Essay for Scribd

8/7/2019 Essay for Scribd

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MODULE I: ELECTRONIC COMMERCE

"WOULD IT BE TRUE TO SAY THAT, USEFUL THOUGH THEY

MAY BE, DIGITAL SIGNATURES ALONE CANNOT OVERCOME

THE LACK OF CONFIDENCE THAT ASSAILS THE

DEVELOPMENT OF B2C

E-COMMERCE" DISCUSS


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"WOULD IT BE TRUE TO SAY THAT, USEFUL THOUGH THEY MAY BE, DIGITAL SIGNATURES ALONE CANNOTOVERCOME THE LACK OF CONFIDENCE THAT ASSAILS THE DEVELOPMENT OF B2C E-COMMERCE" DISCUSS

Essay by Alice Lwanga: End of Module I; Electronic Commerce, 24th January 2003

TABLE OF CONTENTS

INTRODUCTION

PART I: BACKGROUND TO DIGITAL SIGNATURES

What is a Digital Signature?

Functions of Digital Signatures

Nature of Digital Signatures

I Digital Signatures and Public Key Cryptography

II Digital Signatures, Digital Certificates and Authentication

Advantages of Digital SignaturesComparison of Digital and Handwritten Signatures

PART II: PLACING DIGITAL SIGNATURES IN A LEGAL

FRAMEWORK

Legislation

Case Law

PART III: OBSTACLES TO THE GROWTH OF B2C E-COMMERCE

Shortcomings of Digital signaturesObstacles to the development of B2C e-commerce

PART IV: THE FUTURE OF DIGITAL SIGNATURES AND B2C E-

COMMERCE

CONCLUSION

BIBLIOGRAPHY

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SUMMARY

This essay agrees with the assertion that "Useful though they may be, digital signatures alonecannot overcome the lack of confidence that assails the development of B2C e-commerce".

Part I embodies a brief introduction, describing the nature, functions and benefits of digital

signatures, essentially depicting how they are useful in B2C e-commerce.

Part II examines the legislation establishing, enforcing and relating to digital signatures.

Part III addresses the disadvantages of digital signatures showing how digital signatures alone

cannot overcome the lack of confidence that assails the development of B2C e-commerce. By

highlighting other factors that contribute to lack of confidence in B2C e-commerce, this essay

clearly encompasses the need for a lot more than digital signatures to boost the confidence

required to further B2C e-commerce transactions.

Part IV concludes the essay by considering the future of digital signatures in particular and B2C

e-commerce in general.

INTRODUCTION

The exponential growth of the Internet and subsequently electronic commerce

(E-commerce) has increased the efficiency of businesses and consumers seeking to purchase

goods, services, or intangibles by placing these objects just a keystroke away. This has fuelled

both the desire and potential for both business-to-business (B2B) and business-to-consumer

(B2C) transactions across open networks. However, doing business electronically over

cyberspace, breeds issues of confidentiality, identification and trust and has increased the risk

of exposure to unfair market practices, insecure means of payment, loss of privacy and the

lack of enforceable remedies. Thus sparking off a legal debate, primarily in the context of

security, in terms of the security and confidentiality of information passed on between parties

and the security and certainty of knowing with whom one is doing or about to do business with.

To combat this problem, digital signatures have arisen. For B2C e-commerce to flourish, a

reliable form of digital signatures is critical as a means towards defining and creating online

enforceability of cyberspace trade. However digital signatures alone, cannot overcome the lack

of confidence that assails the development of B2C e-commerce.

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PART I: BACKGROUND TO DIGITAL SIGNATURES

What is a Digital Signature?

Numerous scholars and legislators have attempted to define the term digital

signature and many bodies, organisations and countries worldwide have adopted

different definitions of digital signatures.

The PC Webopaedia (Definition and Links) defines a digital signature as

"A digital code that can be attached to an electronically transmitted message that

uniquely identifies the sender."1

The Directive of the European Union2, describes a digital signature as

a signature in electronic form in, or attached to or logically associated with data and used

by a signatory to indicate that signatorys approval of the content of that data and which

meets the following requirements -:

(a) is uniquely linked to the signatory

(b) is capable of identifying the signatory

(c) is created using means that the signatory can maintain under his sole control and

(d) Is linked to the data to which it relates in such a manner that it is revealed if the datais subsequently altered."

According to Article 1 (b) of the Italian Digital Document Regulations of 10th

November 1997 3 a digital signature is defined as

12Proposed on May 13,19983Also known as the Presidential Decree 513 of 1997

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The result of the computer procedure (validation) based upon a system of

asymmetric keys4 in pair, one public5 and one private6, which allows the subscriber, by

virtue of

The private key to (i) manifest and (ii) verify the origin and integrity of a computer

document or a set of documents

This definition was further refined in the Italian legislation; Presidential Decree No.

445 of December, 2000, (Consolidation Act) which describes a digital signature as

the result of a computer based process (validation) implementing an asymmetric

cryptographic system consisting of a public and private key, whereby the signer

asserts, by means of a private key, and the recipient verifies by means of a public key,

the origin and integrity of a single electronic document or a set of such documents".

