Saturday, May 7, 2011

Trust and E-Filing

There is a significant differentiation between e-filing systems design to address inherent issues between trusted and un-trusted E-filers.  Let me explain:

An article by former Public Broadcasting System “pen-named” columnist, Robert X. Cringley. "The T Word" discussed the concept of trust.  He wrote:

“(T)rust is … based on one of two methodologies — empiricism or transparency” The essence of empirical trust in this instance is “I trust because I don’t need to trust because I am (or soon will be in the rube scenario) immune to harm.” This immunity comes from a mathematical proof, whether that proof is provided by a strongly encrypted password on a computer file or by the hedging of counter-parties in some complex financial derivatives play. Empirical trust is a zero-sum game.”

“Trust through transparency is a completely different creature based on the novel idea that people say what they mean, do what they say they will, and make things that work because you can see how they work inside.”

E-filing systems that are based using Electronic Filing Service Providers (EFSP - see note 1 below)  are essentially empirical trust systems.  The courts have “hedged” their risk by allowing the EFSP to validate the filer and handle payments.  In turn if the EFSP charges their fees via credit card that later default, well they have hedged that risk/trust via the credit card service company who absorb the loss (as would the courts if charged the credit card directly).

Also an EFSP could be another government agency that the court implicitly trusts and vouches for their user community.  A prosecutor, social service agency, or law enforcement department would maintain their authorized user access that in turn would provide identification verification for e-filing.

Finally the court themselves could develop their own “circle of trust”(2)  as have the US Federal Courts who validate their e-filing users via a sign-up and training procedure.  For example, the US Bankruptcy Court in San Diego explains on their web page that “to become a CM/ECF Registered User that one must register and complete the assigned training”

But what about E-filers, such as the self-represented, who do not use an Electronic Filing Service Provider to vouch for them?  They will have to be initially viewed as un-trusted E-filers.  There is a very old but true saying that came from a New Yorker magazine cartoon  “On the Internet, nobody knows you are a dog”.  The fact of anonymity has been a boon and curse to the users of the Internet.  In our case it is a curse because we must have reasonable assurance that the person submitting the electronic is in fact that person (or authorized person).  The risk of “spam” filings and other type of network attacks is real.  Thus since the goal is to make e-filing as accessible and convenient to use for as many persons as possible, these issues and limitations must be addressed by technology, rules, and procedures.

Some of these problems may be addressed by initiatives in many countries to create secure online identity.  For example, in April, 2011 the USA President, Barak Obama issued a "blueprint" for creating a system of digital identity.  When such systems are developed they will be of great help to the courts in adopting and implementing E-filing.


1) EFSP - Texas ( eFiling for Courts ) and others have developed e-filing systems based upon the concept of statewide portal with the end users being serviced by private corporations known as Electronic Filing Service Providers or EFSP.

2) The “circle of trust” quote is from the film – “Meet the Parents”:

3) The graphic accompanying this post is based upon the excellent graphics illustrating collaboration concepts published at: