Electronic Signatures: Technology Developments and Legislative Issues

Electronic Signatures: Technology Developments and Legislative Issues

Order Code RS20344
Updated January 19, 2001
CRS Report for Congress
Received through the CRS Web
Electronic Signatures: Technology
Developments and Legislative Issues
Richard M. Nunno
Analyst in Information Technologies
Resources, Science, and Industry Division
Summary
Electronic signatures, a means of verifying the identity of the user of a computer
system to control access or authorize a transaction, are increasingly being used in
electronic commerce. Several technologies can be used to produce electronic signatures,
the most prominent being digital signatures, which use cryptographic techniques to
provide data integrity and nonrepudiation. Legislation enacted in the 106th Congress
enables the legal recognition of electronic signatures in interstate commerce. Other
legislation introduced but not enacted was intended to promote federal agency use of
electronic signatures to enable electronic filing of information.
Definitions and Technologies Used for Electronic Signatures. Electronic
signatures are methods used to provide electronic authentication, a process of verifying
the identity of users of a computer (either a stand-alone mainframe or a network or
Internet-based system) in order to control access or authorize transactions. In many states
and industry sectors, electronic signatures attached to electronic records (documents
created, stored, generated, received, or communicated by electronic means) are legally
recognized in the same manner as handwritten signatures on paper. Electronic signatures
are used to establish identity in electronic commerce, and to control access to facilities or
systems. Electronic signatures are either being implemented or planned for medical and
financial records, and various government transactions. The following technologies are
forms of electronic signatures at various levels (and are used in combination to provide
added security):
! password or personal identification number (PIN)—a set of numbers
or characters shared only by the system and the user, and usually
encrypted if the authentication occurs over an open network (i.e., a
network to which the public has access);
! smart card—a plastic card similar to a credit card, except that it
contains a microprocessor (a “chip”) that can generate, store, and process
data, and can be programmed to be activated only when the user enters
a PIN or other identifier. Together with a reader device, smart cards are
Congressional Research Service ˜ The Library of Congress

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used for telephone calling, electronic cash payments, access to ATMs, and
to store medical or financial data for individuals, and provide greater
security than a PIN, because the user must have both the card and the
PIN;
! biometrics—technologies for measuring and analyzing human body
characteristics such as fingerprints, eye retinas and irises, voice patterns,
facial patterns and hand measurements to authenticate their identity.
Biometric devices consist of a reader or sensor, software that converts the
received information into digital form (i.e., a series of binary digits or
bits), and if the data are analyzed, a database to store an individual's
known biometric data with the entered biometric data;
! digitized signature—(a form of biometric) a graphical image of a hand-
written signature, usually entered using a special digital pen and pad input
device. The input signature is automatically compared with a stored copy
of the digitized signature of the user, and authenticated if the two
signatures meet specifications for similarity;
! digital signature—an electronic signature that is produced on a message
using a key (a very large binary number) that is known only by the signer,
and a signature algorithm (a mathematical formula) that is publicly
known. The digital signature is unique to each message and key
combination. It can be used to verify the identity of the signer and to
provide data integrity (authentication that nothing in the data has been
altered since the message was signed). It can also be used to prove to a
third party that the signature was in fact signed by the signatory (known
as nonrepudiation).
While PINs and biometrics are used
for access control to information or
Process for Using a Digital Signature
capabilities on a smart card (which may
for Secure Internet Transmissions:
include other PINs, biometric
1. The sender's public key and proof of identity are given
information, keys, or certificates), only
to a certification authority (a trusted third party, such as
digital signatures (and other
a government agency or an established company).
2. The certification authority creates a digital signature
cryptographic processes) can provide
certificate (an electronic file containing the sender's name
data integrity and nonrepudiation.
and public key).
Digital signatures use a system called
3. When the sender creates an email message, special
software is used to compute a hash (a mathematical
public key cryptography,1 that uses two
summary) of the message.
keys: a private key (held only by the
4. The hash and the sender's private key are used by the
sender of transmitted data) used in
signature algorithm to produce the digital signature.
5.The message and digital signature are transmitted.
conjunction with a signature algorithm to
6. The receiver obtains the digital signature certificate,
sign the data, and a public key (often
either from the sender along with the message, from the
made public in an on-line directory) used
certification authority, or from a directory of certificates.
7. The receiver processes the digital signature using the
by the receiver of the data with the
public key of the certification authority, and computes a
algorithm to verify the signature received
hash on the content of the certificate. If the two results
(see box for a typical step-by-step
match, the receiver knows that the message is valid.
procedure for creating and using digital
signatures in an Internet application).
1 Public key systems are also called asymmetric systems.

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As a result of the growth of electronic commerce, a public key infrastructure (PKI)
is being planned, consisting of several competing certification authorities from which users
can choose, to meet a range of computer security needs. The Administration is working
with the private sector to develop a PKI for electronic data exchanges within and among
federal agencies, vendors, state and local governments, and citizens.2 Many federal
agencies are conducting research and development on and procurement of electronic
signature technologies to enhance security and efficiency. Digital signatures are often
confused with the software that is used for encryption (a process of scrambling the bits
according to a secret algorithm) of the content of messages and data. Indeed, the
cryptographic technology they use is very similar. Unless encryption is used in conjunction
with digital signatures, however, anyone who intercepts the electronic file can read the
content of the message or data. Only encryption products (whether software or hardware)
can provide confidentiality (preventing transmitted data from being monitored by
unwanted parties). Furthermore, the U.S. export restrictions for strong encryption
products do not apply for digital signatures (for further discussion, see CRS Issue Brief
IB96039, Encryption Technology: Congressional Issues).
Congressional Interest in Electronic Signatures. The main congressional
interests in electronic signatures focus on enabling electronic signatures to carry legal
weight in place of written signatures, removing the inconsistencies among state policies
that some fear may deter the growth of electronic commerce, and establishing
requirements for government use of electronic signatures to enable electronic filing of
information. Neither law enforcement nor national security organizations oppose these
objectives, and many business associations would like a national electronic signatures
standard to be established to enhance electronic commerce. State legislatures have been
active in electronic signature issues for several years. All states except for Arkansas,
South Carolina, and South Dakota, have considered or enacted some form of electronic
authentication law (although some state legislation does not distinguish between electronic
and digital signatures). Currently, 36 states have introduced or are considering 76
electronic signature initiatives. Twenty-six states have enacted one or more of these
initiatives into law. In the area of digital signatures or PKI technologies, 20 states have
introduced or considered 36 different initiatives or regulations, with 13 states adopting
some form into law. Seven states are examining laws that address both digital and
electronic signatures (see the Internet Law and Policy Forum [http://www.ilpf.org/]).
Three models for electronic signatures have developed at the state level: the “Utah” or
“prescriptive” model with a specific public key infrastructure scheme including state-
licensed certification authorities; the “California” or “criteria-based” model that requires
electronic signatures to satisfy certain criteria of reliability and security; and the
“Massachusetts” or “signature enabling” model that adopts no specific technological
approach or criteria, but recognizes electronic signatures and documents in a manner
parallel to traditional signatures. The first two models have been criticized for failing to
be technology neutral, i.e., favoring digital signatures over competing electronic signature
technologies. Some of the proposed state laws are general, applying to a wide range of
government or private sector activities, while others are more narrowly cast. One
controversial aspect of the debate over electronic signatures is whether there should be a
single federal law in place of the various state laws. Many in industry believe that the lack
2 See report at [http://gits.gov] first released September 1998 by the Vice President's Government
Information Technology Services Board, a collaborative effort by government and industry.

