sou · GQB3112 · 2003-01-01 00:00:00 — At one stage of the relatively short historical development of this type of applied information technology, the SGML com- munity was a closed one, not particularly amenable to dis- cussions, for instance, concerning the pros and cons of various database technologies. Today the situation has changed in that XML can be said to play a central role in more or less any tech- nical solution involving web technologies, telecommunications as well as conventional electronic data processing and to some extent also techniques having their origin in artificial intelli- gence. All of this may no doubt be elementary to the already ex- perienced user of the above-mentioned family of standards. Prac- tical experience has shown, however, that a common misunder- standing at the management level of an organisation, be it a pri- vate enterprise or a public agency, is that XML (in the broad sense) involves choosing a particular system design and possibly even software product. Representatives of the industry as well as other promoters of standardised markup languages thus have the educational task of explaining the underlying ideas of a non- proprietary approach to data management. Otherwise there is an obvious risk that such a lack of understanding may turn out to be a major obstacle for widespread use of XML. In fact there may be legal advantages associated with awareness of the inherent ca- pacities of XML. The choice of system development approach as such may have an impact on a courts assessment, for instance, of whether an organisations archival system is to be regarded as accurate or negligent in terms of meeting legal requirements of evidence by track of version-dependent legacy data. The pharmaceutical and vehicle industries are typical examples of branches heavily burdened by legal requirements of documenta- tion. However, it may not be a trivial task in a litigation situation to explain to a court just how the use of XML manifests a partys legal awareness. To summarise, although XML may be described as a tool, it is not just any kind of tool. It is not a physical object like a pen or a paper. may XML be described as a mechanical mechanism resembling, for instance, the functions of a typewriter. XML is instead a tool with strong infrastructural potentials closely inter- linked with IT-support for information retrieval, document man- agement and knowledge management. From a legal point of view, this deserves particular attention. The term infrastructure is often used to describe the fundamental functions of society. It can refer to both hard infrastructures, such as the road system, or soft infrastructure, such as social systems and various types of information systems. The basic components of a legal infrastructure, which may be regarded as soft according to the above-mentioned classification, include various forms of (a) data processing, (b) documentation, (c) communication, and (d) organisational forms. The introduction of information technology into society has brought about dramatic changes to all these components. For ex- ample, data processing, which was a manual activity in the past, was transformed step by step during the 1970s and 1980s into automated data processing of cases. Today, automation of admin- istrative activities, in the sense of legal decision-making based on or partly automated routines, can be said to be a charac- teristic feature of administrative procedures. Another type of le- gal data processing takes place in connection with the develop- ment and conclusion of contracts. The technical possibilities of electronic conclusion of contracts with the whole world as a market place warrants a discussion in this area concerning the fundamental legal principles underlying offers, acceptance, evaluation of evidence, etc. XML obviously has a role to play here as a tool for improved legal system management considering its potentials for handling version-dependent text units over time. Earlier generations of lawyers would naturally associate the concept of documentation with physically demarcated paper documents, which could be geographically located. In the age of the Internet this view is not longer valid. It is no longer obvious that documentation consists of paper documents. In many cases it may come in different forms of electronic documents, which are of declaratory acts, proprietary rights, criminal contents, etc. XML clearly mirrors this development. Mention should here be made of such initiatives as XML Signatures that explicitly ad- dress the need for incremental signatures, which, for instance, may be of relevance in a situation of successive drafting of con- tracts. In a similar way (voice based) analogical communication services are used less frequently in legal work. Both civil ser- vants communication with the citizens, and lawyers contacts with their clients are increasingly dependent instead on digital and mobile services. In , for instance, the comprehensive systems for the dissemination and collection of information by the authorities are based on a strategy that may be referred to as a kind of XML-labelling. The system for Dissemination and Col- lection (Sw. SHS) constitutes the public administrations invest- ment in order to create a general communication link to secure information exchange through the open Internet. In contrast to electronic trading systems, which are usually designed with a fo- cus on business transactions in a certain sector, SHS constitutes a general platform, which has not been especially programmed for a certain sphere of activity. As regards organisational forms we have a strong tradition of working with nationally well-demarcated larger and smaller entities. This is especially clear as regards the information system of public administration which has developed in with nationally defined government authorities which are divided into central and local organs, etc. Information