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ERN LAW MOD ANDTES STA

PRACTICABILITY OF USAGE OF SEVERAL TYPES OF ELECTRONIC SIGNATURES DURING WORK IN STATE INFORMATION SYSTEMS DOI: http://dx.doi.org/10.14420/en.2013.5.5

Artyom Yuryevich Nagdaev, Candidate for a Master’s Degree of the International Institute of State Service and Administration of Russian Presidential Academy of National Economy and Public Administration,

e-mail: yhyji13@gmail.com.

Abstract.

Keywords:

The above-mentioned article, on the basis of practical experience of usage of electronic signatures in state authority bodies, as well as of law enforcement of rules and regulations of the Federal Law dated 06.04.2011 No 63-FZ «On electronic signature» in the course of exchange of electronic documents signed with electronic signature, an approach is considered of practicability of usage of one type of electronic signature by authorized persons of state authority bodies during work in several state information systems. state information system, electronic document flow, electronic signature.

Society is witnessing a significant year-to-year growth in the role of state information systems (hereafter referred to as SIS), both in the everyday life of the population and in the activities of the officers of public authorities. The very fact that information about government services is published on the Internet promotes the active transposition of state administrative procedures into the electronic space. Ubiquitous access to Internet services also has created a situation in which public services are, more and more often, rendered in the electronic space, rather than in the offices of civil servants and on the premises of state institutions.

An analysis of Russian laws, particularly those that were in force before 2009, leads to the conclusion that there are few regulatory legal acts that govern activities in the area of information law. According to its definition, «information law» is the branch of law that regulates social relations in the informational sphere and provides for the secure satisfaction of the informational needs of individuals, governmental authorities and economic agents .1 We find it necessary Bachilo I.L., Lopatin V.N., Fedotov M.A. Informatsionnoje pravo [Information Law] / under the editorship of B.N. Topornin. – Saint Petersburg: Publishing House of R. Aslanov «Juridicheskij tsentr Press», 2005.

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34 to emphasize the imperative need to develop legislation that would govern the creation and operation of SIS and that would enable the practical application of information law in the activities of public authorities.

As the foremost goal, the development of SIS implies the establishment of certain procedures that should be applied in the practical exchange of data in an electronic format, particularly a method to guarantee the relevance of electronic documents in the law. As specified in Section 4 of Article 11 of the Federal Law dated 27.07.2006 No. 149-FZ «On information, data processing technologies and information protection» and in Section 3 of Article 75 of the Arbitration Code of Judicial Practice of the Russian Federation, the status of an electronic document that is signed by means of an electronic signature (hereafter referred to as ES), shall be acknowledged to be equivalent to a hard copy version of the document.

Thus, the direction of an electronic document by means of SIS causes actions and legal effects that are relevant in the law.

The first law to govern relations in the course of electronic document management in Russia was the Federal Law dated 10.01.2002 No. 1-FZ «On electronic signatures» (hereafter referred to as Law 1-FZ). The aforementioned law neither provided for a distinction between different types of electronic digital signatures (hereafter referred to as EDS) nor set serious requirements for the software tools of certifying centers, whose function was to produce signature key certificates. However, Law 1-FZ specified the following elements: the information systems that could use an EDS key (incidentally, the law established only two variants); the procedure to suspend the signature key certificate; and the cases in which the seal must be substituted, etc. Many experts state that the main drawback of Law 1-FZ was that it prescribed the use of only one EDS technology and it did not provide for regulation aimed at consolidating the rights of a legal body to use its EDS. Supposedly, these very disadvantages prevented EDS from being applied on a large-scale basis across Russia.

The Federal Law dated 06.04.2011 No. 63-FZ «On electronic signatures» (hereafter referred to as Law 63-FZ) eliminated the shortcomings of Law 1-FZ and proved to be an important step in conducting paperless business. The law entitled natural and legal persons to receive an ES, which allowed them to perform actions that are relevant in the law in electronic form.