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of national rules governing the use of electronic signatures is one of the barriers to the
growth of electronic commerce. Others, however, are concerned that some national rules
might interfere with state or international laws.
The Government Paperwork Elimination Act. Enacted at the end of the 105th
Congress as part of the Omnibus Appropriations Act (S. 2107, P.L. 105-277), this
measure directed the Office of Management and Budget (OMB) to establish procedures
for executive branch agencies to accept electronic submissions using electronic signatures,
and required agencies to accept those electronic submissions except where found to be
impractical or inappropriate. By October 2003, executive branch agencies must provide
for the option of electronic maintenance, submission, or disclosure of information as a
substitute for paper. The Act gives full legal effect to electronic records produced and,
information collected from an executive agency using electronic signature services may
only be used or disclosed by those using the information for business or government
practices. These provisions do not apply to the Department of Treasury, if they conflict
with internal revenue laws or codes. On March 5, 1999, OMB proposed procedures to
implement the Act, outlining actions for specific federal agencies, much of which had
already been underway. No industry group responded negatively to the proposal. Some
privacy advocacy groups were concerned that OMB plans might create a reliance on
"identity-based" authentication techniques (i.e., using personal information to establish
one's identity) that could lead to larger storehouses of information collected by the
government and its contractors. In April 2000, OMB issued procedures and guidance to
federal agencies to permit private employers to electronically file their employee forms
with executive agencies. OMB, together with the National Telecommunications and
Information Administration, is conducting an study of the use of electronic signatures,
including its impact on paperwork reduction, electronic commerce, individual privacy, and
the security and authenticity of electronic transactions, and will report to Congress on
these issues.
Federal Use of Commercial Standards. To foster government use of electronic
signatures, the National Institute of Standards and Technology (NIST) adopting
commercial standards. In December 1998, in response to the National Technology
Transfer Act of 1995 (P.L. 104-113) and direction from OMB (Circular A-119, February
10, 1998), NIST approved an interim Federal Information Processing Standard (FIPS) to
allow federal agencies to use the RSA digital signature standard (the de facto commercial
standard developed by RSA Data Security, a cryptography company). Prior to that time
the only such standard adopted by the federal government was the Digital Signature
Algorithm (DSA), developed by the federal government for electronic data transfers
between federal agencies. DSA, however, does not support confidentiality, unlike RSA
and other private sector digital signature standards. The RSA standard was approved by
the Secretary of Commerce in January 2000, which is expected to increase its use by firms
that conduct business with the federal government. NIST is also reviewing a third digital
signature standard, called Elliptic Curve Cryptography (ECC). Adopting a third standard
would likely produce a more competitive market for digital signature software, and an
increase in its use in both government and industry.
Legislation in the 106th Congress. Several bills were introduced in the 106th
Congress regarding electronic signatures. The Millennium Digital Commerce Act (S. 761,

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Abraham, and its companion, H.R. 1320, Eshoo, both introduced March 25, 1999)3 and
the Electronic Signatures in Global and National Commerce Act (H.R. 1714, Bliley,
introduced May 6, 1999) were intended to permit and encourage the continued expansion
of interstate electronic commerce through the operation of free market forces. Each of
these bills provided for the legal recognition of electronic signatures and records,
preempting state electronic signatures laws until the states enact uniform standards.4 H.R.
1714 was more explicit than S.761 in directing the Department of Commerce (DOC) to
report to Congress on the impediments to foreign acceptance of electronic signatures and
records, and to promote their use in interstate and foreign commerce. A state law would
supersede this legislation only if it specifies alternative procedures for the use of electronic
signatures, and is enacted within two years of enactment of this bill. H.R. 1714 also gives
legal recognition to electronic securities trading, notwithstanding state laws, and authorize
the Securities and Exchange Commission to prescribe implementing regulations. The bill
does not apply to certain proceedings, such as wills, trusts, adoption, or divorce
documents. The House Commerce Committee approved H.R. 1714 (amended) July 13
(H.Rept. 106-341, Part 1, September 27); the bill was then approved by the House
Judiciary Committee (H.Rept. 106-341 Part II, October 15), and passed the House
(amended) November 9, 1999.
Unlike H.R. 1714, S. 761 was limited to commercial transactions between private
parties that affect interstate commerce, and allowed parties to a transaction to determine
the technologies and business methods to be used in the execution of an electronic
contract. S. 761 established principles for the U.S. government to follow in international
negotiations regarding the use of electronic signatures to facilitate electronic commerce,
and directed DOC and OMB to report on federal laws and regulations that might pose
barriers to electronic commerce. S. 761 was approved by the Senate Commerce
Committee July 30 (S.Rept. 106-131) and passed the Senate November 19, 1999.
Business and industry groups supported both H.R. 1714 and S. 761. Some states have
endorsed one or the other bill. On August 4, 1999, OMB issued a Statement of
Administration Policy (SAP) supporting the passage of S. 761. On November 8, OMB
issued an SAP opposing passage of H.R. 1714, stating that it unnecessarily deprives
consumers of protections under current law, deprives regulators of the ability to ensure
that electronic disclosures and notices under existing statutes will be made in a meaningful
way, and preempts state laws too broadly. Many consumer and privacy advocacy groups
and individuals opposed one or both bills, arguing that some of their provisions may be
overly broad or undefined and might create disadvantages for consumers who do not have
updated computers or access to the Internet. Some also criticized the legislation as being
unnecessary, since the states are already working toward enacting electronic signature
statutes. Others, however, argued that companies are not offering many new electronic
services out of fear that electronic transactions would not be legally recognized without
national legislation. House-Senate negotiations on this legislation continued for several
months, and the conference (H.Rept. 106-661) was filed on June 8. The conference report
passed the House on June 14 (426-4) and the Senate on June 16 (87-0), and was signed
3 No further action was taken on H.R. 1320 after committee referral.
4 In July 1999, the National Conference of Commissioners on Uniform State Laws approved a
model state law, called the Uniform Electronic Transactions Act, that adapts existing commercial
law to govern electronic commerce. To take legal effect, the model will have to be adopted
separately by each state legislature, which could take several years for some states.

