A Judge’s Secret Fear of Electronic Signatures

I recently accompanied a group of visitors to a court that is in the process of moving to paper–on- demand. Among other things, we observed judges electronically signing judgments. The judges all said that using electronic signature was easy and that they had no difficulty learning to use it. So far, so good. But all is not always as it first seems…

Later, the Court Supervisor mentioned in passing that the most senior of the judges we had observed electronically signing had once harbored serious reservations about using electronic signatures. In addition to being a very experienced judge, he is also a strong and vocal advocate of increased use of technology; although he is at pains to explain that he does not actually understand the technology at all.

Because I was preparing to speak to a conference of judges and court administrators, I asked the Trial Court Administrator if I could talk with the judge about his reservations and what he had learned that put them to rest. The TCA graciously agreed and the judge responded as follows:

“My concern then and now is with the availability of others using the computer for making documents official. With the personal signature, there would have to be a forgery to make the document appear to be an original signature. The availability of a signature stamp can be regulated or precluded; however, once the computer has the signature capability, anyone with the password can access the e-file and create an authorized signature on the document. The ability to establish that this was an unauthorized signature would appear difficult.

“I also have a concern that the security system appears of doubtful reliability to preclude someone from being able to enter the system from the outside and thus be able to alter or create false documents with apparent valid signatures.

“I can envision cases where there is a great deal at risk where it could become worthwhile to prepare a false document with an apparently valid signature to secure the release of a prisoner or to effect some other act to the considerable detriment of others.”

I enthusiastically and sincerely thanked the judge, telling him that his comments would be (and they were) extremely helpful to me in crafting my presentation. I copied the TCA with my reply. The TCA responded

“Jeff, you are aware that [the judge] has not been informed of the vast security aspects of electronic signature nor does he know the real details of the software or protections.”

To which I replied

“Right. This is exactly the reason I wanted to hear directly from him. Until we hear the concern, we tend not to address it, because the answer seems so obvious to us. But it is not at all obvious to judges.”

Note that, contrary to what the Court Supervisor and TCA believed, the judge – although now using electronic signatures – STILL does not trust the technology. As it happens, in that court the security is extremely well thought out and deployed; but the judge was no more aware of it than a fish in a tank is aware of the filtration system that cleans the water. Just as the tank water is safer and more carefully monitored than an open pond subject to random pollution and other natural disruption, the electronic signature is far more safe and secure than the “wet” (not to mention the stamp!) signature.
The point here is that those of us involved in deploying technology often miss the fact that many of the stakeholders, and probably particularly judges, are unaware of much of what is done to provide them with the environment necessary to enable them to do their difficult jobs, because they are rightfully focused on doing those jobs well.

When I made my presentation, I included a high-level section addressing the safety and efficacy of electronic signatures. Following the presentation, several judges and administrators commented specifically that they had colleagues with exactly those concerns, and that they would use the presentation to make them aware of the how electronic signatures, properly implemented, are not only safe, but safer than “wet” signatures.

Just because no one is saying out loud that they have doubts about signature security, do not assume the doubts have disappeared. Probe just a little and you may find they are far more widespread than you suspect, even among your supporters. As signature security is one of the great strengths of electronic signatures, the chance to address these concerns is a potentially large opportunity to advance your court’s move to and adoption of electronic signatures.

One thought on “A Judge’s Secret Fear of Electronic Signatures

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