age? Do we use them as an excuse?

Mark Heyink

The Organised Profession Is the most important economic and social

development of the new millennium being ignored by our leaders?

Education and awareness, is enough being done?

Does the profession encourage and assist practitioners in the use of technology?

Does it interact with vendors?

Does it interact with government on legislative reform?

Does it interact with the relevant ministries on administration of justice issues?

The “law society as a certification authority and a regulator?

Mark Heyink

Information Security

The dependency that most entities will have on their information and technology will demand a high premium on managing the risks that may impact upon it

Given the deficiencies in the law and demands made by the law it is important that information security is implemented

IS will provide one of the most reliable methods of managing the risk and maximising the opportunities

Mark Heyink

Mark Heyink

mark.heyink@kpmg.co.za

011 454 0449

082 904 3774

Thank you