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Technology Neutrality and
the Canadian Uniform Acts
John D.
Gregory
Ministry of the
Attorney General (Ontario)
Montreal, Fourth
Law and the Internet Conference, October 2002
[The views
expressed here are not necessarily those of the Ministry.]
Introduction
This brief overview of Canada’s uniform
legislation on electronic communications – the Uniform Electronic Commerce Act
and the Uniform Electronic Evidence Act – sets out their ambition to make the
law media neutral in a way that is also neutral as to the technology to be
used. It gives examples of statutory provisions. It then canvasses the
advantages and disadvantages of technology neutrality and reviews some of the
safeguards contemplated to mitigate the disadvantages. It makes occasional
references to corresponding provisions in the Quebec legislation.
Media neutrality
The purpose of the Uniform Electronic Commerce
Act (UECA) ([1999] Proceedings of the Uniform Law Conference of Canada 380,
http://www.ulcc.ca/en/us/index.cfm?sec=1&sub=1u1) is to remove some
significant legal barriers to the effective use of electronic communications in
Canada. It aims to help make the law “media neutral”, i.e. able to work the
same way regardless of the medium of communication used for legal information.
(Most of its provisions are directly inspired by the United Nations Model Law on
Electronic Commerce (1996),
http://www.uncitral.org/english/texts/electcom/ml-ec.htm.)
The UECA does this by proclaiming a general ban
on discrimination on the basis of medium:
Information shall not be
denied legal effect or enforceability solely by reason that it is in electronic
form. (section 5)
The “solely” is important. The law may impose
requirements on information that cannot be satisfied electronically. These
requirements will still be effective, and may bar effective legal use of the
information in electronic form.
Nothing in
this Part limits the operation of any requirement under [enacting jurisdiction]
law for information to be posted or displayed in specified manner or for any
information or document to be transmitted by a specified method.
(section 15.)
The UECA also provides for interpretation of
rules requiring particular paper-based manifestations so that the rules may be
satisfied electronically.
A requirement under [enacting
jurisdiction] law that information be in writing is satisfied by information in
electronic form if the information is accessible so as to be usable for
subsequent reference. (section 7)
A requirement under [enacting
jurisdiction] law for the signature of a person is satisfied by an electronic
signature. (section 10)
A requirement under [enacting
jurisdiction] law that requires a person to present or retain a document in
original form is satisfied by the presentation or retention of an electronic
document if,
(a) there exists a reliable assurance as to the
integrity of the information contained in the electronic document from the time
the document to be presented or retained was first made in its final form,
whether as a paper document or as an electronic document;
(b)
where the document in original form is to be provided to a person, the
electronic document that is provided to the person is accessible by the person
and capable of being retained by the person so as to be usable for subsequent
reference. (section 11(1))
(a) the criterion for assessing integrity is whether
the information has remained complete and unaltered, apart from the introduction
of any changes that arise in the normal course of communication, storage and
display;
(b) the standard of reliability required shall be
assessed in the light of the purpose for which the document was made and in the
light of all the circumstances. (section 11(2))
The Uniform Electronic Evidence Act ([1998] Proceedings
of the Uniform Law Conference 164,
http://www.ulcc.ca/en/us/index.cfm?sec=1&sub=1u2 ) also aims at media
neutrality. It provides a means of satisfying electronically the “best evidence
rule”, which requires documentary evidence to be presented to a court as an
original. The notion of “original” is problematic for electronic documents.
[In any legal proceeding,] Subject to Subsection (2),
where the best evidence rule is applicable in respect of an electronic record,
it is satisfied on proof of the integrity of the electronic records system in or
by which the data was recorded or stored. (section
4(1))
Technology neutrality
The examples
just cited show that the Uniform Acts are technology neutral: they
do not prescribe the use of any
particular technology to achieve the legal results they set out. In this, as in
their goal of media neutrality, they share the character of Quebec’s Act to
establish a legal framework for information technology. (The character they
do not share is minimalism; Quebec has shown that a technology neutral statute
need not be minimalist.)
Advantages of technology
neutrality
1.
Technology neutrality is flexible.
It allows users of electronic communications to decide what is appropriate to
them, in expense, in deployment, in security and in reliability. One size does
not fit all. High value transactions between strangers call for different
methods than routine exchanges between people who know each other well.
