5 March 1999
Source: http://www.access.gpo.gov/su_docs/aces/fr-cont.html

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[Federal Register: March 5, 1999 (Volume 64, Number 43)]
[Notices]
[Page 10895-10902]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05mr99-129]

[[Page 10895]]

_______________________________________________________________________

Part VI

Office of Management and Budget

_______________________________________________________________________

Management of Federal Information Resources; Notice

[[Page 10896]]

OFFICE OF MANAGEMENT AND BUDGET


Management of Federal Information Resources

AGENCY: Office of Management and Budget, Executive Office of the
President.

ACTION: Proposed Implementation of the Government Paperwork Elimination
Act.

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SUMMARY: The Office of Management and Budget (OMB) requests public and
agency comment on proposed procedures and guidance to implement the
Government Paperwork Elimination Act (GPEA). Under the GPEA, agencies
must generally provide for the optional use and acceptance of
electronic documents and signatures, and electronic record keeping
where practicable, by October 2003.

DATES: Persons who wish to comment on the GPEA procedures and guidance
should submit their comments no later than July 5, 1999. Each
Department and Agency is asked to submit a single coordinated set of
comments.

ADDRESSES: Electronic comments will be included as part of the official
record. Please send comments electronically to: gpea@omb.eop.gov.
Alternatively, hardcopy comments may be addressed to: Information
Policy and Technology Branch, Office of Information and Regulatory
Affairs, Office of Management and Budget, Room 10236 New Executive
Office Building, Washington, D.C. 20503.

ELECTRONIC AVAILABILITY: This document is available on the Internet in
the OMB library of the ``Welcome to the White House'' home page, http:/
/www.whitehouse.gov/WH/EOP/OMB/, the CIO Council's home page, http://
cio.gov, and at the Government Information Technology Services Board's
security home page at http://gits-sec.treas.gov.

FOR FURTHER INFORMATION CONTACT: Peter Weiss, Information Policy and
Technology Branch, (202) 395-3630. Press inquiries should be addressed
to the OMB Communications Office, (202) 395-7254.

SUPPLEMENTARY INFORMATION: Public confidence in the security of the
government's electronic information and information technology is
essential in creating government services that are more accessible,
efficient, and easy to use. Electronic commerce, electronic mail, and
electronic benefits transfer sensitive information within government,
between the government and private industry or individuals, and among
governments. These electronic systems must protect the information's
confidentiality, assure that the information is not altered in an
unauthorized way, and be available when needed. A corresponding policy
and management structure must support these protections.
    In a major step in this direction, the Congress recently enacted
legislation, supported by the Administration, intended to increase the
ability of citizens to interact with the Federal government
electronically. The Government Paperwork Elimination Act, Title XVII of
Pub. L. 105-277, provides for Federal agencies, by October 21, 2003, to
give persons who are required to maintain, submit, or disclose
information the option of doing so electronically when practicable as a
substitute for paper, and to use electronic authentication (electronic
signature) methods to verify the identity of the sender and the
integrity of electronic content. The Act specifically provides that
electronic records and their related electronic signatures are not to
be denied legal effect, validity, or enforceability merely because they
are in electronic form.
    OMB's proposed implementation of the Act is in two parts. The first
part sets forth the policies and procedures for implementing the Act,
and requesting certain specific agencies to provide assistance in
particular areas. The second part is intended to provide Federal
managers with practical implementation guidance.
    OMB requests comments on the proposed procedures and guidance.
Donald Arbuckle,
Deputy Administrator and Acting Administrator, Office of Information
and Regulatory Affairs.

Proposed OMB Procedures and Guidance on Implementing the Government
Paperwork Elimination Act

    This provides Executive agencies with the guidance needed to
implement the Government Paperwork Elimination Act (GPEA), Pub. L. 105-
277, Title XVII, which took effect on October 21, 1998. The GPEA is an
important tool to fulfill the Administration's vision of improved
customer service and governmental efficiency through the use of
information technology. This vision, articulated in Vice President
Gore's 1997 report, Access America (http://gits.gov), involves
widespread use of the Internet, with Federal agencies transacting
business electronically, in the same way as commercial enterprises.
Those who wished to do business in this way could avoid traveling to
government offices, waiting in line, or mailing paper forms. Delivery
of government services in this way would normally save the government
time and money as well.
    Access America recognized, however, that:
    Public confidence in the security of the government's electronic
information and information technology is essential to creating
government services that are more accessible, efficient, and easy to
use. Electronic commerce, electronic mail, and electronic benefits
transfer sensitive information within government, between governments
and private industry or individuals, and among governments. These
electronic systems must protect the information's confidentiality,
assure that the information is not altered in an unauthorized way, and
be available when needed.

