Rob McCallough of law firm Pinsent-Mason has written an interesting follow-up piece on the UK legal status of email signatures, referring to a case described in this earlier article.
I'd better start with a definition of what he means by 'signature': for our purposes, he's referring to 'the name of the sender, typed at the foot of an email'. (That is, he's not referring to cryptographic digital signatures).
He cites a UK High Court ruling of April 2006, in which Judge Pelling QC said that an email offering a personal guarantee for £25,000 was not a reliable basis for the creditor to claim cash from the sender because it wasn't signed. He said that, had the sender typed his name at the end, or even his initials, that would have sufficed "providing always that whatever was used was inserted into the document in order to give, and with the intention of giving, authenticity to it".
His ruling was apparently silent on the matter of automatic email 'signatures' (i.e. footers) which give the sender's details. He did rule that the presence of the sender's email address was 'incidental' (presumably as an indication of authenticity).
I freely admit I know little of the law in this area, but I find this ruling strange, principally because it seems to contain so little to link the visible 'signature' with the person who typed it in. In that respect it seems liable to fail a basic test of 'authenticity', on the basis that the sender's name could be typed or otherwise inserted by someone other than the sender, and there would be nothing to distinguish that case from one in which the sender did in fact type their own name.
Rob McCallough cites the Statute of Frauds and Perjuries from 1677 as a law which requires that some documents (including personal guarantees) be in writing and signed. At that time, presumably, a 'signature' would have had to consist either of a conventional hand-written name, or a mark made in the presence of someone able to assert its authenticity. Judge Pelling's ruling seems to me to assume that a typed name can be treated in the same way, but I find that assumption unconvincing.
There's also detailed comment on the same case here, on the Financial Cryptography website, including the following passage, which I find instructive (reproduced with the author's italics &c.. The numbers refer to paragraphs in the court ruling):
[quote]
19. As well know to anyone who uses email on a regular basis, What is relied upon is not inserted by the sender of the email in any active sense. It is inserted automatically. My knowledge of the technicalities of email is not sufficiently detailed to enable me to know whether it is inserted by the ISP with whom the sender or the recipient has his email account. ...
Which is pretty well spot on, including the apropos injection of user confusion. The email address is inserted automatically by an agent of uncertain pedigree. Citing an 1892 precedent:
25. It was this argument that succeeded. Cave J, said:
"I am of opinion that the principle to be derived from the decisions is this. In the first place, there must be a memorandum of a contract, not merely a memorandum of a proposal; and secondly, there must be in the memorandum, somewhere or other, the name of the party to be charged, signed by him or by his authorized agent. Whether the name occurs in the body of the memorandum, or at the beginning, or at the end, if it is intended for a signature there is a memorandum of the agreement within the meaning of the statute. " [Emphasis supplied]
[end quote]
Here, the argument was about whether the email address constituted a signature, and concluded that it did not, because it was not 'actively inserted by the sender'. But let's consider the case of a cryptographic digital signature. When I send a digitally signed mail, I have to enter (once per email 'session') a password to the mail client's local keystore. Once I have done that, all subsequent emails are digitally signed with no further action by me. On that basis, it seems to me that a digital signature is inserted as automatically as an email address.
However, the relevant difference is surely this: that in the case of the digital signature, there is (because of the need to 'unlock' the keystore), a higher probability that it was me who sent the email, rather than another person, and a far smaller probability that a spurious signature has been inserted into the email by some other (unauthorized) agent. For instance, in the case under discussion: what would the judge have had to conclude if he had been presented - by the claimant - with a copy of the email which did include the sender's typed name?
My conclusion is that the legal argument here centres around a point which is interesting and relevant (can something inserted automatically be a signature?), but ignores a more telling question: can it be shown that the signature has been inserted by me or by my authorized agent, rather than anyone else or an unauthorized agent?
I would argue as follows: in the case of a simple name or initials typed into an email, it cannot reliably be shown that it was me, rather than someone else, who inserted them or caused them to be inserted (including tampering with the email at various stages of transmission).
If an email is digitally signed, and that in turn relied on the unlocking of a cryptographic keystore by means of a user-entered password, then I would argue that the digital signing routine has the status of an 'authorized agent'.
Admittedly, there are still two problems with that. First, as I said, my mail client settings only require me to enter that password once. If I were to leave my mail client unattended, someone else could send an apparently validly signed email without hindrance. That's one issue. If, in order to overcome it, I set my mail client to require the password every time I sent an email, there would be a further problem: to the recipient of the email (or any forensic enquirer) there is no way to determine whether, when the email was sent, my mail client was set to require only one password entry or one per digitally signed email. Any digitally signed mail would therefore have to be sceptically treated as though the mail client required only one password entry per session - and this therefore weakens the reliability of the digital signature because there must be assumed to be a time period during which another person might send a validly-signed email using my session.
But I come back to what I think is the key question. What would Judge Pelling have ruled, if the claimant had produced an email which did have the sender's name typed at the bottom. As far as I can see, his ruling would leave him with no option but to accept that the email was a valid personal guarantee, and therefore a reliable basis for the creditor's claim. And I don't think that is a desirable state for us to be left in.
Posted by racingsnake
@ 05:10 PM GMT+00:00
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I've been abroad for a few days and in self-imposed isolation from... well, pretty much everything - which was nice. No emails, no phone calls, no TV, no newspapers... and no blogging.
Coming back to the UK (which, with the current weather, was quite something - but that's another story) it's interesting to look at the headlines with a little more detachment than usual.
The new Home Secretary, John Reid, says that the Home Office is "not fit for purpose".
Amnesty International says that UK policies have undermined the ban on torture, that anti-terror measures have 'led to serious human rights violations', and that the government has "continued to erode fundamental human rights, the rule of law and the independence of the judiciary...".
And police used powers under the Serious Organised Crime and Police Act 2005 to (allegedly) seize personal property and protest banners from a long-standing one-man protest outside the Houses of Parliament. Apparently a one-man demonstration (Mr Haw, the demonstrator in question, has been in place for five years now) covering 3 metres is just about OK, but a demonstration with what Mr Haw describes as "40 metres of evidence of genocide" is a security threat. It's hard to see this as much other than a heavy-handed attempt to remove a visible embarrassment to politicians.
So all in all, being away from all this for a weekend may have given me a fresh perspective, but what's on view doesn't seem to have changed much.
Posted by racingsnake
@ 11:34 AM GMT+00:00