Cryptography Reference
In-Depth Information
of French evidence law to information technologies had lost much of its
symbolic charge. The pressure to publish the second application decree
had eased off, and even the notarial profession—which had led the charge
into this uncertain territory— seemed ready for a pause. Thus, as a baseline
principle, the report could suggest that each profession (notaries, officers
of civil status, court clerks, etc.) be left to organize the computerization of
authentic acts at the pace best appropriate to its needs and resources.
The report avoided any metaphysical confrontation over the meaning
of physical presence, simply stating that “whatever the new possibilities
which the electronic media offers with regard to witnessing consent at a
distance, to modify the actual principle of the physical presence of the
public officer would imply a questioning of the principle of authenticity
which the legislator has not sought.”
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If the French state wanted to make
the physical presence of the notary optional, it would have to get rid of
authenticity as currently defined. With regard to the signature of the public
officer, it remained resolutely neutral, requiring only that it be affixed by
a physically present public officer. In particular, it did not specifically
endorse the “secure electronic signatures” framework of the first applica-
tion decree, underlining that the issues raised relative to their long-term
preservation raised substantive challenges.
The suggestion displeased the Ministry of Justice, which noted with
some impatience that “the report manifests a certain hesitation with regard
to the asymmetric signature mechanism. . . . In the case that such a
method, even with additional requirements, cannot be used for authentic
acts, it would be interesting that the report suggest which other technolo-
gies it intends to propose.” The Ministry promptly convened a second
working group with the hope of conjuring more immediate solutions. It
would nevertheless take another three years before an application decree
could be published in August 2005, finally setting the rules for the signa-
ture, preservation, and distributed creation of electronic notarial acts.
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To date, no general decree applicable to all the professions has been
published.
The 2005 decree takes a decisive stance with respect to the conditions
for electronic notarized contracts. First, notaries will henceforth be required
to use cryptographic signatures, as defined in the 2001 application decree
and implemented in the profession's public-key infrastructure. However,
parties and witnesses to the act must be able to affix their signature