Part I. Policy and Procedures

Section 1. Policy

    The GPEA charges the Office of Management and Budget, in
consultation with the Commerce Department and other appropriate
entities, with the development of procedures for Executive agencies to
follow in using and accepting electronic documents and signatures.
These procedures reflect and are to be executed with due consideration
of the following policies:
    a. Maintaining compatibility with standards and technology for
electronic signatures generally used in commerce and industry and by
State governments;
    b. not inappropriately favoring one industry or technology;
    c. ensuring that electronic signatures are as reliable as is
appropriate for the purpose in question and that electronic record
keeping systems reliably preserve the information submitted;
    d. providing wherever appropriate for the electronic acknowledgment
of electronic filings that are successfully submitted; and
    e. providing, to the extent feasible and appropriate, for multiple
methods of electronic signatures or identifiers for the submission of
such forms where the agency anticipates receipt of 50,000 or more
electronic submittals of a particular form.

Section 2. Procedures

    a. The GPEA recognizes that adoption of electronic systems should
be consistent with the need to ensure that investments in information
technology are economically prudent to accomplish the agency's mission
and give due regard to privacy and security.

[[Page 10897]]

Moreover, it is Administration policy that a decision to not allow the
option of electronic filing and record keeping should be supported by a
specific showing that, in the context of a particular application,
there is no reasonably cost-effective combination of technologies and
management controls that can minimize the risk of significant harm.
Accordingly, agencies should develop and implement plans to use and
accept documents in electronic form, and engage in electronic
transactions.
    b. An agency's determination of which technology is appropriate for
a given transaction must include a risk assessment, and an evaluation
of targeted customer or user needs. Performing a risk assessment to
evaluate electronic signature alternatives should not be viewed as an
isolated activity or an end in itself. These agency risk assessments
should draw from and feed into the interrelated requirements of the
Paperwork Reduction Act, the Computer Security Act, the Government
Performance and Results Act, the Clinger-Cohen Act, the Federal
Managers Financial Integrity Act, and the Chief Financial Officers Act.
    c. The initial use of the risk assessment is to identify and
mitigate risks in the context of available technologies and their
relative total costs and effects on the program being analyzed. The
assessment also should be used to develop baselines and verifiable
performance measures that track the agency's mission, strategic plans,
and tactical goals.
    d. The analysis of costs and benefits should be designed so that it
can be used, not only as a guide to selecting among the technologies
under consideration, but also to generate a business case and
verifiable return on investment to support decisions regarding overall
programmatic direction, investment decisions, and budgetary priorities.
The effects on the public and its needs and readiness to move to an
electronic environment are important considerations.

Section 3. Agency Responsibilities

    a. In order to ensure a smooth and cost-effective transition to a
more electronic government providing improved service to the public,
each agency shall:
    1. Include in its strategic IT plans supporting program
responsibilities (required under OMB Circular A-11) a summary of the
agency's schedule to implement optional electronic maintenance,
submission, or disclosure of information when practicable as a
substitute for paper, including through the use of electronic
signatures when practicable, by the end of Fiscal Year 2003 (note:
agencies need not revise their reports on Federal purchasing and
payment already required by OMB M-99-02, but should include the
automation of purchasing and payment functions in their schedule);
    2. consider whether an appropriate combination of information
security practices, authentication technologies and management controls
for each application will be practicable, and if so, which combination
will minimize risk and maximize benefits in a cost effective manner;
    3. promulgate or amend regulations or policies as necessary and
appropriate to: (1) Implement optional electronic submission,
maintenance, or disclosure of information, and the use of any necessary
electronic signature alternatives; and (2) permit private employers who
have record keeping responsibilities imposed by the Federal government
to electronically store and file information pertaining to their
employees electronically;
    4. maintain appropriate information system confidentiality and
security in accordance with the guidance contained OMB Circular A-130,
Appendices I and III, and use, to the maximum extent practicable,
technologies either prescribed in Federal Information Processing
Standards promulgated by the Secretary of Commerce or supported by
voluntary consensus standards as defined in OMB Circular A-119;
    5. provide, to the extent feasible and appropriate, more than one
electronic signature option for public reporting forms which are
collected annually in electronic form from more than 50,000
respondents; and
    6. report progress against the strategic plans developed in
response to 1. above through the annual agency reports submitted to OMB
under the Paperwork Reduction Act, including any determination that a
particular application is inappropriate for conversion to electronic
filing.
    (b) Department of Commerce.
    The Department of Commerce shall promulgate Federal Information
Processing Standards as appropriate to further the specific goals of
the GPEA. The Department should also develop best practices in the area
of authentication technologies and implementations, including
cryptographic digital signature technology, with assistance from the
Government Information Technology Services Board, the Chief Information
Officers Council and the President's Management Council.
    (c) Department of the Treasury.
    The Department of the Treasury shall prescribe policies and
practices for the use of electronic authentication techniques in
Federal payments and collections, and ensure that they fulfill the the
goals of GPEA.
    (d) Department of Justice.
    The Department of Justice shall develop and publish practical
guidance on legal considerations related to agency use of electronic
filing and record keeping.
    (e) General Services Administration.
    The General Services Administration shall support agencies'
implementation of electronic signatures and related electronic service
delivery.

