Missing the Starting Gun

“And then one day you find
Ten years have got behind you.
No one told you when to run;
You missed the starting gun.”

Time, Pink Floyd, from Dark Side of the Moon

76_starting gun

On hearing the other day of a jurisdiction that is still insisting on “wet signatures” for court documents, I wondered, “What are they going to do when the really new technology gets here?” Almost immediately, I realized that, in the timeframe in which statutory, rule and policy change exist (months and years), “new” technology is really here already; or it might as well be.

For years now, acceptance of electronic signature for court documents has advanced, albeit sometimes at an almost excruciatingly slow pace. Yet even as, one by one, the justifications for avoiding, postponing or, even worse, “backing up” e-signatures with wet signatures have been shown to lack validity, resistance persists in a shrinking, but still unfortunately significant, number of jurisdictions.

Even ignoring the money that is being left on the table (or, put another way, leeched from the judicial budget), as well as the inherent loss of efficiency and introduction of opportunity for error, there are forces at work today that present another major downside to leaving laws, rules and policies in place that inhibit full adoption and use of e-signatures. New technologies include fingerprint identification, facial recognition, retinal verification and even DNA matching (without blood). Some of these are already in use or approaching readiness for prime time. New smart phones have fingerprint identification (which is rapidly improving). Apple is reportedly working on a facial recognition interface to unlock iPads and iPhones. Within the next few years, such biometric authentication will not only be mainstream, it will be required for most security.

Admittedly, wholesale adoption of universal biometric verification is still a ways down the road. One might argue (and, in private, I might be that one) that it’s closer than you think; but it isn’t here yet. But that doesn’t mean that there’s any time left before jurisdictions can comfortably start exorcising references to and requirements for wet signatures on court documents in their laws, rules and policies.

Courts and jurisdictions that have gone through the process and due diligence of tracking down, identifying, examining the reasons for and removing (without compromising security or integrity) the almost infinite hiding places of requirements for wet signatures will find transition to the next phase of authentication much less painful. They will, in fact, be able to make the transition. Those that fail to purge those anachronistic requirements and continue to operate full or partial wet-signature processes will have a much more difficult time of it.

This fact represents one of the often overlooked risks of trying to skip or sit out a change cycle. On the one hand, you might think that you can save the trouble and expense by only changing once. Ha, ha — look at those poor courts that spent all that time, money and effort converting to newer technology, only to later have that technology be replaced by something else.

Again, even ignoring the financial and operational benefits the adopting courts enjoyed, such thinking ignores one critical reality: Usually the next cycle can only be reached when starting from a firm foundation in the previous cycle. Furthermore, obvious as it sounds, people and organizations — including courts — that have experienced change more readily embrace the need for and adapt to more change later.

Over the past several years, the financial situation of the justice system had, among its many unfortunate consequences, the effect of stifling change in many places. Now the time has come to try to get back in position to catch the next wave or risk being swamped.

Yes, that WAS the Starting Gun.

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