According to the Electronic Signatures (in Global and National) Act7, a digital

signature is

"A secure electronic signature which uses encryption and passwords to protect the

integrity of the signature and guarantee the authenticity of the party who signed it".

Digital signatures can therefore be described as electronic signatures based on public

key cryptography. However, it is important to note that although a digital signature is

an electronic signature, an electronic signature is not necessarily a digital signature.The clear difference between electronic and digital signatures is depicted by the

table below.

Electronic

signature

Every way of authenticating data by means of information technology.

Examples of

Electronic

Signatures

Digital Signatures Protocols based on asymmetric encryption which can ensure the

authenticity and integrity of electronic data.

Examples of

Digital

Signatures

Blind Signatures Digital signature protocol which allows a person to sign a

document without knowledge of the contents of the document.

4Article1 (d) defines these as the pair of crypto graphic keys, one private and one public, complementingeach other, to be used within systems of validation or encrypting of electronic documents.

5Article 1 (f) pubic key means the item, within an asymmetric key pair, that is meant to be made publicand that is used to verify the digital signature affixed to electronic documents by the holder of theasymmetric keys or to encrypt electronic documents for transmission to the holder of the asymmetrickeys.6Article 1 (e) means the item of the asymmetric keys pair that is meant to be known only by the holder,either the digital signature is affixed on the electronic document or the electronic document previouslyencrypted with the corresponding public key is decrypted.7Act 2000, (E-Sign Act)

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ii Integrity

Digital signatures protect the integrity of the document making it possible to

know that the message read has not been changed.

iii Non-repudiation

Digital signatures ensure that it can be proved at a later time who participated in

the transaction so that it is evident who sent or received the data.

iv Authority

Digital signatures determine the authority of the signing party.

v Legal commitment

Due to the development of Digital signatures, consumers and/or buyers and

merchants and/or sellers doing business online can sign documents in a legally

binding fashion.

Nature of Digital Signatures

"Several different methods exist to sign documents electronically, varying from simple

methods such as inserting a scanned image of a handwritten signature in a word

processing document to the use of cryptography"12

There are two major types of cryptography used in digital signatures namely

symmetric cryptosystem and asymmetric cryptosystem. Through the use of

cryptography, communications and information stored and transmitted by computers

can be protected against interception,13 thus enhancing B2C e-commerce by ensuring

that the privacy of online shoppers is well protected.

12A Common Framework for Electronic Signatures, Computer Law & Security Report Vol.15 No.2 1999, pp

106- 11213M.S. Baum (1999) "Technology Neutrality and Secure Electronic Commerce: Rule Making in the Age of'Equivalence'", Verisign Inc.1999

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I

Digital Signatures and Public Key Cryptography

"A customer making an on-line purchase simply transmits at the push of a button a

three tiered computer message containing a special decoder key; a message with the

goods

that are being purchased and their pricing; and a digital certificate", which contains

the user's identity, partial credit card number and the Bank that issued the customer's

credit card. The merchant uses the key to unlock the message, and uses the certificate

to verify the identity of the buyer and the buyer's credit. Once the buyer is deemed

legitimate, the purchase is put through and a bill is sent.......Thus a card thief would

not only have to gain access to a holder's credit-card number, but would also have to

gain access to break the digital keys to make the purchase"14

A digital signature results from the association of three essential elements namely a

document, an encryption technique and a certificate. The encryption and the

certificate are essential for identifying the author and guaranteeing the

authentication of the document.

The most common encryption used by digital signature technology is public key

encryption techniques (PKI); using two encryption keys known as private and public

keys. Whereby the signatory of the document(s) and/or communication(s) encrypts

them by means of a private key. The recipient then deciphers the coded message

using the public key. The recipient can on receipt of the document check the identity

of the signatory and verify the integrity of the message by calculating the impression

and comparing it with that which is deciphered. Where the two are identical it means

that the content has not been tampered with15.

II Digital Signatures, Digital Certificates and Authentication

Authentication is an essential requirement to enforce access control, determine who

is authorised to receive or modify information, enforce accountability and achieve

14Jared Sandberg, "Visa to Introduce Codes to Protect On-Line Purchases", Wall Street Journal, Sept. 22 at

B2.15

Alexandre Menais and Sophie Des Courtiis "Electronic Signatures in France" - COMPTLR 2002, 8 (8) 204-205

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non repudiation.16 Digital signatures, authenticated with reference to

certificates administered within a public key infrastructure bear tremendous

promise as

a solution to the problem of establishing the identity of parties doing business incyberspace.

The Certification Authorities role is to authenticate the ownership and characteristics

of the public key ensuring that it can be trusted. Once the Certification Authority is

satisfied that it is correct, it will issue a certificate containing the key and other

details.17

The certificate will be digitally signed with the Certification Authority's private key to

establish the correlation with the key owner. When the Certification Authority's publickey is added, a simple automatic verification is possible. Consequently the recipient

must have confidence in the Certification Authority18 and it is essential for

Certification Authorities to trust each others authority. Therefore, there exist methods

of certifying the Certification's Authority's identity and authenticity of the issued

certificate (self-certification, cross-certification and root).19

Once the Certification Authority has verified the identity of the signatory, anyone who

reviews the certificate may rely on it unless it has been publicly revoked. If the

certificate is incorrect the Certification Authority may be held liable for any damages

incurred by the recipient.