Part II. Paperwork Elimination Through the Use of Electronic
Signatures and Electronic Record Keeping

    This part provides Federal managers with basic information to
assist in planning for an orderly and efficient transition to
electronic government. Agencies should begin their planning promptly to
ensure compliance with the timetable in the GPEA.

Section 1. Introduction and Background

    a. As required by the Government Paperwork Elimination Act (GPEA),
this Part provides guidance for agencies to use in deciding whether to
use electronic signature technology for an application, which
electronic signature technology may be most appropriate, and how to
minimize the risk of fraud, error, or misuse when implementing an
electronic signature technology to authenticate electronic
transactions. These procedures are consistent with the requirement of
the Paperwork Reduction Act of 1995 (PRA) that agencies shall
``consistent with the Computer Security Act of 1987 (CSA)(40 U.S.C. 759
note), identify and afford security protections commensurate with the
risk and magnitude of the harm resulting from the loss, misuse, or
unauthorized access to or modification of information collected or
maintained by or on behalf of an agency.'' 44 U.S.C. 3506(g)(3).
    b. As the GPEA, PRA, and CSA recognize, the goal of information
security is to protect the integrity of electronic records and
transactions. Different security approaches offer varying levels of
assurance in an electronic environment. Among these approaches (in an
ascending level of assurance) are (1) the so-called ``shared secrets''
methods, e.g., personal identification numbers or passwords, (2)
digitized signatures or biometric means of identification such as
fingerprints or retinal patterns and voice recognition,

[[Page 10898]]

and (3) digital signatures. Combinations of approaches (e.g., digital
signatures with biometrics) are also possible and may provide even
higher levels of assurance. Deciding which to use in an application
depends upon the risks associated with the loss, misuse or compromise
of the information compared to the cost and effort associated with
deploying and managing the increasingly secure methods to mitigate
those risks. Agencies must strike a balance, recognizing that achieving
absolute security is likely to be in most cases highly improbable and
prohibitively expensive.

Section 2. What Is an ``Electronic Signature?''

    a. The GPEA defines ``electronic signature'' as follows:

    A method of signing an electronic message that--
    (A) Identifies and authenticates a particular person as the
source of the electronic message; and
    (B) Indicates such person's approval of the information
contained in the electronic message. (GPEA, section 1709(1)).

    This definition should be interpreted by reference to accepted
legal definitions of signatures. The term ``signature'' has long been
understood as including ``any symbol executed or adopted by a party
with present intention to authenticate a writing.'' (Uniform Commercial
Code, 1-201(39)(1970)). These flexible definitions permit the use of
different electronic signature technologies, such as digital
signatures, digitized signatures or biometrics, discussed below. For
this reason, while it is the case that, for historical reasons, the
Federal Rules of Evidence are tailored to the admissibility of paper-
based evidence, the Rules of Evidence have no bias against electronic
evidence.
    b. In enacting the GPEA, Congress addressed the legal effect and
validity of electronic signatures or other electronic authentication:

    Electronic records submitted or maintained in accordance with
procedures developed under this title, or electronic signatures or
other forms of electronic authentication used in accordance with
such procedures, shall not be denied legal effect, validity, or
enforceability because such records are in electronic form. (GPEA,
section 1707).

