Obama Creates a Cyber Law Controversy
US President has created a controversy involving Cyber Laws by using
“Autopen” to sign a Bill. Mr Obama was abroad at the time the Bill had
to be signed and he has authorized application of his signature with the
use of the “Autopen” equipment.
The move has been approved by the legal department stating that the
President has approved the Bill himself but has only delegated the
process of applying his signature. Some have termed it as a dangerous
precedent.
The decision opens up a Pandora’s box as to the legality of
“Signatures”. It is accepted that “Signature” is “Authentication” and
“Authentication is more in the mind than in the physical form of a
signature”. Physical forms of signatures often vary but are considered
valid as long as they are genuine. The legal department seems to have
therefore come to the conclusion that signature of the President can be
applied by some body else and still be held as the signature of the
“President”.
But it must be noted that in the instant case the signature has been
affixed using “Autopen” operated by another human being under delegated
authority. It is presumed that there is no “Written” or “Digitally
signed” authentication to the delegated authority for affixing the
signature since if there was time to provide written authority for
somebody else to affix the signature, it could as well have been used
for signing the bill itself. No provisional permission could have been
granted earlier since the contents of the approved bill was not
available earlier and any provisions permission would also require
confirmation after the President had applied his mind on the final
version.
Hence this is a delegated affixing of signature where the delegation
itself was not perhaps properly authenticated. The legality of the
signature has to be verified in this context.
For academic discussion we can debate on the alternatives available for
the President in such cases.
The best option would have been for the President to use “Digital
Signatures” as approved in law which could have been applied to the
electronic form of the Bill.
The second best option would have been to use the digital signature to
authenticate a delegated authroity to affix the signature on behalf of
the president in which case the form of signature should have been ”
Signature of the President… affixed under authority by …….”. The
delegating letter in e electronic form should have made a specific
authorization of the application of the Auto Signature or a Presidential
Seal by an authorized person after recording that the Bill was “Read,
Understood and Approved by the President.
I am not sure what was the legal problem in printing out the document at
the place where Mr Obama was available and then affixing his physical
signature. The signed document could have been brought back later. This
was an obvious solution but I suppose it could not be used.
Another alternative which could have been used (subject to appropriate
device being available) was that the President could have used a
“Hybrid” signature which is a combination of physical and digital form
of signing. In this system he could have signed on an Electronic signing
equipment at one end which could have been reproduced in real time to
activate the “Autopen” directly on the document and reproduce the
signature as affixed by the signatory at the other end of the data
channel. (Not triggering the signature from a template as is normally
done by the Autopen”.
Though this is also not a “Digital Signature” in full, it would have
avoided the involvement of another human being in between and the
signature would have been directly applied by the president with the use
of technical devices including the data transmission through the
Internet/VPN.
The use of “Autopen” by another person who claims to have received
authentication but not not through writing or digitally signed document
is open to abuse in future. The process does not clarify if the
President at the time of signing was not under any coercion or threat or
otherwise incapacitated to take the decision.
The discussion should be carried to its logical conclusion and reviewed
by the Judiciary so that it will not come back to haunt the country some
time in future.
Naavi
30th May 2011
Comments are Welcome at naavi@vsnl.com