The use of technology in relation to trusted third parties provides an efficient system

of establishing a secure and user friendly environment for B2C e-commerce.

Advantages of Digital Signatures

As depicted by my essay so far, it is evident that digital signatures offer better

security, reliability and transparency in B2C e-commerce by minimizing the risk of

16Ford W & Baum M S (1997) "Secure Electronic Commerce: Building the infrastructure for digital

signatures and encryption" (Prentice Hall, Inc., New Jersey) at pp 12617Jane K. Winn, "The Emperors New Clothes: The Shocking Truth about Digital Signatures and InternetCommerce", Idaho Law Review Symposium on The Uniform Electronic Transaction Act (UETA).

18 John Angel and Rico Colleja "European Commission: Computers-Encryption", COMPTLR 1998, 4(2), N25-27.19 Ibid.

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fraud, or persons who attempt to escape responsibility by claiming to have been

impersonated. They satisfy the need for message integrity by preventing

unauthorized access to data, detecting any message tampering and diminishing the

danger of online malpractice. Therefore open network systems can be gratified with

efficiency in data interchanges

between businesses and consumers promoting cost effective and safe information

exchange that respects the consumers' right of privacy. 20

Comparison of Digital and Hand Written Signatures

Digital signatures share a likeness with their physical world counterpart such as: -

Both provide security by way of authentication, data integrity, and non-repudiation.

Both have legal standing.

However there are numerous dissimilarities between Digital and Hand written

signatures as envisaged below21: -

A handwritten signature is biologically linked to a specific individual, whereas

a digital signature relies on a private signature key and procedures

implemented by a Certification Authority.

Handwritten signatures are under the direct control of the signer, whereas

digital signatures must be applied by a computer command.

The mechanisms of forgery and the detection of such forgery are

fundamentally different.

The data integrity service provided by digital signatures is much stronger than

that provided by handwritten signatures.

20Spyrelli, C, "Electronic Signatures: A Transatlantic Bridge? An EU and US Legal Approach Towards

Electronic Authentication", The Journal of Information, Law and Technology (JILT) 2002(2)

21

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Handwritten signatures can be witnessed, whereas digital signatures can only

be notarized.

Handwritten signatures can be verified in perpetuity, whereas digital

signatures will soon become unverifiable due to data processing equipment

and cryptographic standards obsolescence and certificate expiration.

Handwritten signatures are inherently secure against repudiation whereas

digital signatures require third party time-stamping to augment their non-

repudiation security service.

Handwritten signatures are all roughly equivalent in the level of security they

provide. While digital signatures vary widely in the strength of the security

services they offer, depending on the certificate policy associated with the

signer.

Handwritten signatures are simple and easy to understand. Digital signatures

are fiendishly complex, involving arcane number theory, the workings of

computer operating systems, communication protocols, certificate chain

processing, and certificate policies.

Following from the above therefore, it is evident that digital signatures are indeed

useful in B2C e-commerce to encourage consumers to trust and have confidence in

online transactions, by providing an avenue through which e-documents and/or data

can be sent from one party to another with an assurance of identity, authenticity,

integrity, and non-repudiation. However, without legal remedies for the flaws of

online transactions, privacy, security, and numerous other ingredients that will be

discussed later on in my essay, digital signatures cannot solve the predicament of

the lack of confidence that assails the development of B2C e-commerce.

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PART II: PLACING DIGITAL SIGNATURES IN A LEGAL

FRAMEWORK

Digital signatures are widely recognised as imperative for the development of e-

commerce and the ability to make binding, trustworthy and non reputable contracts

online. Legislators have developed three basic approaches for Digital Signature

legislation specifically: -

i The Minimalist approach

This approach aims at uniform use, recognition and enforceability of digitalsignatures by removing legal obstacles from online commerce, avoiding new

regulations and establishing a technology-neutral status (e.g.) UNCITRAL Model Law

on Electronic

Commerce, UETA and E-SIGN.22 Legislation that follows this approach defines

circumstances under which electronic signatures will fulfil the existing legal

requirements for tangible signatures.

ii The Prescriptive Approach

The Prescriptive approach creates a legal framework for the operation of digital

signatures whether or not other forms of secure authentication are allowed.