Section 3. Risk Factors To Consider In Planning and Implementing an
Electronic Signature or Record Keeping System

    Electronic signature technologies can offer degrees of confidence
in authenticating identity greater even than the presence of a
handwritten signature. These digital tools should be used to control
risks in a cost-effective manner. In determining whether an electronic
signature is sufficiently reliable for a particular purpose, agencies
should consider the relationships between the parties, the value of the
transaction, and the likely need for accessible, persuasive information
regarding the transaction at some later date. Once these factors are
considered separately, an agency should consider them together to
evaluate its sensitivity to risk for a particular process.
    a. The relationship between the parties. Agency transactions fall
into five general categories, each of which may be vulnerable to
different security risks:
    (1) Intra-agency transactions (i.e., those which remain within the
same Federal agency).
    (2) Inter-agency transactions (i.e., those between Federal
agencies).
    (3) Transactions between a Federal agency and state or local
government agencies.
    (4) Transactions between a Federal agency and a private
organization--contractor, university, non-profit organization, or other
entity.
    (5) Transactions between a Federal agency and a member of the
general public.
    Inter- or intra-governmental transactions of a relatively routine
nature will generally entail little risk of a trading partner later
repudiating the transaction, and almost no risk of the trading partner
committing fraud. Similarly, transactions between a regulatory agency
and a publicly traded corporation or other known entity regulated by
that agency bear a relatively low risk of repudiation or fraud. Risk
also tends to be relatively low in cases where there is an ongoing
relationship between the parties. On the other hand, a one-time
transaction between a person and an agency, which has legal or
financial implications, bears the highest risk. In all cases, the
relative value of the transaction needs to be considered.
    b. The value of the transaction. Agency transactions fall into five
general categories, each of which may be vulnerable to different
security risks:
    (1) Transactions involving the transfer of funds.
    (2) Transactions where the parties commit to actions or contracts
that may give rise to financial or legal liability.
    (3) Transactions involving information protected under the Privacy
Act or other agency-specific statutes obliging that access to the
information be restricted.
    (4) Transactions where the party is fulfilling a legal
responsibility which, if not performed, creates a legal liability
(criminal or civil).
    (5) Transactions where no funds are transferred, no financial or
legal liability is involved and no privacy or confidentiality issues
are involved (electronic signatures are least necessary in these
transactions and should not be used unless specifically required by law
or regulation).
    c. The likely need for accessible, persuasive information regarding
the transaction at a later point. Agency transactions fall into five
general categories:
    (1) Transactions where the information generated will never be
needed again.
    (2) Transactions where the information generated may later be
subject to audit.
    (3) Transactions where the information generated may later be
subject to dispute by one of the parties (or alleged parties) to the
transaction.
    (4) Transactions where the information generated may later be
subject to dispute by a non-party to the transaction.
    (5) Transactions where the information generated may later be
needed as proof in court.
    d. Synthesizing the Risk Factors.
    (1) To evaluate the suitability of electronic signature
alternatives for a particular application, the agency needs to perform
a qualitative risk analysis and should then determine the particular
technologies and management controls best suited to minimizing the risk
to an acceptable level while maximizing the benefits to the parties
involved.
    (2) Risk analyses must recognize that no signature alternative is
totally reliable and secure. Every method of signature, whether
electronic or paper, can be compromised to some degree with enough
technology or due to poor security procedures or practices. In
estimating the cost of any system, agencies should include costs
associated with hardware, software, administration and support of the
system, both short-term and long-term. If it would be extremely
expensive to set up a very secure system, but past experience with
fraud risks and a careful analysis of those risks shows that exposure
is low, a less expensive system that deters the majority of fraud is
probably warranted. However, in making this tradeoff, agencies should:
(a) Evaluate whether the security elements of a less expensive system
can be disproportionately exploited resulting in greater exposure to
fraud than would be expected in

[[Page 10899]]

