Managing the Law of Technology.

• Author: MONTANA, JOHN C.

Managing technology in any manner is a difficult proposition. Technology growth is a decentralized activity; new ideas and new developments come from many sources, each with their own notions of the future and their own assumptions of how technology ought to be managed. Consequently, the idea of technology management is somewhat at odds with technology development, since the concept of management inherently presumes some sort of centralized control, while modern technology development flourishes precisely because it is not centrally managed.

Technology and the Law

Technologies with legal implications face the same situation with respect to their management by the legal establishment. Centralized control and management seem, on one hand, highly desirable; yet the nature of the legal system and the legal process is inherently decentralized. Consider a recent example: electronic signatures.

The advent of electronic commerce and electronic analogues of paper documents has created a demand for electronic signature technology. Both the technology field and the law have responded to this demand; there are now several electronic signature technologies available, and a number of laws authorizing the use of electronic signatures on the books. When examined in detail, however, these two responses illustrate the conundrum facing the legal management of technology.

Initially, the variety of technologies appears to be a boon -- pick the most convenient, secure, cost-effective, or whatever priorities dictate and you are on your way. Aside from determining which technology is most suitable -- a difficult issue in and of itself -- the question of legal acceptance immediately arises. This is unavoidable: a signature of no legally binding effect is of little value, regardless of how cost effective or provably valid it may be.

The answer to the question seems reassuring: many state and federal laws appear to permit the use of electronic signatures. Upon closer inspection, however, reassurance is displaced by uncertainty. A digital signature technology can be any of several things -- a stylus and pad arrangement that produces a digital version of an actual signature, a personal identification number imbedded in a document, a scanned image of a pen and ink signature pasted to a document, a digital authentication stamp, or any of several other possibilities.

Which of these is acceptable? It depends. A few digital signature standards actually specify technical parameters in a manner that allows relatively easy determination of what technology might meet the standard, but most do not. In fact, many contain no technical standard of any kind. The reader gets no indication of what is acceptable and therefore no guidance as to Whether a signature created by such technology would have any legally binding effect.

Furthermore, although some digital signature laws do have technical standards, they are necessarily of limited scope. They either cover a single, narrow subject area because an...