Legislation and regulations embodied in this approach require public key encryption,

impose certain operational and financial requirements on Certification Authorities and

specify circumstances under which reliance on digital signatures is justified. The

focus centres on the establishment of a legal framework for the operation of digital

signatures as well as a reflection of formal requirements applicable in offline

transactions23. International regulations under this approach adopt PKI as the

approved technology of generating digital signatures (e.g.) ABA -Digital Signature

22Spyrelli, C, "Electronic Signatures: A Transatlantic Bridge? An EU and US Legal Approach Towards

Electronic Authentication", The Journal of Information, Law and Technology (JILT) 2002(2)23 ibid

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Guidelines24and EU wide standardisation initiative (EESSI)25.This approach aims at

ensuring that digital signatures can fulfil the

requirements of identification, authentication and non repudiation in e-commerce, inthe most reliable way.

iii The two tier approach

This approach creates a general framework for electronic authentication but also

specifies standards for the use of digital signatures granting minimum recognition to

most authentication technologies while at the same time incorporating provisions for

digital signatures. It provides time resistant regulations by setting requirements for e-

authentication methods with minimum legal power, attributing greater legal effect towidely used techniques. It does not specify only one technology but leaves room for

future technologies to develop 26 (e.g.) UNCITRAL Model Law on Electronic Signatures.

Legislation

"The legal significance in a signature does not lie in the form of the signature but in

the information it conveys"27

Due to the fact that electronic commerce provides new ways to commit old crimes,28

and numerous statutes require certain contracts to be in writing, there has been an

explosion of legislation worldwide that has codified digital signatures into law. For

example Germany has introduced the Digital Signature Law, France has enacted a

law introducing trusted third parties, Belgium, Italy and Sweden have also introduced

similar legislation. In Latin America, Colombia has approved a digital signature law.

2425

Spyrelli, C, "Electronic Signatures: A Transatlantic Bridge? An EU and US Legal Approach TowardsElectronic Authentication", The Journal of Information, Law and Technology (JILT) 2002(2)26 Spyrelli, C, "Electronic Signatures: A Transatlantic Bridge?An EU and US Legal Approach Towards Electronic Authentication", The Journal of Information, Law andTechnology (JILT) 2002(2)27Vaughan J., Stewards, T., Kelso R., "Study of the Law of Internet Commercial Transactions" (1997) at p 3428Swindells C et al, "Legal Regulation of Electronic Commerce" 1998 (3) The Journal of Information, Lawand Technology (JILT)

27

28

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And Israel has published a bill that regulates signatures on electronic media such as

e-mail and e-commerce. All of these examples demonstrate that digital signatures

are gaining

momentum, validity and legality for use in electronic business transactions in general

and B2C e-commerce in particular.29

Having browsed through the various approaches that digital signature legislation can

take as illustrated above, I shall take a brief glance at a few examples of significant

legislation introduced by the United Nations, United Kingdom and United States that

provide for, promote and/or regulate the use of digital signatures, thus facilitating

B2C e-commerce.

UNCITRAL (United Nations Commission on International Trade Law) Model Law on

Electronic Commerce 1996 30

In June 1996 the Model Law was completed by UNCITRAL and approved by the

General Assembly by non-vote resolution, for regulating electronic commerce. It is

similar to the US proposal for a Commercial Code however; its effects are not

binding. The onus is upon individual nations to adopt legislation based on the US

model.31

Articles 5 provides that

"Information shall not be denied legal effect, validity or enforceability solely on

grounds that it is in the form of a data message"

Art 7(1) states that

29UNCITRAL Model Law on Electronic Commerce with Guide to Enactment (1996) U.N. Doca/cn.9/ser.a/199630

31

Swindells C et al, "Legal Regulation of Electronic Commerce" 1998 (3) The Journal of Information, Lawand Technology (JILT)

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"A data message meets the legal requirement of a signature if a method is used to

identify the person and indicates the person's approval of the contents of the message

and that method is as reliable as appropriate under the circumstances"

The Electronic Signatures Directive

This legislation was introduced by the European Union (EU) as a Signature Directive 32

and lays down the minimum requirements for digital signature certificates and

certification services and requires legal recognition of digital signatures to the same

extent as written signatures, especially in cross border transactions. It also

distinguishes between electronic signatures in general and advanced electronicsignatures. In brief 33 it gives legal recognition to digital signatures and also

envisages co-operation with third countries to enable the recognition of digital

signatures that have been certified by a Certification Authority in a third country,

provided that the Certification Authority meets the requirements of the directive or

is situated in a country which has negotiated an agreement with the EU.

The Electronic Communications Act 2000 (ECA)

This Act by virtue of Section 7 provides for the admissibility of digital signatures andrelated certificates in legal proceedings.

United States Legislation

U.S. legislation aims at uniform use, recognition and enforceability of digital

signatures by establishing a technology-neutral status, removing legal obstacles from

online commerce, and avoiding new regulations.