comparable non-automated systems; and (b) consider management and other
non-technical process controls which could reduce those risks.
    (3) A qualitative risk analysis also should recognize that all
risks and benefits are not quantifiable. While some transactions can be
assigned a definite monetary value that may be placed at risk, many
cannot. For example, the value of deterring fraud cannot generally be
quantified. Should an agency conclude that a new automated system is
less secure than an old, paper-based system, attempts to commit fraud
or to repudiate transactions may increase. On the benefit side, it is
not always possible to assign a dollar value to the increased
efficiency that an agency experiences when it automates a labor-
intensive process, although agencies should attempt to make this
estimation whenever feasible. Usually, it is not possible to quantify
in monetary terms attitudes such as increased customer satisfaction and
willingness to cooperate with an agency, which are engendered by the
transition from onerous paper processes to user-friendly electronic
processes.
    (4) One advantage of electronic authentication is that an agency
may strengthen the signature validation by incorporating electronic
links between the user and preexisting data about that user in the
agency's records. The IRS has successfully adopted this approach in its
TeleFile program, which enables selected taxpayers to file 1040EZs with
a touch-tone phone. Taxpayers get Customer Service Numbers (CSNs, i.e.,
PINs) that they then use to sign their returns and which help to
validate their identities to the agency. Even though a CSN is not
unique to an individual taxpayer (since it is only five digits long),
the IRS authenticates the filer by using other identifying factors,
such as the taxpayer's date of birth, taxpayer identification number,
and by using additional procedures. This approach is not used over the
Internet. Rather, it occurs in short-term connections over telephone
lines, an environment where it is comparatively difficult for
malefactors to eavesdrop and to steal information or to substitute
false information for fraudulent purposes.
    (5) The Computer Security Act places on agency managers the
responsibility to select an appropriate combination of technologies and
practices to minimize risk cost-effectively while maximizing benefits
to the agency and to its customers. These decisions, however
qualitative, should be documented for later review and adjustment.

Section 4. Privacy and Disclosure

    Section 1708 of the GPEA limits the use of information collected in
electronic signature services for communications with a Federal agency.
It directs agencies and their staff and contractor personnel not to
such use information for any purpose other than for facilitating the
communication. Exceptions exist if the person (or entity) who is the
subject of the information provides affirmative consent to the
additional use of the information, or if such additional use is
otherwise provided by law. Accordingly, agencies should follow several
privacy tenets:
    a. Electronic authentication should only be required where needed.
Many transactions do not need, and should not require, detailed
information about the individual.
    b. When electronic authentication is required for a transaction, do
not collect more information from the user than is required for the
application.
    c. Users should be able to decide the scope of their electronic
means of authentication. In other words, if a user wants a certain
mechanism for authentication to work only with a single agency or for a
single type of transaction, the user's desires should be honored if
practicable. Conversely, if the user wishes to have the authentication
work with multiple agencies or for multiple types of transactions, that
should also be permitted consistent with how the agency employs such
means of authentication and with relevant statute and regulation.
    d. Agencies should ensure, and users should be informed, that
information collected for the purpose of issuing or using electronic
means of authentication will be managed and protected in accordance
with applicable requirements under the Privacy Act, the Computer
Security Act, and any agency-specific statutes mandating the protection
of such information.

Section 5. Overview of Current Electronic Signature Technologies

    This section addresses two categories of security: (1) Non-
cryptographic methods of authenticating identity; and (2) cryptographic
control methods. The non-cryptographic approach relies solely on an
identification and authentication mechanism linked to a specific
software application. Cryptographic controls can be used for multiple
applications, if properly managed, and encompass authentication and
encryption services. A highly secure implementation may combine both
categories of technologies. The spectrum of electronic signature
technologies currently available is described below.
    a. Non-Cryptographic Methods of Authenticating Identity
    (1) Personal Identification Number (PIN) or password: A user
accessing an agency's electronic application is requested to enter a
``shared secret'' (called ``shared'' because it is known both to the
user and to the system), such as a password or PIN. When the user of a
system enters her name, she also enters a password or PIN. The system
checks that password or PIN as a shared secret to ``authenticate'' the
user. If the authentication process is performed over an open network
such as the Internet, it is usually essential that at least the shared
secret be encrypted; this can be accomplished through the technology
called ``Secure Sockets Layer'' currently built into almost all popular
Web browsers, in a fashion that is transparent to the end user.
    (2) Smart Card: A smart card is a plastic card the size of a credit
card which contains an embedded chip that can generate, store, and/or
process data. It can be used to facilitate various authentication
technologies. A user inserts the smart card into a card reader device
attached to a microcomputer or network input device. In the computer,
information from the card's chip is read by security software only when
the user enters a PIN, password, or biometric identifier. This method
provides greater security than use of a PIN alone, because a user must
have both (a) physical possession of the smart card and (b) knowledge
of the PIN. Good security requires that the smart card and the PIN
never be kept together. Note that the PIN, password or biometric
identifier in this case is a secret shared between the user and the
smart card, not between the user and a local or remote computer.
    (3) Digitized Signature: A digitized signature is a graphical image
of a handwritten signature. Some applications require a user to create
his or her hand-written signature using a special computer input
device, such as a digital pen and pad. The digitized representation of
the entered signature is compared with a stored copy of the graphical
image of the handwritten signature. If special software considers both
images comparable, the signature is considered valid. This application
of technology shares the same security issues as those using the PIN or
password approach, because the digitized signature is another form of
shared secret known both to the user and to the system. The digitized
signature is more reliable for

