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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.


30th  May 2011

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