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Electronic Communication Legislation

Electronic Communication Legislation. Mark Heyink 6 th November 2002. The Uncertainty In Our Law. Three important factors affecting jurisprudence: Accelerating speed of change challenges our ability to create law by ‘traditional’ methods

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Electronic Communication Legislation

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  1. Electronic Communication Legislation Mark Heyink 6th November 2002

  2. The Uncertainty In Our Law • Three important factors affecting jurisprudence: • Accelerating speed of change challenges our ability to create law by ‘traditional’ methods • Novel concepts and legal personalities challenge precedent and the physical paradigm in which they were created • Globalisation challenges our concept of sovereignty and requires collaboration in law making • These uncertainties will prevail beyond our lifetimes • Uncertainty equals risk • We have to manage this risk!

  3. Risk Management • A different approach to the legal challenges of the knowledge age • Pro Active, inter-disciplinary management of the legal risks and not the consequences of the risks • One of the risks is the uncertainty in the law • Awareness is the most important tool against any risk

  4. IT Governance • King II for the first time places the responsibility of IT governance at board level • Compliance with new laws critical • King II also specifically recognises that there will be deficiencies in our law that will require ‘self-governance’ • Access to information not purely an IT issue but there will be a high and increasing dependency on IT • “In today’s economy and, and with the reliance on IT for competitive advantage, we simply cannot afford to apply to our IT anything less than the level of commitment we apply to overall governance”- IT Governance Institute

  5. Electronic Communications and Transactions Act • Sect 11 the most significant section in the Act: • “Information is not without legal force and effect merely on the grounds that it is wholly or partly in the form of a data message” • Data message: • data generated, sent received or stored by electronic means and includes • Voice …where used in an automated transaction • A stored record

  6. “Writing, Original and Retention” • The Uncitral Model Law is followed • All allow for information to be in the form of a data message as long as it can be displayed or produced and the integrity of the data message is maintained • How is the integrity of data messages maintained? • Digital signatures serve the same purpose in identifying, author, verification, acknowledgement and assent as handwritten signatures do. But they do more. They also provide assurance as to the source and integrity of the communication which handwritten signatures do not • “A digital signature ….is to this extent superior to a handwritten signature”- Thomas J Smedinghoff

  7. Signature • Electronic signature: - • data attached to , incorporated in or logically associated with other data, which is intended by the user to serve as a signature • Advanced electronic signature: - (digital signature) • An electronic signature which results from a process… accredited under sect 38 or recognised under sect 40 • Sect 13(2): - • Subject to subsection (1) an electronic signature is not without legal force and effect • Sect 13(1): - • Where the signature of a person is required by law …, that requirement in relation to a data message is met only if an advanced electronic signature is used

  8. Signature Amendments • 13(1) “Where a signature is required by law and such law does not specify the type of signature…” • “Where an electronic signature is not required… an expression of intent is not without legal effect merely on the grounds that (a) it is in the form of a data message…”’

  9. Difficulties • One of the few areas where the Uncitral Model Law is deviated from • The deviation is based on a misunderstanding of the electronic signatures • The unfortunate result will be the undermining of the stated objects of the Act • There is no accreditation authority at present and no indication has been given as to when it will come into operation or how it is to operate

  10. Admissibility and Evidential Weight • Computer Evidence Act repealed !!!!!! • “…the rules of evidence must not be applied so as to deny the admissibility of a data message in evidence – • a) on the mere grounds that it is constituted by a data message; or • b) if it is the best evidence that the person adducing it could reasonably be expected to obtain on the grounds that it is not in its original form” • In assessing evidential weight regard must be given to: - • Reliability in generation, storage or communication • Reliability of integrity of data message was maintained • Reliability of manner of identification of originator • Any other relevant factor

  11. Communication of Data Messages • Deals with • variation by agreement between parties • formation and validity of agreements • time and place of communications, dispatch and receipt • attribution of data messages to the originator

  12. Cryptography • D.G. of the Dept of Communications to establish and maintain a register • Name , address, description of service or product • Information required to locate the products or services

  13. Authenication Service Providers • D.G of DoC to establish Accreditation Authority • Accreditation stated to be voluntary but de facto compulsory due to sect 13(2) • Places obligations on Authentication Service Providers to register and can revoke registration • Must comply with sect 38: • Uniquely linked to the user • Capable of identifying the user • Means of creation under sole control of the user • Linked to data message in that subsequent changes can be detected • Based on face to face identification

  14. Protection of Critical Databases • The Minister may identify databases as being critical and then prescribe • minimum standards in respect of their management • Access to and control of databases • Infrastructural and procedural rules for securing integrity and authenticity of data • Manner of storage and archiving • Disaster recovery plans • D G may audit by “cyber-inspectors” or independent audit • Non Compliance : Critical database administrator guilty of an offence

  15. No International Equivalent • USA –Critical Infrastructure is soughtto be protected by an Executive Order • President Clinton in seeking public private sector co-operation -“We cannot mandate our goals through Government regulation. Each sector must decide for itself what practices … are necessary to protect its key systems” • Post 11 September • 16th October 2001 Pres. Bush - ” The implementation of this policy shall include voluntary public–private partnership …” • Australia National Information infrastructure • “…government places great importance on working with the privatesector …” • New Zealand • Calls for the establishment of an ongoing co-operation programme between the owners of critical infrastructure and the government

  16. Financial Intelligence Centre Act • Anti Money Laundering Legislation • Attorneys are an accountable institution • So are many of our clients • Will we be able to manage the records icw FICA? • What about our conveyancing software, can we give the banks the information that they will need on their clients?

  17. So What! • King II • The ECT Act will affect us all in many ways • Financial Intelligence Centre Act • PROATIA • Interception and Monitoring Bill • Privacy and Data Protection

  18. The Client • Expects nothing less than absolute confidentiality • We represent attorney and client privilege as a distinguishing factor • Do we always ensure safety in communication? • How do we manage internal email? • Are our databases secure? • Are we able to ensure the most up to date information and advice at a competitive price?

  19. The Lawyer • Reliable information is our life-blood • Why are so many lawyers petrified of the most fantastic knowledge tools ever devised? • Can we understand the new digital age and advise clients without being part of it? • Is a fresh approach necessary?

  20. The Firm • King II report: - the governance of IT is the responsibility of the directors/leaders of the firm • Do we accept this responsibility or are we too busy to do so? • To what degree are we looking for the opportunities that the knowledge revolution holds for us? Are we the barriers to change? • Do we understand the information risks of the new age? Do we use them as an excuse?

  21. The Organised Profession • Is the most important economic and social development of the new millennium being ignored by our leaders? • Education and awareness, is enough being done? • Does the profession encourage and assist practitioners in the use of technology? • Does it interact with vendors? • Does it interact with government on legislative reform? • Does it interact with the relevant ministries on administration of justice issues? • The “law society as a certification authority and a regulator?

  22. Information Security • The dependency that most entities will have on their information and technology will demand a high premium on managing the risks that may impact upon it • Given the deficiencies in the law and demands made by the law it is important that information security is implemented • IS will provide one of the most reliable methods of managing the risk and maximising the opportunities

  23. Thank you Mark Heyink mark.heyink@kpmg.co.za 011 454 0449 082 904 3774

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