technology as such and the Internet as a concept have provided leverage for loosening up boundaries between authorities as well as national demarcation lines. The private sector may be characterised by even more all- embracing, network-based and global organisational forms in recent years. It is evident that XML supports or rather is an inte- grated part of this infrastructural shift. Obviously this gives rise to a whole series of substantive law issues, for instance, how to apply privacy legislations to transborder flows of personal data. 5 Interaction of law and IT In the era of IT-supported document management there is a growing need for version control in a long-term perspective. Document markup, including linking techniques of different kinds, is attractive as a general value-adding method. At the same time, the introduction and widespread use of more and more ad- vanced digital document management systems is resulting in a very complex environment for text handling. Furthermore, open systems are a major development trend in todays communica- tions networks. One important concern, therefore, is how best to secure trails of authorisations, alterations included. pre- cisely, this is a matter of information security policies mirroring the norms that govern an organisation, such as who has a right of access to what, without knowing beforehand who will be claim- ing this right of availability. Considering that the major characteristics of normative documents are complex, interdependent text units, shifting in content over time, interpretable only in context, we can extract one key issue, and that is the question of a methodological ap- proach to regulatory management. If the challenge in terms of a required infrastructure is overcome, we can indeed expect the added value so often promised by . There is otherwise an obvious risk of turnback or perhaps even failure. The cornerstones in a system development approach meet- ing the fundamental requirements of modern regulatory man- agement are (a) document markup, (b) information security, and (c) legal awareness. XML naturally represents the core method as regards document markup. From the point of view of regulatory management, XML offers vital possibilities of transparent modu- larity in a structural context. The conventional understanding of information security is that it comprises availability, confidential- ity (secrecy), integrity, accountability and non-repudiation. On- going work at IETF (The Internet Task Force) on securing web-based documents will of course serve as an impor- tant input. In this context the focus of attention is on the XML Signature and Encryption initiatives. The application of a crypto- graphic method of progressive (incremental) security enhance- ment may serve as supplement. Finally, legal awareness is re- quired in terms both of methodological aspects of legal system development and of substantive law issues related to the use of electronic signatures, electronic evidence, etc. The last men- tioned perspective might also be expressed in terms of possible legal validity as proof of actions of different kinds. 5.2 Electronic signatures as an illustration There is no doubt that electronic signatures and other means of secure electronic messaging are becoming established in society. The main question of law is whether, how, and to what extent electronic signatures can be given the same legal effect as hand- written signatures. This will ultimately lead to the question of the evidentiary value of electronic signatures. This presentation does not aim to provide a detailed analysis of these questions in the light of different jurisdictions. Here it will be sufficient to say that in general civil law has a relatively limited number of formal requirements concerning handwritten signatures. Typical exam- ples where such signatures are required include consumer credits and real-estate purchase. In family law, testamentary dispositions and marital property, agreements are often not valid without handwritten signatures. In administrative law it is more common to require signing, since processing of cases often presupposes submission of signed documents. The implementation of the EC Directive on a Community framework for electronic signatures (1999/93/EC), which had to be enforced by the Member States by 19 2001 at the latest, clarifies certain legal situations. The overall objective of this Di- rective may be said to be to co-ordinate the legal and technical work of the Member States as regards electronic signatures, re- moving in this way the obstacles to the internal market, espe- cially as regards e-commerce. The EC Signature Directive con- tains provisions relating to the legal effects of electronic signa- tures and the organs that may come to be able to offer electronic certificates verifying the genuineness of such signatures. However, there is still a lot of work to be done before com- puter transactions can be performed on a daily basis with the help of modern information and communications technology in a suf- ficiently secure way. The latter expression refers to the need of minimising uncertainties as regards both different legal issues and practical (partly technical) circumstances surrounding elec- tronic handling of documents. It may also be said that business models and administrative traditions have not yet been fully adapted to the modern, more secure methods of information ex- change. Notwithstanding the above, the Directive can be said to be innovative from perspective in that electronic sig- natures under certain circumstances have been granted legal en- forceability (see Article 5), which was not the case earlier in those countries which lack the principle of free examination and evaluation of evidence. Applicable Nordic law shows in this respect that when the legislator uses the term written, electronic communication may be allowed to take place. The requirement