321999/93/EC...on a community framework for electronic signatures which came into force on 19th January2000 with the primary objective of discouraging the divergence between various states treatment ofelectronic signatures and in particular creation of barriers to free trade within the EU

33the definitions being as follows

1) electronic signature means data in electronic form which are attached to or logically associatedwith other electronic data and which serve as a method of authentication;

2) advanced electronic signature means an electronic signature which meets the followingrequirements:a) it is uniquely linked to the signatoryb) it is capable of identifying the signatoryc) it is created using means that the signatory can maintain under his sole control; and

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Electronic Signatures in Global and National Commerce Act (Electronic Signatures

Act)

In 2000, Congress enacted the Electronic Signatures in Global and National

Commerce Act (Electronic Signatures Act-E-SIGN)34 which provides for a

federal legal framework for e-commerce. It provides the basic rule of digital

signatures and electronic contracts by making them applicable

notwithstanding any statute, regulation or rule of law. It establishes that a

signature related to interstate or foreign transactions cannot be denied legal

effect because it is in electronic form, subject to certain exceptions. E-SIGN

seeks to promote electronic commerce by permitting and encouraging the use

of electronic records and signatures in transactions in interstate and/or foreign

commerce."35 Generally, E -SIGN provides that, with respect to any

transaction36 within its scope, a signature, contract or other record relating to

the transaction may not be denied legal effect, validity or enforceability solely

because it is in electronic form.37 Similarly, E-SIGN provides that a contract

relating to such transaction may not be denied legal effect, validity or

enforceability solely because an electronic signature or electronic record was

used in its formation38

Uniform Electronic Transactions Act (UETA)39

UETA establishes that where a law requires a signature, an e-signature (sound,

record, or process attached to or logically associated with a record and executed or

adopted by a person with the intent to sign the record) will suffice. An e-signature is

attributable to a person if it can be shown in any manner to be an act of the person.

34Electronic Signatures in Global and National Commerce Act, Pub. L. No. 106 -229, 114 Stat.464 (200035Joseph. A. Zavalette, J.D.,"Using E-Dispute Technology to Facilitate the Resolution of E-Contract Disputes:A Modest Proposal", University of Florida Journal of Technology Law and Policy, June 2002, Vol 7, no 1.

E-SIGN preamble36E-SIGN section 106(13) [15 U.S.C. 7106(13)] defines the term "transaction" generally to mean "an actionor set of actions relating to the conduct of business, consumer or commercial affairs between two ormore persons."37E-SIGN section 101(a) (1) [15 U.S.C. 7001(a) (1)]. Note, however, that section 101(e) of E-SIGN [15 U.S.C.

7001(e)] provides that legal effect, validity or enforceability may be denied to a contract or otherrecord required to be in writing that is kept in electronic form if the electronic record is not in a formthat is capable of being retained and accurately reproduced for later reference by all involved parties38

E-SIGN section 101(a) (2) [15 U.S.C. 7001(a) (2)]39State initiative developed by t he National Conference on Commissioners on Uniform State Laws in July1999 - as of September 1, 2001, adopted by twenty three (23) states

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Despite the widespread support that electronic commerce has received fromgovernments worldwide, a certain degree of uncertainty remains regarding the legal

validity of online transactions such as the conclusion and repudiation of online

contracts. Digital signature legislation should seek efficient and just solutions to the

facilitating of electronic form and means.40

Case Law

"There has been no case law challenging whether a digital signature is legally

binding.....Everybody's fear is that some piece of the puzzle would lead some party in the deal toget stuck with a transaction that doesn't have money on the other side" Larry Zanger, Chairman

of McBride Baker& Coles, a Chicago - based IT and e-commerce law firm. 41

One case which supports the use of digital signatures is the first English decision

about electronic signatures; the case of Standard Bank London Limited Vs Bank of

Tokyo Limited 42 where it was clearly established that where a system of reliance on

electronic signatures is well established, the courts will consider this and place the

burden upon the holder of the key to take every possible precaution to ensure

against misuse or fraud of the key and not on the party receiving the authenticated

message to investigate its authenticity. The facts of this case are as follows:

Three letters of credit were issued to the Standard Bank London Limited by the Bank

of Tokyo Limited in the amounts of US$ 5,000,000 (Five million United States

Dollars), US$ 4,000,000 (Four million United States dollars) and US$ 10,000,000 (ten

million United States

dollars) respectively. The authenticity of the signatures had been verified by a tested

telex authorised and sent by the Bank of Tokyo.

The Standard Bank London Limited made loans to the tune of the value of the letters

of credit. And assigned the second and third letters of credit to Sudwestdeutsche

40Graham Smith "Legislating for Electronic Transactions" , Internet Law and Regulation, Sweet and

Maxwell, 200241

Digital Signatures by Deborah Radcliff , Computerworld, April 10,200042Times April 15, 1995 (QBD (Comm. Ct)

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Landebank Girozentrale. The latter, on receiving tested telexs from the Bank of

Tokyo confirming the authenticity of the signatures, released funds to Standard Bank

of London Limited and kept the first letter of credit to claim under it on maturity.

When it was discovered that the tested telexes sent to the Standard Bank LondonLimited and Sudwestdeutsche Landebank Girozentrale were sent by fraudsters the

two banks sued the Bank of Tokyo for negligent misrepresentation.

The Court held as follows: -

1. Where a clear representation was made in the ordinary course of business,

normally the recipient would be fixed with notice of dishonesty, or of facts that

should put it on inquiry as to dishonesty, or if it had been wilfully blind. Want of

probity would normally be necessary rather than mere negligence. The moreusual the circumstances and the clearer a representation appeared to be, the less

the duty to inquire should be, and the less likely there would be circumstances

which would put anyone on inquiry.