Dealings with public authorities may raise different policy considerations than
entirely private communications. (The UECA expressly allows “government” to make
additional rules for incoming electronic documents.)
2.
Technology neutrality is timeless.
It allows the technologies of communication to evolve without having to change
the legal rules with every new version of hardware or with every new method of
encryption. The evolution of technology is so fast that spelling out a
particular technology in legislation would risk being out of date even by the
time the law received Royal Assent.
3.
Technology neutrality is fair.
It allows designers of technology to solve the challenges of reliability,
security, and accessibility (among others) however their imagination inspires
them to do so. It does not keep technological development within narrow borders
in order to have legal effect. It does not “legislate market winners” but
permits competition and innovation to improve how technology may achieve the
legal results.
Disadvantages of technology
neutrality
1.
The risk of error.
Since the statute does not tell users of information technology how to achieve
the results necessary to have legal effect, users may choose means that prove
insufficient. They are at least in a position of uncertainty. This can be
reduced somewhat by express agreements between parties about using particular
technology, but such agreements may or may not be recognized by the courts.
2.
The risk of tampering.
The statute does not set out any security procedures for legally effective
electronic documents. As a result, people may create documents that are exposed
to tampering. Changes to electronic documents may be very difficult to detect,
if the appropriate controls are not used. This creates an increased risk of
fraud or at least interference with legal relations.
3.
The risk of degradation.
The statute does not tell users what kinds of system to use and how the system
should be maintained. Electronic communication and storage involve the transfer
of data among different kinds of system – hardware, software and storage media
may all change over relatively short periods – and data may be lost,
unintentionally and barely perceptibly, with each transfer. The longer one
needs to keep the information in electronic form, the greater the risk of such
loss.
Safeguards for technology neutrality
1.
Consent. The
UECA does not require anyone to use or accept documents or information in
electronic form. (section 6. cf. Quebec’s statute, s.29) The right to say No
includes the right to say Yes, if … . In other words, the statute makes clear
the parties’ control over the risks of technology neutrality. If someone is not
comfortable with a particular form of electronic communication, then that
communication can be refused. This does put some burden on parties to
electronic communication to be aware of the risks and means of reducing them.
2.
Standards. A
number of governmental and private-sector bodies have developed standards, i.e.
rules or guidelines for effective use of technology. Parties are permitted, and
even encouraged, to find appropriate standards for their uses of technology to
comply with them and to require compliance of those with whom they deal
electronically. The Uniform Electronic Evidence Act allows the court or
tribunal to refer to standards as required:
For
the purpose of determining under any rule of law whether an electronic record is
admissible, evidence may be presented [in any legal proceeding] in respect of
any standard, procedure, usage or practice on how electronic records are to be
recorded or stored, having regard to the type of business or endeavour that
used, recorded or stored the electronic record and the nature and purpose of the
electronic record.
(section 6)
Compare the Quebec statute’s detailed provisions on fixing standards (sections
64 to 68.)
3.
Exclusions.
Some uses of electronic communications may be considered too risky for use under
a technology neutral statute. The UECA expressly does not apply to wills,
personal powers of attorney, transfers of land, and negotiable instruments. The
first two classes of document are often created by individuals without
professional, much less technical, advice, and it was thought that the risk of
tampering was too great. Transfers of land may also be subject to similar
risks, but they also involve third party rights, and usually some public
registration system. Many Canadian provinces do allow for electronic
communications about land transfers, but they spell out in more detail the
security and sometimes the technology requirements that apply. Negotiable
instruments must be unique documents – since the document itself carries value
that is transferred from one holder to the next. Technology cannot yet create a
unique but transferable electronic document. (Some people say that if it does
not exist, it need not be excluded from the statute! Most implementations of
the UECA have adopted the exclusion, however.)
Conclusion
Much of the world’s
legislation removing barriers to legally effective use of electronic
communications is technology neutral, inspired by the UN Model Law mentioned
above. Canada – including Quebec – is decidedly in the mainstream of such
legislation. The concept of technology neutrality is attractive in principle,
but it has its downsides. Time will tell if the choices of the uniform
legislation strike the right balance, or if Quebec’s neutral but more detailed
approach works better, or if technology does have a place in our statute books
after all.
Further reading
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