of written procedure is posited here primarily as opposed to oral procedure. When a stat- ute contains expressions such as signature or that must be signed by the party in question, or the like, then this cannot be taken to mean that electronic documents or signatures may be al- lowed to replace traditional paper documents and manual signa- tures at the present stage of technical development. However, special rules or established practice may permit the use of elec- tronic form after all. As regards evidentiary value, the state of the law is a bit clearer in the sense that there is no doubt that the principle of free examination of evidence characterises Nordic law. In general terms, this means that there are no limitations on the sources of evidence that may be used at a trial, and also that a judge is not bound by any special regulations regarding the way in which dif- ferent types of evidence shall be evaluated. does the legisla- tor seem inclined to introduce any general rules on the burden of proof which would be dependent on the medium used in a given case. The important factors are instead considered to be the par- ties internal relations, the character of the legal document, etc. One can therefore conclude that Nordic courts encounter no for- mal obstacles to considering system evidence in the sense of elec- tronic documents, electronic signatures and other components of information systems. 5.3 XML related security-enhancing factors The discussion above boils down to a need for a strategy to han- dle legal uncertainty characterising the information society of to- day here illustrated by the EC Signature Directive. This manifest need for a legal strategy may in practical terms be transformed to a focus on XML related security enhancing factors. The table be- low presents an overview – not an exhaustive list – of what is here referred to as XML characteristics, means and legal incen- tives. Accessibility in a long-term per- track of legacy data ments by means of Public information supply (possi- ble state responsibility) Commercial products (avoiding tory as a basis for tion on, e.g. CD- , on-line, print Public and private sectors: Container of legal di- (Official or secret data) (Mirroring acting parties authori- (Labelling of rights and its own- For instance, XML Public and private sectors: Normative as well as other legal requirements of authentication, validation and signed documents (text entities) The approach described above serves as a basis for the so called – – carried out at the Swedish and () at the , . The project will run during the period 2002-2008.1 The SLIM project is founded mainly on previous practical and theoretical experiences of using SGML in the legal domain – the Corpus Legis project together with expertise from at the ence (SICS).2 Because of the early stage of commercial tools that combine XML capability and digital security enhancing techniques, one aim of the is to have an impact on the development of future commercial XML tools for legal purposes. This presentation is based on the standpoint that XML may be regarded as a tool for legal validity in a security context. A point is made of the fact that XML ought to be understood broadly and that the tool metaphor has implications beyond trivial physical and mechanical ones. The term docware may in this context be used as a label for XML-related technologies clarifying the cho- sen approach to document management in a given situation. In terms of general development trends we have reflected upon how XML has become an integral part of modern infra- structures with obvious legal implications. precisely, this has a bearing on modern means of data processing, documenta- tion, communications and organisational forms. The fact that there are still so many legal uncertainties in terms of lack of foreseeability concerning legal validity of ac- tions of various kinds calls for special attention. A pragmatic ap- proach is presented in terms of regarding various XML character- istics as security enhancing factors. The attraction of combining XML with conventional security-enhancing methods lies in the need for transparent, content-dependent and context-sensitive management of legally relevant text units over time. Legal awareness in this context may indeed enhance trust in the infor- mation society. Legal Sources via IT The for was a research project conducted at the Swed- ish and between 1993-1997.1 The results of the study have subsequently been utilised in nu- merous evaluations of commercial IT-products developed for the legal market,2 and the theoretical models developed in the project are also a basis for practical assignments and teaching activities in the in and IT,3 offered by the at . The aim has been for this work to contribute to the identifi- cation of the future requirements of the legal domain, with regard to legal information systems and other services traditionally re- lated to law libraries. The intention has also been to discuss strategies and appropriate features that may be developed in or- der to meet such requirements. At a somewhat more detailed level, one objective of the study has been to identify and analyse factors of relevance for the evaluation of legal IT products and in the following sections these aspects of the study are summarised. is professor at the Faculty of law, univer- His doctoral thesis in 1992 treated fundamental issues of the applica- tion of artificial intelligence in the field of law. He has written studies on le- gal libraries and on legal risk analysis. He is presently involved in a research project on the methodology of law-making. The full documentation of the project is available in , The for : and of the Future, : 1999. The evaluations have continuously been documented in Juridisk Tid- skrift, one of the major in . So far, some 20 products have been reviewed. 