Law 63-FZ stipulates three types of ES, and furthermore, in contrast to the provisions of Law 1-FZ, it specifies that, for ordinary and non-expert signatures, an ES verification key certificate is not necessary. The Law also prescribes that an ordinary ES is sufficient when citizens use the public services Internet portal.

That provision allows citizens to receive an ordinary ES at no extra cost. In order to obtain authorisation on the public services website, only the insurance policy number for the individual account (the Russian abbreviation SNILS) and the password that was received are needed. We can expect a good social effect if two processes are integrated, i.e., if a person can simultaneously obtain an ES along with the universal electronic card and scanner device that are required to use it at home.

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The cancellation of Law 1-FZ was scheduled for July 1, 2012; however, at that time, public authorities were not technically prepared to fully execute Law 63FZ, so the schedule was revised, and the enactment of the new law was deferred until July 1, 2013. Regulatory legal acts in the field of information law were being elaborated in an effort to enact them by that time; however, it became evident that their authors were confounding terms and were unable to determine the type of ES that participants in the electronic data exchange process should use in a particular SIS. Below you will find a list of the regulatory legal acts that prescribe some type of ES for participants in the electronic data exchange process. Here, we refer to the type of ES that can be used only by legal entities and their employees.

- The Federal Law dated 21.07.2005 No. 94-FZ «On the placement of goods delivery orders, work orders, orders concerning the rendering of services for state and municipal needs» (hereafter referred to as Law 94-FZ) – qualified ES. - The Federal Law dated 05.04.2013 No. 44-FZ «On the contractual system for purchasing goods, work, and services to satisfy state and municipal needs» (hereafter referred to as Law 44-FZ) – enforced non-expert ES. - The RF Government Regulation dated 09.02.2012 No. 111 «On the electronic signature to be used by executive authorities and local authorities in arrangements concerning electronic data exchange between them, on the procedures specifying how to use it, and on the establishment of the requirements aimed at assuring compatibility between the electronic signature instruments» – qualified ES. - The RF Government Regulation dated 08.11.2013 No. 1005 «On bank guarantees used in the context of the Federal Law «On contractual systems for the purchase of goods, work, and services to satisfy state and municipal needs» – non-expert ES. - The RF Government Regulation dated 12.10.2013 No. 913 «On the ratification of the Regulation that specifies the placing of the following kinds of information on the official website of the Russian Federation on its informationtelecommunications network Internet: the placement of goods delivery orders, work orders, orders concerning the rendering of services for state and municipal needs; the data that is subject to placement in the unified information system in the field of purchasing goods, work, and services to satisfy state and municipal needs before this system is set into operation» (hereafter referred to as Regulation 913) – the type of ES is not stipulated.

The «regulation mess» that we have just demonstrated has resulted in a legal collision concerning the usage of different types of ES. Let us compare the management of electronic documents to the management of so-called hard copies, i.e., paperless to paper records (incidentally, paralleling the two is a common practice). For hard copy versions of documents, the authorised signatory signs various kinds of paper records using his or her own manual signature, and the signatory usually uses the same hand (left or right) in all cases. Thus, in

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36 nature, different types of manual signatures simply do not exist. There is simply a manual signature, and in many cases, it must coincide with the signature that appears on the main document that serves as the citizen’s proof of identity. At the same time, in dealing with the signing of computer-based documents that concern purchases of goods, work, and services to satisfy state and municipal needs, we can observe a different situation, as described below.

Starting on January 1, 2014, Law 44-FZ came into effect, at which time, Law 94-FZ became inoperative. To sign the documents specified by Law 44-FZ, one must use the enforced non-expert ES that is issued by the certifying centers that have obtained an accreditation of compliance with the requirements of Law 63-FZ. At the same time, Section 5, Article 112 of Law 44-FZ specifies that, before the unified information system is set into operation, according to the procedure fixed by the Russian Federation Government, the information that is subject to placement in this system is to be posted on the official website, although this site is being run and serviced by rules that were in effect before Law 44-FZ came into force.