[[Page 10900]]

authentication than a password or PIN because there is a biometric
component to the creation of the image of the handwritten signature.
Forging a digitized signature can be more difficult than forging a
paper signature to the extent that the technology digitally compares
the submitted signature image with the known signature image, and is
better than the human eye. Another element in a digitized signature
which helps make it unique is measuring how each stroke is made--its
duration or pen pressure, for example. This information can also be
compared to a reference value. As with all shared secret techniques,
compromise of a digitized signature image file could pose a security
risk to users.
    (4) Biometrics: Individuals have unique physical characteristics
that can be converted into digital form and then interpreted by a
computer. Among these are voice patterns (where an individual's spoken
words are converted into a special electronic representation),
fingerprints, and the blood vessel patterns present on the retina (or
rear) of one or both eyes. In this technology, the physical
characteristic is measured (by a microphone, optical reader, or some
other device), converted into digital form, and then compared with a
copy of that characteristic stored in the computer and authenticated
beforehand as belonging to a particular person. If the test pattern and
the previously stored patterns are sufficiently close (to a degree
which is usually selectable by the authenticating application), the
authentication will be accepted by the software, and the transaction
allowed to proceed. Biometric applications can provide very high levels
of authentication especially when the identifier is obtained in the
presence of a third party (making spoofing difficult), but as with any
shared secret, if the digital form is compromised, impersonation
becomes a serious risk. Thus, just like PINs, such information should
not be sent over open networks unless it is encrypted. Moreover,
measurement and recording of a physical characteristic can raise
privacy concerns.
b. Cryptographic Control
    Creating electronic signatures may involve the use of cryptography
in two ways: symmetric (or shared private key) cryptography, or
asymmetric (public key/private key) cryptography. The latter is used in
producing digital signatures, discussed further below.
    (1) Shared Private Key Cryptography. In shared private key
(symmetric) approaches, the user signs a document and verifies the
signature using a single key (consisting of a long string of zeros and
ones) that is not publicly known, or is secret. Since the same key does
these two functions, it must be transferred from the signer to the
recipient of the message. This situation can undermine confidence in
the authentication of the user's identity because the private key is
shared between sender and recipient and therefore is no longer unique
to one person. Since the private key is shared between the sender and
possibly many recipients, it is really not ``private'' to the sender
and hence has lesser value as an authentication mechanism. This
approach offers no additional cryptographic strength over digital
signatures (see below). Further, digital signatures avoid the need for
the shared secret.
    (2) Public/Private Key (Asymmetric) Cryptography--Digital
Signatures. (a) To produce a digital signature, a user has his or her
computer generate two mathematically linked keys--a private signing key
that is kept private, and a public validation key that is available to
the public. The private key cannot be deduced from the public key. In
practice, the public key is made part of a ``digital certificate,''
which is a specialized electronic document digitally signed by the
issuer of the certificate, binding the identity of the individual to
his or her private key in an unalterable fashion.
    (b) A ``digital signature'' is created when the owner of a private
signing key uses that key to create a unique mark (called a ``signed
hash'') on an electronic document or file. The recipient employs the
owner's public key to validate the authenticity of the attached private
key. This process also verifies that the document was not altered.
Since the two keys are mathematically linked, they are unique: only one
public key will validate signatures made using its corresponding
private key. Moreover, if the private key has been properly protected
from compromise or loss, the signature is unique to the individual who
owns it, that is, the owner is bound by the signature. One concern in
relatively high-risk transactions is that the private key owner could
feign loss to repudiate a transaction. This concern can be mitigated by
encoding the private key onto a smart card or an equivalent device, and
by using a biometric mechanism (rather than a PIN or password) as the
shared secret between the user and the smart card for unlocking the
private key to effect a signature. It can also be addressed by agencies
establishing clear procedures for a particular implementation, so that
all parties know what the obligations, risks and consequences are.
    The reliability of the digital signature is directly proportional
to the degree of confidence one has in the link between the owner's
identity and the digital certificate, how well the owner has protected
the private key from compromise or loss, and to the cryptographic
strength of the methodology used to generate the key pair. Further
information on digital signatures can be found in Access with Trust
(http://gits-sec.treas.gov), a report published by OMB and NPR.
c. Technical Considerations of the Various Technologies
    (1) While generally the most certain method for assuring identity
electronically, use of digital signatures requires agencies to develop
a series of policies and documents which provide the important
underlying framework of trust and which facilitate the evaluation of
risk. The framework identifies how well the signer's identity is bound
to his or her public key in a digital certificate (identity proofing);
whether the private key is placed on a highly secure hardware token or
is encapsulated in software only; and how difficult it is for a
malefactor to deduce using cryptographic methods the private key (the
cryptographic strength of the key-generating algorithm).
    (2) By themselves, digitized (not digital) signatures, PINs and
biometric identifiers do not directly bind identity to the contents of
a document. For them to do so, they must be used in conjunction with
some other mechanism. Biometric identifiers such as retinal patterns
used in conjunction with digital signatures can offer far greater proof
of identify than pen and ink signatures.
    (3) While not as robust as biometric identifiers and digital
signatures, PINs have the decided advantage of proven customer and
citizen acceptance, as evidenced by the universal use of PINs for
automated teller machine transactions. Such transactions, however,
typically occur over proprietary networks rather than open networks
like the Internet, where eavesdropping on transactions is much easier,
unless the messages are encrypted.
    (4) It is important to remember that technical factors are but one
aspect to be considered when an agency plans to implement electronic
signature-based applications. Other important aspects are considered in
the following sections.