2 Evaluation of IT products for law The initial aim was to present a model that could be used in order to evaluate IT-related products and services and, more precisely, to formulate some criteria for the evaluation of phenomena of this kind. This approach was motivated by the fact that in the le- gal domain the knowledge of this development is rare and not very well documented. At the same time, there is doubt that in many cases it is necessary to make choices regarding future IT investments in order to survive as a lawyer or a legal organisa- tion. In this respect the potentialities with respect to rationalisa- tion and quality enhancements are too important to be neglected. Consequently, the ability to evaluate various products and ser- vices is crucial. With few exceptions, early studies of products for the legal domain have focused on technical aspects.4 In , for instance, during the 1970s and 1980s several user surveys were completed, focusing on the first national legal information retrieval system, Rättsdata. These attempts were tentative and the questionnaires used in these studies basically reflected concrete technical issues, mingled with vague ideas about user friendli- ness. Simultaneously, an awareness of the need for legal stan- dards was present. general considerations about such stan- dards remained, however, inarticulate, and the relevant aspects to be investigated were by no means obvious. Technical aspects are, of course, still important, but as the development of IT continues, it is becoming more and more obvious that systematic evaluation must include a number of additional aspects. To accomplish this, several approaches are possible, and in this study a few of them were outlined. An attempt was also made to relate a number of such aspects to each other, in order to create a practical model for evaluation. The starting point for this undertaking was the assumption that all legal information systems are to a large extent reflections of choices concerning i) information content, ii) technical aspects and iii) organisational arrangements (see figure 1 below). , Legal Decisions and . In: P Seipel, Protection to Knowledge . Deventer: Kluwer and Taxation Publishers 1990 (Computer 5) at 224. In this respect the study was devoted to the requirements con- nected with legal information, as these may be understood from an analysis of legal work processes and legal work situations of various kinds. Legal information was viewed in this context from the point of view of methodology. That is to say, the ambition was not to make an inventory of emerging legal problems and accompanying requests for regulations. was this an attempt to try to predict legal issues of a substantial nature that can be expected to attract interest in the future. Instead, the focus was set on how legal information as such is employed and utilised in legal work processes, as they can be described at various levels. In other words, the aim was to provide a general description of the requirements that may be related to legal information – what- ever legal domain they appear in. In this undertaking various functions of legal information and their relationship to legal work situations were investigated, the assumption being that an analy- sis of this kind should be useful for the development of future strategies of law libraries and other institutions and persons con- cerned with the administration of legal information. e.g. network components computer programs computers Figure 1: Basic components of legal IT applications and Legal IT systems Thus, a somewhat more precise goal was that the study should enhance the understanding of the kind of legal products and ser- vices that may be useful to develop, and, furthermore, that the work should provide some indications of how legal information management resources ought to be allocated. In this undertaking three different levels at which various types of legal require- ments can be defined were addressed – (a) the general, jurispru- dential level where also the governments administration of pub- lic legal information has a decisive influence, (b) the organisa- tional level, reflecting presuppositions of the organisations work- ing with legal information, and (c) the situation of the individual lawyer. (a)The analysis of general requirements clearly showed that the so-called doctrine of legal sources gives strong indications as to how legal information ought to be handled. Despite this, it be- came apparent that it is impossible to work out any code comprising an elaborate design strategy for legal IT- systems based on the existing descriptions of the content and hi- erarchical order of legal sources. In this respect the law is an all too complex phenomenon. It is also obvious that legal sources are ascribed various degrees of importance in different jurisdic- tions. An important drawback of a general design strategy based on an analysis of the doctrine of legal sources is furthermore the fact that conditions in different law areas vary, and that all de- velopment activities concerning legal IT systems must be ad- justed to the domain in question. The complications following from the domain-dependent nature of legal information must not, however, overshadow the fact that the doctrine of legal sources actually provides a number of standards which have to be taken into consideration in all un- dertakings dealing with legal information systems. It must also be observed that the analysis of the doctrine of legal sources clearly indicates a number of quality aspects which reflect the re- quirements of society at an aggregate level. Important illustra- tions in this respect are the principles of freedom of information, standards concerning free exchange of information, the impor- tance of promulgation, etc. It is also noticeable that the doctrine of legal sources makes explicit a number of factors that can be utilised in order to de- limit and select materials in the process of legal information management.