2. Neither Standard Bank London Limiteds employees nor anyone with the bank

was put on notice of any fraud in the underlying transaction. Therefore Standard

Bank London Limited was entitled to rely on the relevant authenticated document

and to present conforming documents under the first letter of credit.

3. When the bank of Tokyo was asked by Sudwestdeutsche Landebank Girozentrale

for authentication the former owed the latter a duty of care to ensure the

authenticity of

the signatures. There was therefore negligence on the Bank of Tokyos part and

Sudwestdeutsche Landebank Girozentrale was therefore entitled to recover. 43

43Graham J. H. Smith "Telecommunications: Electronic Signatures" COMPTLR 1996, 2 (1), T17, Sweet &

Maxwell Limited

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PART III: OBSTACLES TO THE DEVELOPEMNT OF B2C E-

COMMERCE

Shortcomings of Digital Signatures

"While the cryptographic principles behind digital certificates are widely accepted, the

technology surrounding them remains far from bullet proof...Furthermore the general

public remain woefully unprepared to safeguard its own security...And the

accumulation of personal data such as social security, birth date, and account

numbers stored in an easy package like a digital certificate could prove easy pickings

for anyone who gains control over a computer, either through broadband connection

or by stealing a laptop.44

Digital signatures have the potential to have a great impact on B2C e-commerce by

allowing us to identify ourselves and make commitments in cyberspace in much the

same way as we do in actual space. Nonetheless, digital signatures have significant

limitations, the most significant being their temporary nature. The disadvantages of

digital signatures that hamper the growth of B2C e-commerce and contribute to the

lack of confidence that assails such growth include the following: -

Public Key Infrastructure (PKI) which is widely used for digital signatures like most

key recovery systems is inherently less secure, more costly and more difficult to use

than similar systems without a recovery feature. Key recovery degrades many of the

protections available from encryption, such as absolute control by a user over the

means to decrypt data. Furthermore, a global key recovery infrastructure can beexpected to be quite complex and costly. The impact of key recovery can be

considered in three dimensions45 namely: -

i Risk

44"E-Signatures at your Online Broker? Better Be Careful, Douglas Harbrecht, Business Week Online ,

December 12 ,200045 The risks of Key recovery, Key escrow and trusted third party encryption

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ii Complexity

iii Possible Economic Cost

i Risk

The Failure of key recovery mechanisms can jeopardize proper operation of digital

signatures, leading to loopholes in confidentiality and ultimate security (e.g.) where

there exists the improper disclosures of keys or theft of valuable key information.46

ii Complexity

" Digital signatures are coming but they are not here yet. Legal and Technical barriers

still stand in the way of widespread adoption.47

Although it may be possible to make key recovery reasonably transparent to end

users of encryption, a fully functional key recovery infrastructure is an extraordinarily

complex system, with numerous new entities, keys, operational requirements and

interactions. Therefore making digital signatures less user friendly.

Lack of High speed Internet access may prove to be another stumbling block for

small businesses seeking to enter the digital signing age.48While efforts have been

made over the last year to design key recovery systems for commercial purposes,

they do not alleviate the concerns raised by deployment at the scale and in the

manner required to meet government demands. The design of secure key recovery

systems remains technically challenging, and the risks and costs of deploying key

recovery systems are poorly understood.

iii Possible economic cost

Lack of common technology to be used for all transactions and technology barriers

-means that although both small and medium sized companies may receive digital

46ibid

47 ibid48

ibid

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signature capabilities form application service providers; their equipment may need

costly upgrades to be compatible with new software.49

Privacy Implications

"Digital signatures won't do away with criminals. In fact, it will give some of them a

new hunting ground. The hacker's pot of gold at the end of the server just got bigger"

50

Ordinary digital signatures have a fundamental limitation; like many cryptographic

techniques, security guarantees last only as long as secrets remain unrevealed. If the

secret signing key becomes known to an adversary one cannot trust any signature

produced with that key regardless of when. If a secret decryption key becomes

known to an adversary then any encrypted message even if it was sent long before is

not guaranteed to remain private. This would mean therefore that the secret key of a

signer (past and future) could become worthless. This limitation undermines the non-

repudiation property that digital signatures are often intended to provide.

Authentication

Digital signatures can only authenticate the source and not the content of a data

packet. This is disadvantageous for example during a malicious attack or sabotage

where a malicious node returns erroneous data. The node can be either an internal

saboteur who is a participating volunteer or an external spoofer. Therefore a node

that is not a volunteer can send forged messages that look like they came from one

of the volunteers.

Identification

Public Key cryptography guarantees the integrity of the message but does not

guarantee the identity of the sender (public key owner). 51However the paramount

49Jesse Berst, "Sign of Trouble: The Problem With E-Signatures" ZDNet, Monday July 17, 2000

50 ibid51 Swindells C et al, "Legal Regulation of Electronic Commerce" 1998 (3) The Journal of Information, LawandTechnology (JILT)

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draw back of this is the fact that one cannot be absolutely sure that the person

sending the message is not using a third partys digital signature. Only the physical

presence of the signatory at the time of the attribution of a digital signature allows

optimal security, by the establishment of a link between the signature and the person

designated by this signature.