[[Page 10901]]

Section 6. Agency Implementation of Electronic Signature and
Authentication

    After the agency has conducted the risk analysis and identified an
appropriate electronic signature or other electronic authentication,
the agency will then proceed to implement this decision. In doing so,
agencies should consider the following:
    a. Develop a regulatory or policy scheme. Agencies should consider
whether their programmatic regulations or policies support the use and
enforceability of electronic signature alternatives to handwritten
signatures. By clearly informing the regulated community that
electronic signatures and records will be acceptable and used for
enforcement purposes, their legal standing is enhanced. Several
agencies have already promulgated policies and regulations making this
clear, and a number are developing them:
    Securities and Exchange Commission (17 CFR Part 232), electronic
regulatory filings; Environmental Protection Agency (55 FR 31,030
(1990)), policy on electronic reporting;
    Food and Drug Administration (21 CFR Part 11), electronic
signatures and records; Internal Revenue Service (Treasury Reg.
301.6061-1), signature alternatives for tax filings;
    Federal Acquisition Regulation (41 CFR Parts 2 and 4), electronic
contracts; General Services Acquisition Regulation (48 CFR Part
552.216-73), electronic orders; Federal Property Management Regulations
(41 CFR Part 101-41), electronic bills of lading.
    When specifying the requirements for using electronic record
keeping by regulated entities (particularly the maintenance of
electronic forms pertaining to employees by employers), agencies should
consider the ``Performance Guideline for the Legal Acceptance of
Records Produced by Information Technology Systems,'' developed by the
Association for Information and Image Management (ANSI AIIM TR31). This
document provides suggestions for maximizing the likelihood that
electronically filed and stored documents will be accorded full legal
recognition. If an agency chooses to use digital signatures, a
regulation may specify that each individual will be issued a unique
digital signature certificate to use, agree to keep the private key
confidential, and agree to accept responsibility for anything that is
submitted using that key, or other conditions under which the agency
will accept electronic submissions using it.
    b. Use a mutually-understood, signed agreement between the person
or entity submitting the electronically-signed information and the
receiving Federal agency.
    (1) As a matter of efficiency, contractual arrangements with large
numbers of trading partners would be best accomplished by setting forth
an agency's terms and conditions in a regulation. Arrangements with
smaller numbers of trading partners may lend themselves to one or more
agreements, using a document referred to as a ``terms and conditions''
agreement. These agreements can ensure that all conditions of
submission and receipt of data electronically are known and understood
by the submitting parties. This is particularly the case where terms
and conditions are not spelled out in agency programmatic regulations.
    (2) It is also important to establish that the user of the digital
signature or PIN/password is fully aware of what he or she is signing
at the time of signature. This can be ensured by programming
appropriate ceremonial banners that alert the individual of the gravity
of the action into the software application. The presence of such
banners can later be used to demonstrate to a court that the user was
fully informed of and aware of what he or she was signing.
    c. Minimize the likelihood of repudiation. Agencies should develop
well-documented and established mechanisms and procedures to tie
transaction in a legally binding way to an individual. The integrity of
even the most secure digital signature rests on the continuing
confidentiality of the private key, for example. Similarly, in the case
of electronic signatures based on the use of PINs, the integrity of the
transaction depends on the user not disclosing the PIN. If a defendant
is later charged with a crime based on an electronically signed
document, he or she would have every incentive to show a lack of
control over (or loss of) the private key or PIN. Indeed, if that
defendant plans to commit fraud, he or she may intentionally compromise
the secrecy of the key or PIN, so that the government would later be
unable to link him or her to the electronic transaction.
    Thus, transactions which appear to be at high risk for fraud, e.g.,
one-time high-value transactions with persons not previously known to
an agency, may require extra safeguards or may not be appropriate for
electronic transactions. One way to mitigate this risk is to require
that private keys be encoded on hardware tokens, making possession of
the token a critical requirement. Another way to guard against fraud is
to include other identifying data in the transaction that links the key
or PIN to the individual, preferably something not readily available to
others.
    d. Access to the electronic data, after receipt, needs to be
carefully controlled yet available in a meaningful and timely fashion.
Security measures should be in place that ensure that no one is able to
alter a transaction, or substitute something in its place, once it has
been received by the agency. Thus, the receiving agency needs to take
prudent steps to control access to the electronic transaction through
such methods as limiting access to the computer database containing the
transaction, and performing processing with the data using copies of
the transaction rather than the original. Moreover, the information may
be needed for audits, disputes, or court cases many years after the
transaction itself took place. Agencies should make plans for storing
data, and providing meaningful and timely access to it for as long as
such access will be necessary.
    e. Ensure the ``Chain of Custody.'' Electronic audit trails must
provide a chain of custody for the secure electronic transaction that
identifies sending location, sending entity, date and time stamp of
receipt, and other measures used to ensure the integrity of the
document. These trails must be sufficiently complete and reliable to
validate the integrity of the transaction and to prove that, (a) the
connection between the submitter and the receiving agency has not been
tampered with, and (b) how the document was controlled upon receipt.
    f. Provide an acknowledgment of receipt. The agency's system for
receiving electronic transactions may be required by statute to have a
mechanism for acknowledging receipt of transactions received, and
acknowledging confirmation of transactions sent, with specific
indication of the party with whom the agency is dealing.
    g. Obtain legal counsel during the design of the system. Collection
and use of electronic data may raise legal issues, particularly if it
is information that bears on the legality of the process or that may
eventually be needed for proof in court.
Section 7. Summary of the Procedures and Checklist
    To summarize the process which agencies should employ to evaluate
authentication mechanisms (electronic signatures) for electronic
transactions and documents, the following steps apply:
    1. Examine the current business process that is being converted to
employ electronic documents or

