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Nowadays, the development of science and technology, which can be attributed to the intelligence and creative thinking of human beings, has greatly facilitate the interaction in trade area, and electronic signature is a case in point. The existence of electronic commerce that combines technology and trade practice has emerged faceless trading. Ironically the emergence of cyber crime also develops rapidly. The existence of digital signature that reflects the practice of cryptography system still brings problems related to its validity as evidence especially in Indonesia’s evidence law perspective. The aims of this paper are to analyze the presence of digital signature in electronic commerce and the burden of proof that applied over digital signature from Indonesia’s evidence law perspective. The methods used in this paper are conceptual and case approach. The result in this paper show that: (1) the legal position of digital signature in Indonesia’s evidence law may recognized as a new type of evidence as regulate in Law No.11 of 2008 on Information and Electronic Transaction and the nature of electronic commerce that in accordance with article 1320 Indonesia’s civil code; (2) judge in applying digital signature burden of proof may use affidavit evidence and electronic testimony methods based on the practice of international space theory and the absence between parties in contract theory.
INTRODUCTION
In its essential way, globalization as a process of social transformation has brought the condition of humans’ life in different countries and regions into one borderless condition1. The development of information age has brought significant and extensive use of global communication networks. Existence of interconnected network as a result of information technology
development with its distinct facility and program, makes the possibility of global society network interact with each other in borderless area2, meanwhile in trading area with the help of internet, it boosts individual to conduct acculturation process and trans-border trading area3.The invention of interconnected network (internet) brings seamless merging of data, information and entertainment and has opened up new vistas for businesses4. The development of information technology has brought a great impact that changes the conduction of trade from face-to-face into faceless trading with the help of interconnected network as known as electronic commerce5. Electronic commerce defines trading system that conducts with the assistance of electronic transmission, furthermore it also conducts as all kinds of trading system and trade of goods and services with internet media6. The happening of electronic commerce exists due to vast development of information technology, supported with high society demand that asks for fast, efficient service and with the existence of this electronic commerce resulted on the vast yet broad society scope in choosing product and services with many quality and quantity as the society ask. In further result, the happening of electronic commerce brings customer to have ability to gather product information, as they need in borderless area7. Electronic commerce has been considered to represent a broad range of technologies, processes and practices which automate the transacting of business through largely paperless mechanisms, involve information communicated via electronic mail, Electronic Data Interchange (EDI), or the World Wide Web. It also encompasses transactions in and between private and public sectors in both domestic and international communities8.
The happening of investigation conduct in conventional trade service, related with the practice of evidence law is a simple issue, as it helps with the presence of physical proof of evidence, but it will not be the same for the sale and purchase transaction in paperless trading that requires a more complicated way about the burden of proof, however as time changes yet following with the vast growth of information technology, leak of crimes
conducts in internet may minimize with the existence of cryptography14. Cryptography derives from Greek words “krypto and logos” meaning as hidden world, considered as subject of science that learns application techniques whose existence depend on the existence of complicated issue15, specifically in electronic contract the most well known cryptography application is digital signature16. Digital signature itself is an amount of mathematic operation derived from cryptography and resulted from a computer in an electronic document17. From the legal perspective, digital signature is a security system in a digital data made with private signature key which existence depends on public key that become its linkage, yet the existence of digital signature shows with the establishment of signature key certificate from a certifier18. From the technical perspective, digital signature is a numeric point in coherence with data with a series of mathematical procedure that is privately known by the owner of cryptography key19.
Related with the grant of security guarantee, digital signature functions to guarantee all electronic messages that exist has been sent correctly to the objective receiver, yet it may recognize as a strong proof of evidence from the legal aspect that the message has been sent and agreed with its receiver20.
The invention of digital signature as a part of asymmetric cryptography system that requires processing series and must be passed by receiver before validating message senders deems to be able to provide security guarantees for the existing electronic commerce transaction21, and in such a way it makes electronic commerce at least as secure and legally binding as traditional commercial transaction. Ironically from the perspective of Indonesia’s evidence law, digital signature position has not had its strong position as other evidence objects and may be questionable in contract that was conducted in electronic world. The aims of this paper are shown as: Part I summarizes the impact of globalization toward the practice of electronic commerce and what problems may happen related with the law of evidence based on Indonesia’s evidence law perspective; Part II explains the
fulfill by demonstrative evidence for its legally binding as evidence, that are25 :
? The existence of object as evidence;
? Representative accuracy, meaning that the equalization of size, shape and its dimension in avoiding confusion in evidence proofing as needed;
? Authentication, meaning that the demonstrated evidence should describe and represent the actual evidence;
? Identification, meaning that the demonstrated evidence should match exactly with the actual evidence;
? Admissibility, meaning that the demonstrated evidence must be able to prove something relevant, significant and competent;
? Equality, meaning that the demonstrated evidence should clarify the proven fact.
While in the case of the electronic contract, the type of signature used is an electronic signature. Electronic signature is part of signature that has the same function with the signature in its traditional form, which uses the transformation of electronic data messages or electronic documents with cryptographic system that managed by the agency issuing the certificate validation of electronic signatures26. In relation with its context, electronic signatures this issue is not the same as the context of such signature or electronic form like the general of a written signature on paper. Electronic signatures are simple in this case obtained by making a message digest of a summary of the mathematical language in documents sent through the realm of cyberspace27.