Other obstacles to the development of B2C E-Commerce

"The lack of consumer contractual protections is indirectly costing merchants and

consumers the most important intangible commodity in cyberspace: trust" 52

It is believed that the main factor hindering the development of B2C e-commerce is

consumers lack of confidence in providing their credit card details over the internet,

despite the fact that it is believed to be more secure to give your details on the

internet than over the phone. This is mainly due to the noticed insecurities typical to

open networks; messages that can be intercepted and manipulated, the validity of

documents that can be denied and personal data that can be illicitly collected. In

light of this, security issues relating to online transactions are paramount in

importance if B2C e-commerce is to flourish.

"A hacker today is sort of like the guy who goes around rattling all the windows and

doors in a neighbourhood, and there is a pretty good chance he will find one open" 53

There are numerous factors which lead to breach of consumers' security and

subsequently evasion of consumers' privacy which thus contribute to the lack of

confidence in B2C e-commerce,

"...Almost every website you visit is trying to plant cookies on your computer....Your

every move on the internet is being recorded by someone somewhere"54

52- Digital Signatures by Deborah Radcliff , Computerworld, April 10,2000

53Lizette Alvarez & Jeri Clausing, Senate Approves Bill that Allows Online Contracts, N.Y. Times June 17,

2000 at A1 (quoting Senator Ronald Wyden of Oregon, sponsor of the Electronic Signatures in Globaland National Commerce Act ("E-SIGN")54"No hiding place: The protection of privacy will be a huge problem for internet society" The Economist,(Digital dilemmas; A survey of the internet society) January 25th 2003 at p.5

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Special devices used by content providers to improve the access to and services

offered on their websites clearly contribute to the lack of online security. (e.g.)

cookies which

make it possible for a web server to recognise a web client and enables certain

features that are useful for surfing and on-line commerce, at the same time they also

enable the

surreptitious collection of information from the user. Many sites that enable cookies

do not inform the user that information about them being placed on their system.

To add insult to injury, technically speaking, with each visit to the internet a

consumers online stroll can be traced as data is collected. Electronic recording of

"click stream" data may take place at various levels including the proxy servers, or

servers of the access or content providers.55

Lack of privacy policies provided by online businesses and/or Websites

Even though privacy is one of the top most concerns of internet users, few websites

today actually have privacy policies or provide users with information about privacy

practises. Many Internet sites collect personal information from users through online

registration, surveys and forms while information is also collected surreptitiously with

cookies. When the Electronic Privacy Information Centre (EPIC) reviewed 100 of the

most frequently visited web sites ranked by the website www.top100hot.com to see if

those that collected personal information, had established privacy policies, they

discovered that none of these web sites met the basic standards for privacy

protection.56

Another invasion of privacy and security emanates from identity fraud. The internet

provides a good breeding ground for the villains who perpetuate identity theft and

fraud""57

Lawrence. E. Williams, a New Orleans bank employee opened accounts at Internet

bank Wingspan and other Internet Bank or credit card accounts under the names of a

55Data Protection and Privacy on the Internet: Technical Considerations and European Legal Framework byTanguy Van Overstraeten and Emmanuel Szafran at the conference held on October 24-25, 2000 byHawksmere Business Law International in Amsterdam on the legal aspects of International E-Commerce.

56Surfer Beware: Personal Privacy and the Internet June 1997 and Surfer Beware II Notice is not Enough -

June 1998 - Electronic Privacy Information Centre - at http://www.epic.org/57

"E-Signatures Wait to Make Their Mark" Julie Fields, Business Week Online, January 25, 2001

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number or prominent local citizens. Through his job at the bank he accessed his

victims' personal information..... 58

In today's booming e-commerce market, a hacker's diligence stands to be

handsomely rewarded. Therefore risks in B2C e-commerce do not only lie on the

consumer side but also apply to businesses as well. These risks are two fold since

businesses that wish to transact via the Internet have to protect their customers from

hackers and also protect themselves contractually from dishonest consumers. 59

There are numerous fears and problems of online B2C e-commerce as envisaged

above therefore, useful though they may be digital signatures alone cannot

overcome the lack of confidence that assails the development of B2C e-commerce.