As noted above, Regulation 913 prescribes the placement of information on the private part of the official website, to which access is denied without the ES that is received after registration on the official website.

Simultaneously, certain alterations have been introduced in the Order that address users’ registration on the official website. That Order was ratified by the joint Decree of the Ministry of Economic Development and Trade of the Russian Federation and the Exchequer Chamber of Russia and is dated 10.08.2012 No. 508/14н. Some of the alterations concerned the norms that prescribe the issuance of ES verification key certificates to the representatives of organisations that are entitled to them.

All of the regulations listed above have left open the question of the particular ES that must be used on the official website before the unified information system is set into operation.

This problem could be avoided if the Ministry of Public Communications of Russia would offer to introduce alterations into Law 63-FZ in the section that addresses the use of enforced qualified ES by public authorities in those SIS that presently require the usage of an enforced non-expert ES. If the aforesaid alterations are introduced into Law 63-FZ, civil servants that represent public authorities will have the right to sign documents on behalf of their organisations using the same enforced qualified ES both in those SIS that currently call for the usage of the enforced qualified ES and in those SIS in which the enforced non-expert ES is currently required.

It turns out that the conception of «the unified space of credence of the ES» in practice, has manifested itself only in the unification of certifying centres, while officials that represent public authorities must have several types of ES (at the very least, two different ES). The number of types of ES in operation may even grow if the information system operator intentionally fixes the limitations that

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currently exist in the field of the use of ES verification key certificates.

The following conclusion suggests itself: To make the process of using electronic services simpler and quicker for citizens, the enactment of such provisions that would allow citizens to apply an ordinary ES is advisable.

Furthermore, the fact that it is currently possible to obtain authorisation on the public services website with the help of qualified ES verification key certificates will make this easier. At the same time, we suggest that the officials of public authorities should be treated as a separate segment and should be allowed to use qualified ES in all SIS. This will not even require SIS operators and developers to make adaptations to the application software because the form of the ES verification key qualified certificate is already stipulated in the regulatory framework, and accredited certifying centres publish all required information to ensure the verification of this type of ES on the Internet.

References 1. Bachilo I.L., Lopatin V.N., Fedotov M.A. Informatsionnoje pravo [Information Law] / under the editorship of B.N. Topornin. – Saint Petersburg: Publishing House of R. Aslanov «Juridicheskij tsentr Press», 2005.

2. Dolinskaja V.V. Informatsionnyje otnoshenija v grazhdanskom oborote // Zakony Rossii: opyt, analiz, praktika. – 2010. – № 4. [Information Relationship in Civil Turnover // Laws of Russia: experience, analysis, practice.]

3. Kirillovykh А.А. Pravovyje aspekty mekhanizma electronnogo vzaimodeistvija v zakonodatelstve ob elektonnoi podpisi // Advokat. – 2011. – № 11. [Legal Aspects of the Electronic Interaction Mechanism in Legislation about the Electronic Signature.]

4. Saul S.N. Problemy pravoprimenenija informatsionnogo prava v dejatelnosti Federalnogo kaznacheistva // Finansovoje pravo. – 2012. – № 11.

[Problems of the Enforcement of Information Law in the Activities of the Federal Exchequer Chamber // Publishing House «Financial Law».]

5. Semizorova E.V. Aktualnyje voprosy pravovogo regulirovanija obespechenija juridicheskoi znachimosti elektronnykh dokumentov // Rossijskaja justitsija. – 2011. – № 2. [Topical Questions of Legal Regulation in Ensuring Relevance in Law for Electronic Documents // Publishing House «Russian Justice».]

6. Federal Law dated 10.01.2002 No. 1-FZ «On electronic signatures».

7. Federal Law dated 27.07.2006 No. 149-FZ «On information, data processing technologies and information protection».

8. Federal Law dated 06.04.2011 No. 63-FZ «On electronic signatures».