[[Page 10902]]

transactions, identifying the existing risks associated with fraud,
error or misuse, as well as customer needs and demands.
    2. Consider what risks may arise from the use of electronic
transactions or documents. This evaluation should take into account the
relationships of the parties, the value of the transactions or
documents, and the later need for the documents.
    3. Identify the benefits that accrue from the use of electronic
transactions or documents.
    4. Consult with counsel about any specific legal implications about
the use of electronic transactions or documents in the particular
application.
    5. Evaluate how each electronic signature alternative may minimize
risk compared to the costs incurred in adopting an alternative.
    6. Determine whether any electronic signature alternative in
conjunction with appropriate process controls represents a practicable
trade-off between cost and risk on the one hand, and benefits on the
other. If so, determine, to the extent possible at the time, which
signature alternative is the best one. Document this determination to
allow later evaluation and audit.
    7. Develop plans for retaining and disposing of information,
ensuring that it can be made continuously available to those who will
need it, for managerial control of sensitive data and accommodating
changes in staffing, and for ensuring adherence to these plans.
    8. Determine if regulations or policies are adequate to support
electronic transactions and record keeping, or if ``terms and
conditions'' agreements are appropriate for the particular application.
    9. Develop plans for seeking the continuing input of technology
experts for updates on the changing state of technology and the
continuing advice of legal counsel for updates on the changing state of
the law in these areas.
    10. Integrate these plans into the agency's strategic IT planning
and regular reporting to OMB.
    11. Perform periodic review and re-evaluation, as appropriate.

[FR Doc. 99-5409 Filed 3-4-99; 8:45 am]
BILLING CODE 3110-01-U
