Notes - Burdens of Proof - page 212

record his consent] under paragraph one is appropriate, legal, technical and com-
mercial factors that may be taken into account include the following: (1) the sophis-
tication of the equipment used by each of the parties; (2) the nature of their trade
activity; (3) the frequency at which commercial transactions take place between the
parties; (4) the kind and size of the transaction; (5) the function of signature require-
ments in a given statutory and regulatory environment; (6) the capability of com-
munication systems; (7) compliance with authentication procedures set forth by
intermediaries; (8) the range of authentication procedures made available by any
intermediary; (9) compliance with trade customs and practice; (10) the existence of
insurance coverage mechanisms against unauthorized messages; (11) the impor-
tance and the value of the information contained in the data message; (12) the
availability of alternative methods of identification and the cost of implementation;
(13) the degree of acceptance or non-acceptance of the method of identification in
the relevant industry or field both at the time the method was agreed upon and the
time when the data message was communicated; and (14) any other relevant factor.”
32. American Bar Association, “Digital Signature Guidelines: Legal Infrastructure for
Certification Authorities and Secure Electronic Commerce” (Chicago: American Bar
Association, August 1, 1996), 3.
33. Ibid., 105-106.
34. Ibid., 113; emphasis added.
35. C. Bradford Biddle, “Misplaced Priorities: The Utah Digital Signature Act and
Liability Allocation in a Public Key Infrastructure,” San Diego Law Review 33 (1996):
1144. See also C. Bradford Biddle, “Legislating Market Winners: Digital Signature
Laws and the Electronic Commerce Marketplace,” San Diego Law Review 34, no. 3
(1997): 1225-1246; and Winn, “The Emperor's New Clothes.”
36. The bill was repealed in 2006 for lack of use—see Wendy Leibowitz, “Utah Will
Repeal Its Digital Signature Law, Never Used, As Tech, National Law Diverged,”
Electronic Commerce and Law Report 10, no. 48 (December 21, 2005).
37. On the GSM directive, see Jacques Pelkmans, “The GSM Standard: Explaining a
Success Story,” Journal of European Public Policy 8, no. 3 (2001): 432-453.
38. Martin Bangemann et al., “Europe and the Global Information Society: Recom-
mendations of the High-Level Group on the Information Society to the Corfu
European Council (Bangemann group),” Bulletin of the European Union , Supplement
No. 2/94 (1994): 17.
39. Treaty of Rome, article 249.
40. European Commission, Proposal for a European Parliament and Council Directive on
a Common Framework for Electronic Signatures , COM(98) 297 final (May 13, 1998): 3.
41. European Commission, Ensuring Security and Trust in Electronic Communications—
Toward a European Framework for Digital Signatures and Encryption , communication