The Virtual Lawyer - Digital Hot Wax

by David Crocker

Published 1997-12-01    Printer-friendly version

Forget chronological snobbery. You know, the unfounded opinion that our own age is altogether superior to any preceding. This peculiar vanity seems particularly to infect the self-anointed illuminati spreading the holy digital gospel in our own day. Don't believe a word of it, though. As the wag saith, the more things change, the more they stay the same. Take on-line commerce: Apart from the specific method used, the requirements are exactly the same as those used by ur-humans at the beginning of creation. We might as well be dressed in bearskins. If you doubt me, simply consider the lowly signature.

Mark of the Cro-Magnon

Even the lowly cro-magnon had a signature, a specific and authentic mark denoting his selfhood that was both recognizable and credible to strangers viewing it. Using durable paint, he stamped his handprint on the wall-to-wall limestone of his cave home. Any other cro-magnons hanging around would see and recognize. By the time cro-magnon (us, really) got around to inventing written language, authentication techniques had evolved somewhat: The signer would melt some hot wax over a guttering candle flame, dribble some wax on a piece of papyrus and then impress the wax with a seal. Putting a document "under seal" has a very ancient and very necessary function. In addition to the obvious need to provide credible recognition, there are also substantive and ceremonial aspects as well: The parties must authenticate the substance of a bargain struck, while being properly impressed with the solemnity of the occasion. The owner of the seal guarded it carefully. If the seal fell into the wrong hands, the ability to authenticate and substantiate (and with it the stream of commerce itself) would be compromised.

Things Stay the Same

Do you think we still occupy some higher ground in the digital age? Well, think again.

The requirements to authenticate digital commerce are exactly the same as our wax-dribbling predecessors. Instead of hot wax, it's algorithms and data streams. But consider the requirements: I need a distinguishing, unique and, above all, secure mark and you need to authenticate it. We both need to substantiate the terms of a bargain struck and provide asset to agreed terms.

Enter the Digital Signature

Thanks to strong digital encryption, it's now possible to create a secure "signature." This is done using a private "key", known only to the signer, to create the unique jumble of indecipherable code constituting the signature. The recipient, on the other hand, uses a so-called "public" key, available to all, to authenticate the signer's code. To be a bit more precise, the signer uses an encryption algorithm to create a "hash result" of standard length that is appended to any message sent. If some trickster tries to alter the message, this meddling will change the hash result. On the other end, the authenticator checks the signature using a "public" key available to all. He will determine whether that signature was created for the message it accompanies. You should know that such technology is being used more widely and has been specifically authorized for use in certain federal contracts with the states following along.

California and Utah, for instance, now have signature statutes.

So Now What?

So now, in theory at least, we are able to dribble some sealing wax on-line. Are such agreements enforceable? Well, yes, for the most part. Courts have upheld contracts formed purely by facsimile and telex, so why not the electronic variety? The business community, in the latter instance, has apparently accepted the risks with the obvious benefits. So, if you are going to create an online contract designed for signature with digital hot wax, what precautions should you observe?

First, make sure the terms and conditions are written clearly in plain English. You wouldn't want to be accused of selling a chump a pig in a poke, would you? Then make the language plain enough for the inevitable nitwit with a twitchy mouse finger. For the slowest coaches change this who can't even read plain English, provide a telephone inquiry number.

Second, make your customers read the contract. Avoid scroll-down licenses. Install page prompts instead. Although it's not foolproof, a judge might buy it.

Third, use a standard "merger" clause. You know, the one that says "the-terms-in-this-writing-are-all-we-ever-agreed-to-and-you're-a-black "dirty?"-liar-if-you-say-anything-different-later." Well, you get the idea, I'm sure. Also, put in a representation that the customer is over twenty, with legal capacity to enter into a contract. Oh? I'm being overcautious? Just how many twelve year-olds travel in cyberspace?

Fourth, think about creating a permanent database of the customers' assents and send a paper copy of the contract document to the customer.

Back to Bearskins

If you're still convinced that we've come a long way, think again. Even a digital key can get lost. Never, ever, loan your private key to anyone else. Make sure that it's inaccessible to snoopers who might get inside your computer. As with eavesdroppers of old and thieves in every age, your private identification can be appropriated by others.

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Clarion Magazine ISSN 1718-9942