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into law (P.L. 106-229) by the President (using a smart card) on June 30, 2000. Other
bills introduced in the 106th Congress (but not enacted) with electronic signature
provisions include:
! Paperwork Elimination Act of 1999 (H.R. 439, intr. February 2, 1999)
intended to minimize federal paperwork demands on small businesses,
educational and nonprofit institutions, federal contractors, state and local
governments, and others through sponsorship and use of electronic
signatures and records. Bill adds to provisions of the Government
Paperwork Elimination Act by directing OMB to report on progress of
federal agencies in promoting use of electronic signatures and records by
businesses and individuals, without hindering use of paper-based
transactions (passed House without committee referral, February 9;
received in Senate Committee on Governmental Affairs February 22);
! Digital Signature Act (H.R. 1572, Gordon, intr. April 27, 1999) would
require NIST to adopt guidelines and standards for use of digital (and
electronic) signatures by federal agencies, evaluate commercial products
and certificate authority services, and release to the public a list of those
meeting federal standards. It would establish a national policy panel to
study the use of digital signatures in private sector electronic transactions
(referred to the House Committee on Science);
! Internet Growth and Development Act of 1999 (H.R. 1685, Boucher,
intr. May 5, 1999) contains a provision to provide for the recognition of
electronic signatures for the conduct of interstate and foreign commerce
(referred to Committees on Commerce and Judiciary);
! Computer Security Enhancement Act of 1999 (H.R. 2413,
Sensenbrenner, intr. July 1, 1999) contains a provision (adapted from
H.R. 1572) directing NIST to develop electronic authentication (i.e.,
electronic signature) infrastructure guidelines and standards for use by
federal agencies to effectively utilize electronic authentication
technologies in a manner that is sufficiently secure and interoperable to
meet the needs of those agencies and their transaction partners (referred
to Committee on Science, marked-up by Subcommittee on Technology);
and
! Electronic Securities Transactions Act (S. 921, Abraham, introduced
April 29, 1999) would facilitate and promote electronic commerce in
securities transactions involving broker-dealers, transfer agents and
investment advisers (referred to Committee on Banking). This bill is
equivalent to the section of H.R. 1714 addressing electronic securities
trading, but was introduced separately for jurisdictional purposes.
Privacy. Privacy is a major concern associated with the widespread use of
electronic signatures. If electronic signatures are stolen or sold by unauthorized persons,
the use of fraudulent copies could not only thwart the goals of providing reliable
authentication, data integrity, and nonrepudiation, but also potentially lead to legal
problems for individuals who become victims of identity theft. The continued growth of
electronic commerce is a shared goal by nearly all interested parties. At issue, however,
is balancing that goal with appropriate limits on the scope of a national law governing and
encouraging the acceptance of electronic signatures and records in government and the
private sector.