PART IV THE FUTURE OF DIGITAL SIGNATURES AND B2C E-

COMMERCE

Although digital signatures are the latest authentication tool in the continuing

advancement of communications technology it seems unlikely that digital signatures

will fully replace handwritten signatures in the foreseeable future. Handwritten

signatures are advantageous because they are fast, cheap, easily understood, and

last forever. With consumers already concerned about revealing credit-card numbers

online, the prospect of losing the last bastion of personal security- the handwritten

signature- is daunting. 60

Handwritten signatures will probably continue to be used for authenticating

documents such as treaties and signing bills into law. According to Sunil. K. Roa61 the

future of digital signatures is as follows: -

58Identity Fraud - The Great E-Commerce Roadblock - Paul A. Greenberg, E-Commerce Times, July 12,

200159

University of Richmond Law Review, January 2002, Digital Handshakes in Cyberspace under E-SIGN"There's a new Sheriff in Town" Michael H.Dessent.60

"E-Signatures: Unsigned, Unsealed, Undelivered, Paul A. Greenberg, E-Commerce Times, June 5, 200161Sunil K.Rao "A Digital Signature Architecture and Roadmap" Paper for MIT 6.805/STS085: Ethics and Lawon the Electronic Frontier, Fall 1999

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The use of digital signatures for high-value financial transactions outside the

protection of trading partner agreements is likely to proceed relatively slowly,

until experience with the risks associated with use of digital signatures is accrued.

Initial use of digital signatures is likely to be limited to applications where long-

term archival is not very important, such as purchase orders, electronic funds

transfers and authentication of on-line services. Applications requiring long-term

archival such as birth and death certificates, deeds and government records will

probably require the establishment of electronic data archival centers capable of

verifying digital signatures, and associating the verified data with the identity of

the signer.

Current laws dealing with digital signatures seem to have glossed over or

overlooked long-term non-repudiation. These laws will most likely be revised over

the next five (5) years or as the practical limitations of digital signature archival

manifest themselves.

Applications requiring high levels of non-repudiation assurance will likely require

the use of digital time-stamping (or notary)

services. These services may be provided by commercial or government entities.

At some point a clever cyber-criminal will commit a fraud through compromise of

a private signature key, or by seizing control

of the legitimate signers computer. When this happens, it will probably be a

major news event, and the whole concept of digital signatures will be

called into question, notwithstanding the fact that handwritten signatures do

not provide perfect security assurance either. The future of the use of digital

signatures will depend greatly on the early court decisions concerning who is

held liable for losses, and the success of the prosecutions efforts.

CONCLUSION

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"Despite the dotcom boom and bust, the computer revolution has barely begun. Over

the next few decades, the internet and related technologies really will profoundly

transform society", argues David Manasian62

In order to tackle the problem of the privacy implications of digital signatures and

reduce the potential of damage, forward security should be used to ensure that

secrets are used only for short periods of time and that compromise of a secret does

not affect anything based on secrets from prior time periods. (e.g.) key evolving

signature

scheme.63 Forward secure signature schemes are meant to preserve the validity of

past signatures even if the current secret key has been compromised.64This would

provide a viable alternative to PKI infrastructure.

Biometrics which is more inline with classic examples of signatures65can serve as an

alternative to digital signatures. It is the method of signing an electronic document

which uses a pen attached to a digitalizing pad to record the physical signature of the

maker of the document. This is normally displayed in a window on the screen of the

computer to which the distinguishing pad is connected.66 The use of a light pen and

the emulation of the physical action of signing manually provide a more direct means

of identifying an Individual by means of physical measurements uniquely associated

with the individual.67 Although there are many types of biometrics, a person has but

one or two biometric signatures68

. Its virtue is that biometrics, which are unique to agiven human being and are not capable of being forged or stolen.69

"In a couple of years, when technology improves, your signature could be an image of

your retina, your fingerprint, or your face scanned by computer and matched with a bit

of numeric code lodged on the servers of security companies that you've signed on

with". In Short digital signatures legislation provides a framework but not more than

62 "Digital dilemmas; A survey of the internet society" The Economist January 25th 2003 at p.363

Silvio Micali and Leonoid Reyzin "Improving the exact Security of Digital Signature Schemes" August 15,2000.64

Gene Atkins and Leonid Reyzin Forward Secure Signatures with Optimal Signing and Verifying

65 Robert Moskwowitz, "What's "E" about Signatures?", Network Computing, September 18, 200066 See Wright "Alternatives for Signing Electronic Documents" (1995) 11 CLSR 136.67 R Jueneman, R Robertson, Jr "Biometrics and Digital Signatures in Electronic Commerce" 1998,Jurimetrics 42768 Robert Moskwowitz "What's "E" about Signatures?", Network Computing, September 18, 200069 Georgios I Zekos. Legal Problems in Cyberspace, Department of International Economics, DemocritosUniversity of Thrace, Amvrosia-Komotini, Greece at p.73

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that. "What is considered a digital signature is somewhat vague" says Jun of

Cryptography Research

"That's good because it can add to some differentiation in the market. That's not good

because it can add to confusion in the market". And until businesses can figure out

how to eliminate this confusion, digital signatures won't replace hand written

signatures70

In order for electronic commerce in general and B2C e-commerce in particular to

prosper and become one of the key drivers of the global information society, security

must be top priority. The Internet will continue to impact business as new paradigms

for enforcement of digital signatures created by online transactions are established.

In the final analysis therefore it is right to assert that

"useful though they may be digital signatures alone cannot overcome the lack of

confidence that assails the development of B2C e-commerce".

70. "What do E-signatures Mean For you "Business Week Online June 20, 2000

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