President Chávez's signature
The use of an electronic signature provided by President Hugo Chávez is not to be taken lightly: there exists a legal framework which regulates such thing and the infringement of the rules results in penalties
Maduro had the chance to clarify a doubt; however, in that interview –released in press Correo del Orinoco last January 17- he opted to fire artillery bullets at the movement called by him as "the rightwing." Additionally, he was asked if President Chávez had made use of his electronic signature, and his answer was the following: "Well, I think that there are no sound reasons whatsoever to start a debate of this nature. President Chávez has given an order and has signed a decree, and the decree has been enacted exactly as hundreds of decrees are during a regular year. On the whole, they have attempted to introduce a subject in a debate that has no transcendence in the political life of Venezuela. In brief: it does not bring anything positive to the table. President Hugo Chávez, as the ruler of Venezuela, ordered that Elías Jaua was appointed; he signed the memorandum account; he signed the decree and the decree was then published; as simple as that; business as usual."
The matter; however, is not that simple. Maduro announced Jaua's appointment on January 15, 2013 and next day the Decree 9,351 was released in the Official Gazette number 40,090. By then, Chávez had been more than a month outside Venezuela, after traveling to Havana on December 10, 2012. Absent and without allowing himself to be seen: neither in videos, nor in photographs or through phone calls. The information disclosed by official spokesmen talked of the President's serious medical condition and the rumors depicted a much worse situation.
Back in November, Chávez had been to Cuba in order to get medical treatment. On November 29, from Havana, he made use of his electronic signature to appoint Minister Héctor Navarro as Vice President in charge of the presidency for a couple of days, while Maduro attended diplomatic affairs in Peru. There were no complains in spite of act of Government from a foreign country. On December 7, 2012, Chávez came back to Caracas.
Now, the difference is that two months have passed and neither pictures of Chávez nor Chávez's voice record have been publicly disclosed: only signatures have been seen.
The Law establishes:
Lawyer Antonio Rosich participated in the writing team of the Law on Data Messages and Electronic Signatures which constitutes the legal framework that brought the electronic signature to life. It is nowadays offered to everybody, not only to the president. It is about a Decree-Law (number 1,204) which was ready to be enacted in December 2000 and which was issued in the Official Gazette on February 10, 2001.
Rosich proposes that there are reasons for, at least, one reasonable doubt: "Because of lack of proper knowledge, those in the government may have taken a digital image incorporated for a certified electronic signature, which is wrong. The truth is that now a new element is added to the letter taken by Maduro to the meeting of the Community of Latin American and Caribbean States (CELAC), which is a letter with the President's hand-written signature in red ink. We are experiencing a lack of information, which as a result creates doubts, and uncertainty regarding the legality of these actions. If they could broadcast a picture of President Chávez signing these documents, for instance, or any other option that serves to certify that Chávez is still alive, uncertainty could be dismissed."
The definitions are expressed in the decree-law. A data message stands for "every intelligible information in electronic format or a similar format which can be saved or exchanged by any means." The concepts have a wide meaning in order to ensure that the law does not become obsolete overtime because of technology development. The electronic signature is "information created or utilized by the Signatory, associated with data messages, which enables them to certify their authorship." Signatory, of course, stands for the electronic signature holder.
There is another element to take into consideration: the signature's certification is in brief, an additional data message supplied by an authorized provider "which attributes certainty and reliability to the electronic signature."
"When you read the definition of a certified electronic signature, it tells you specifically of a code," Rosich asserts: "Inserting a scanned or photographed image in an electronic document does not mean that it is indeed an electronic signature. However, an electronic signature could contain, additionally, a picture. More important is the code associated with the electronic element, which is what certifies the integrity of the message and the signature."
Lawyer Rosich explains that the certified signature counts on a higher level of security. And that is the type of electronic signature that was created for Venezuela's President.
Using a pen is easier
On July 16, 2011, the Law on Data Messages and Electronic Signatures came out of its dormant state in which the official sector had it. That day, on television, Chávez publicly announced that he would activate his electronic signature and proposed the necessity of developing –backed by this rule- what is known as electronic government: "The digitalization of the files of people's identification, of data of the National Electoral Council (CNE), the birth certificates, the digitalization of the fingerprinting system, of the records, of notaries, all that is based on this law."
That day, Chávez was given a certified electronic signature: "at that time, the technology consisted of a card, which was handed in to him by the minister of Science and Technology. He was requested to create a password. He claimed that he could not disclose it because it is a private password. Besides, he commented that he was going to use a provisional password and that he would change it afterwards in his office. The provisional password was ‘Maisanta2021.' Now, we do not know whether the password was effectively changed or not."
According to the situation at hand, President Chávez needed a computer and an appropriate card reader; he also needed to type his personal card number and enter a password consisting of at least eight digits. In regards with Elías Jaua's designation, it is enough to imagine what is it like doing that from his bed in the intensive care unit: "If he had to perform such task in his recovery state, with a computer and another device, why did he not just sign the original document if it was easier? The lack of information creates uncertainty regarding the veracity of the electronic signature which is, as a matter of fact, perfectly applicable to Chávez's medical condition."
The issue with the information referred by the lawyer does not only concern President Chávez's health. Another element added to the situation yet to be discovered–at least by any ordinary Venezuelan- is the graphical manifestation of the use of this electronic signature. Is it a code? Is it a number? Is it a reproduction of the hand-written strokes? "That depends on the type of certification and technology used. There is no official information concerning the nature of the intelligible manifestation of that certified electronic signature, as set forth in Article 2. That information should be disclosed. Of course, when seen at a glance, the document –where Elías Jaua's appointment as a foreign minister is made, one realizes that it seems as if it was either a seal, due to the diffusion of the signature's strokes; or a scanned signature that is pixelated when zoomed in."
To the Supreme Tribunal of Justice (TSJ), in any case
In order to own a certified electronic signature, one has to take on some responsibilities: the signatory must be able to keep this tool safe and prevent other people from using it; furthermore, they must inform the appropriate authorities in case something like it happens. Is Chávez able to meet these requirements established in the text of the law?
Rosich thinks that he cannot: "A person who has the same medical condition of President Chávez, who has undergone such a surgery, is not in full possession of his faculties, to such an the extent that he relies on health care. It is potentially demonstrable that he is capable neither of taking good care of his card nor using it. Furthermore, since it was the very superintendence which provided him with the card, there exists the chance that the code may haven been reset and the password may have been modified, just as it happens when one loses a credit card or when it gets blocked."
At least three ways could lead to filing appeals at the Supreme Court of Justice: "The lack of responsibility in the care of his electronic signature, the possible handling by the Superintendence of Electronic Certification Services (SUSCERTE), in case a password change presumably took place; or the use of the electronic signature by an unauthorized third party."
And if by any chance, any such irregularities are proven in recent documents like the one regarding the appointment of the foreign minister, in which the electronic signature, or something that they called electronic signature, is presumably used, then, all these acts would be null and void. Of course, in case that the TSJ ruled in this connection. "In this case, the President is not capable of keeping the elements of the certified electronic signature safe, and in my opinion, the consequence would be the nullity of the action; however, he would not be penalized. Logically, the people involved in the presumably inappropriate use of it would be indeed subject to punishment." It is quite unlikely that this case will be investigated, in spite of its seriousness.
Translated by Adrián Valera Villani
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