ELECTRONIC SIGNATURE IN CHILE

The regulations that establish the electronic signature in Chile are currently established in Law No. 19.799, on electronic documents, electronic signature and certification services of said signature, published in the Official Gazette of April 12, 2002. Its complementary rule is the DS Nº 181, published in the Official Gazette of August 17, 2002.

In the first rule we speak generically of electronic signature, but in its 2nd article it makes the distinction for purposes of the law in two categories:

1) .- Electronic signature (simple): "Any sound, symbol or electronic process, which allows the recipient of an electronic document to at least formally identify its author." In this category some authors call it "simple" to make the distinction with the generic concept and, also, to contrast it with the following category (letter f).

2) .- Advanced electronic signature: “That certified by an accredited provider, which has been created using means that the holder keeps under his exclusive control, so that it is linked only to it and the data to which it refers, allowing the subsequent detection of any modification, verifying the identity of the owner and preventing him from knowing the integrity of the document and its authorship ”(letter g).

In a first difference, which is not immediately detected, is that the advanced electronic signature implies an accredited certification provider, that is, an entity that has the technological capacity to carry out the system that operates the electronic signature and that, also , is endorsed by the corresponding authority that establishes that it meets these technical requirements. The simple electronic signature does not require such accreditation from the provider.

Another difference between the two, and that is obvious, refers to its effects. Indeed, the simple one only allows a "at least formal" identification of the author of the document. It would be the equivalent to the accepted practice in some countries or institutions of an abbreviated signature or "half signature" of the handwritten officer, having a lower value and, from the official point of view, none. It does not prove the authorship of the document fully On the other hand, the advanced electronic signature is one that meets the objectives of the traditional handwritten signature by fully accrediting the authorship of the document it signs.

As we can see, this definition in itself already establishes one of the elements of the electronic signature: the "authentication of authorship", that is, to be certain that who signs is actually the one who issued the document.

The second element refers to the so-called "integrity of the message", that is, since it is issued by its author until it reaches its recipient, it remains intact, that is, without any alteration.

The third element is the so-called "privacy of the message", that is, that it is known only by the sender and by whom the recipient is.

Before continuing with current legislation, it is necessary to make a scope. While it is true that Law No. 19.799 is the current Chilean norm on the subject, it was not the first on the subject. In fact, there was previously Decree No. 81, published in the Official Gazette of June 26, 1999, called "Regulates the use of the digital signature and electronic documents in the State Administration."

In this standard, currently repealed, it contained two key concepts. First, the electronic signature, understood as “computer code that allows to determine the authenticity of an electronic document and its integrity, preventing its transmitter from ignoring the authorship of the message later ”. Then came the concept of digital signature, consisting of a “Kind of electronic signature that results from a validated computer process, implemented through a cryptographic system of public and private keys” (art. 2, letters b and c, respectively).

As is clear, this regulation was much more explicit and clear than the current law and its regulations, although less detailed and referred only to the State Administration, not of general application as the current law. Here he makes a notable distinction: he establishes the electronic signature as a generic category, the digital signature being a kind of it.

To pay for this distinction, we can resort to Article 2 of the current law, which in its letter a), when defining the electronic word, states: “characteristic of technology that has electrical capabilities, digital, magnetic, wireless, optical, electromagnetic or other similar ”.

In addition, we must bear in mind that, although the law does not expressly refer to it, in Chile the public and private key system is used as in the old regulations if it was expressed. Thus, from the technological point of view, the law is neutral (Article 1, second paragraph).

The issuance of the electronic signature regulations obviously goes hand in hand with the regulation of the electronic document that the law defines in article 2, letter d): “any representation of a fact, image or idea that is created, sent, communicated or received by electronic media and stored in an ideal way to allow its later use ”.

He then declares that the electronic document, as a rule, has the same value as a paper document and that the electronic signature will be regarded as handwritten for all legal purposes (art. 3), delivers the rules on the value of documents in the light of the regulations on existing instruments in the Civil Code (arts. 4 and 5).

Here we find what some authors have called the "electronic instruments", namely:

i) .- Electronic Public Instrument: in order to have the quality of a public instrument, an electronic document, in addition to complying with their requirements, must be signed by an advanced electronic signature. In addition, in trial they will make full proof.

ii) .- Electronic Private Instrument: in order to have the quality of a private instrument, it must comply with their requirements. However, if it is subscribed with an advanced electronic signature, it will have the same probative value of a public instrument, except for the date, for which it must consist of an electronic date. The law defines the electronic date as “set of data in electronic form used as a means to verify the moment in which an action has been carried out on other electronic data to which they are associated” (art. 2, letter i).

iii) .- Acts of the organs of the State: Produce the same effects as those subscribed on paper and so that they have the quality of a public instrument or have the effects of it, they must be signed by an advanced electronic signature (arts. 6 to 10) .

We must keep in mind that the acts of the State fall into a doctrinal category called "official instruments" and fall within what are public instruments. Since the State's action is largely formal, if it is desired that they produce effects, especially terminal acts, in their electronic format they must have the advanced electronic signature. In this regard, the law mandates that the minister of faith of the respective body or a person specially designated for this purpose, acts as a certifier of electronic signatures.

Finally, in the system we find the Certifier or also called the Certification Services Provider that is defined as the “entity providing electronic signature certification services”, who issues the so-called “electronic signature certificate”, which is the “electronic certification which attests to the link between the signer or certificate holder and the creation data of the electronic signature ”(art. 2, letters c and b respectively).

There is also the accrediting entity, which is currently the Undersecretariat of economy and smaller companies and who is responsible for carrying out the accreditation procedure that consists in the demonstration that the certifying entity “has the facilities, systems, computer programs and the necessary human resources to grant the certificates in the terms established in the law and the regulations… ”. (art. 17, first paragraph).

Finally, we find the user or holder, who is a person who uses an electronic signature certificate under his exclusive control, which consists of the electronic certification attesting to the link between the signer or certificate holder and the creation data of the electronic signature (art. 2, letters byu). In sum, a person when creating an electronic signature can use it exclusively and the verification that said signature belongs to him is given by the certificate. This whole system is feasible to work thanks to the work of the certification service provider who records the link.

We must point out that this law and its regulations have been a great contribution to the development of activities in Chile and the rules on computer science, one of the most successful and best achieved.

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Manuel Vergara Rojas
Lawyer. Degree in Legal Sciences from the University of Valparaíso, Chile (State). He currently works as a Professor in the Law Degree, Viña del Mar Headquarters of the University of Las Americas and assistant in the Law Degree at Andrés Bello University, Viña del Mar Headquarters, in the area of ​​Public Law and Law History. He has published three books and scientific articles on public, computer law and history of law education.

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