The world of e-signatures has changed dramatically over the past decade, with a proliferation of technologies such as the Internet of Things and cloud services that offer an array of digital tools for people to manage their online lives.
Now, many people have an interest in preserving the digital signature, or e-mail signature, of their personal data, whether that be the address or the email signature itself.
But it’s also become an increasingly difficult problem for the government to deal with, as e-privacy and privacy groups argue that electronic signatures can provide a valuable tool for citizens to protect their privacy and to identify criminals.
“Electronic signatures are the first thing that we think about when people are signing documents and we’re just not using it,” said Paul Pomerantz, an attorney with the Electronic Privacy Information Center (EPIC), a group that has been working to make sure electronic signatures are used properly.
“It is the first piece of data that’s being digitally signed by a person,” he said.
Pomerants’ group has been pressing the Obama administration for an update on electronic signatures, saying that there is currently a backlog of thousands of federal documents that are not currently being digitally verified.
The backlog of federal e-file requests has been growing, according to EPIC, which has been pushing for an updated electronic signature standard since 2014.
“What’s going on is there’s been a significant drop in the number of federal electronic signatures that have been processed in the past five years, and that’s an issue,” Pomerantes said.
“So, we’re seeing a lot of people coming to us with this kind of problem.”
EPIC has been lobbying the Obama Administration to update the federal electronic signature system.
In 2016, EPIC helped draft a proposal that would make it easier for individuals to create electronic signatures on federal government documents, and has also lobbied the Obama White House to create a national standard for electronic signatures.
But the Obama administrations response to the e-formal signature problem has been more than just a call to action.
“When you talk about this, you have to think about the whole government system,” Pominants said.
For years, the federal government has been using electronic signatures as a tool to track down and prosecute criminal activity.
In the mid-2000s, the FBI launched a program called the Electronic Identification System, or EIS, to help authorities track down people who are committing fraud by using fake identities.
In 2005, the Federal Bureau of Investigation began using electronic signature technology to track the movements of drug dealers, according the Washington Post.
“The federal government and the state governments are using these technology tools to try to catch the criminal elements,” said Pomerant.
“There’s a lot more criminal activity going on in the United States than people think.”
EFF is currently working on a bill that would require the federal Electronic Identification Systems (EIS) to be able to use electronic signatures for their records.
“We believe it is vital that the federal EIS system be able be used to track those who are using digital signature technology for their crimes,” said Jessica Rich, an EFF staff attorney.
The Electronic Communications Privacy Act of 1996, also known as ECPA, was passed in 1996 to allow the federal federal government to keep track of what kinds of electronic communications are being sent or received in the US, and to ensure that these records are accurate.
It also requires the federal agencies to update their records when new technology comes online.
“These are some of the most significant steps forward for electronic privacy in US history,” said Rich.
But in 2014, the Obama Justice Department said that it had no plans to update ECPA.
The Obama administration has also been taking a tough stance against the use of electronic signatures in the court system, a position that is still being challenged by a group of private attorneys, many of whom argue that e-sigs can be used by the government for surveillance.
The Federal Rules of Criminal Procedure (FRCPR), which govern the use and disclosure of electronic records, states that the FBI and the Department of Justice “shall use electronic signature technologies for criminal investigations” and that “[n]o agency shall utilize electronic signature systems to conduct criminal investigations.”
But the FRCPR has been updated to require the FBI to keep electronic records and to update them when new electronic technologies come online.
And, in 2017, the Department, with the help of EPIC and the American Civil Liberties Union (ACLU), filed a lawsuit against the FBI in federal court in New York challenging its use of eis signatures in criminal investigations.
“That’s just not going to happen,” said Elizabeth Warren, an ACLU attorney and a senior policy adviser at EPIC.
“They’re going to have to find a way to make the FCRPR more consistent with what they’re doing now, or it’s going to be a problem.”