Meanwhile, the presence of electronic signature in its function term does not have big difference in conventional signature, whereas by its function in transforming electronic data message or electronic document using cryptography system obtained from certificate authorization; it will provide important function likewise28:
? Minimize the risk for the actions of any parties who attempts to breach the agreement and forge documents;
? Provide high level security for information transmission over open networks and reliability of data integrity;
? Provide convenience for non paper agreement transaction;
? In relation to the nature of digital signature itself, it has distinct characteristics that may support his position as new types of evidence, that are29 :
? Authenticity means when digital signature should possible to verify whether the data message has indeed been sent by the person or object claiming to be the originator. The authenticity of electronic data obtained from digital certificate by user/applicant is request to Certificate Authority;
? Integrity means the presence of data sending also providing assurance that the submitted data will never be modified or changed during the sending and saving by unauthorized party;
? Non-repudiability means in the appliance of digital signature, sender cannot deny that he/she has sent the messages yet deny the content of the messages when it come to content differences;
? Confidentiality means that digital signature may protect data from unauthorized internal users, intercepted during transmission.
In the international regulation relates to the practice of electronic commerce, the establishment of UNCITRAL 1996 Model Law on Electronic Commerce has provided legal recognition of data message transmitted via electronic or other form, yet in attempt to find technical solutions to meet the requirements of existed law and provide recognition of existing data messages30.
The existence of the law is not only as a corridor, but it also includes the role of institutions and legal institutions, which required bringing the law in reality. In Indonesia, where the laws hold the main role in community, the renewal process can conduct with updating the laws35.
In giving further analysis in Mochtar Kusumaatmadja statement related with analyzing digital signature burden of proof, correlated institution and related legal regulation also hold an important role, what means by correlated institution are the parties who own private key and public key involved in the establishment of digital signature to authorize related data, also with the presence of certificate authorization agency as an independent agency, It bridges the legal problem issues in conduct electronic commerce and established secure key regard as digital signature in support electronic commerce practice
The existence of globalization resulted by the rapid development in information technology has brought nations in possessing all technology mostly that has brought great benefit to their economy. The presence of digital signature with its high-quality security system yet its legal status as valid evidence in electronic commerce, and related its burden of proof need equal combination between legislators in legislate regulation, international practice of international civil law and judge competency in conducted dispute settlement related to the electronic commerce burden of proof. Last but not least, It is urgent to legislate further regulation in digital signature evidentiary method, conduct the society socialization related to the guidelines of electronic commerce practice and mostly to ensure the implementation of good faith principle among all kinds of contracts.
INTRODUCTION
In its essential way, globalization as a process of social transformation has brought the condition of humans’ life in different countries and regions into one borderless condition1. The development of information age has brought significant and extensive use of global communication networks. Existence of interconnected network as a result of information technology
development with its distinct facility and program, makes the possibility of global society network interact with each other in borderless area2, meanwhile in trading area with the help of internet, it boosts individual to conduct acculturation process and trans-border trading area3.The invention of interconnected network (internet) brings seamless merging of data, information and entertainment and has opened up new vistas for businesses4. The development of information technology has brought a great impact that changes the conduction of trade from face-to-face into faceless trading with the help of interconnected network as known as electronic commerce5. Electronic commerce defines trading system that conducts with the assistance of electronic transmission, furthermore it also conducts as all kinds of trading system and trade of goods and services with internet media6. The happening of electronic commerce exists due to vast development of information technology, supported with high society demand that asks for fast, efficient service and with the existence of this electronic commerce resulted on the vast yet broad society scope in choosing product and services with many quality and quantity as the society ask. In further result, the happening of electronic commerce brings customer to have ability to gather product information, as they need in borderless area7. Electronic commerce has been considered to represent a broad range of technologies, processes and practices which automate the transacting of business through largely paperless mechanisms, involve information communicated via electronic mail, Electronic Data Interchange (EDI), or the World Wide Web. It also encompasses transactions in and between private and public sectors in both domestic and international communities8.
The happening of investigation conduct in conventional trade service, related with the practice of evidence law is a simple issue, as it helps with the presence of physical proof of evidence, but it will not be the same for the sale and purchase transaction in paperless trading that requires a more complicated way about the burden of proof, however as time changes yet following with the vast growth of information technology, leak of crimes
conducts in internet may minimize with the existence of cryptography14. Cryptography derives from Greek words “krypto and logos” meaning as hidden world, considered as subject of science that learns application techniques whose existence depend on the existence of complicated issue15, specifically in electronic contract the most well known cryptography application is digital signature16. Digital signature itself is an amount of mathematic operation derived from cryptography and resulted from a computer in an electronic document17. From the legal perspective, digital signature is a security system in a digital data made with private signature key which existence depends on public key that become its linkage, yet the existence of digital signature shows with the establishment of signature key certificate from a certifier18. From the technical perspective, digital signature is a numeric point in coherence with data with a series of mathematical procedure that is privately known by the owner of cryptography key19.
Related with the grant of security guarantee, digital signature functions to guarantee all electronic messages that exist has been sent correctly to the objective receiver, yet it may recognize as a strong proof of evidence from the legal aspect that the message has been sent and agreed with its receiver20.
The invention of digital signature as a part of asymmetric cryptography system that requires processing series and must be passed by receiver before validating message senders deems to be able to provide security guarantees for the existing electronic commerce transaction21, and in such a way it makes electronic commerce at least as secure and legally binding as traditional commercial transaction. Ironically from the perspective of Indonesia’s evidence law, digital signature position has not had its strong position as other evidence objects and may be questionable in contract that was conducted in electronic world. The aims of this paper are shown as: Part I summarizes the impact of globalization toward the practice of electronic commerce and what problems may happen related with the law of evidence based on Indonesia’s evidence law perspective; Part II explains the
fulfill by demonstrative evidence for its legally binding as evidence, that are25 :
? The existence of object as evidence;
? Representative accuracy, meaning that the equalization of size, shape and its dimension in avoiding confusion in evidence proofing as needed;
? Authentication, meaning that the demonstrated evidence should describe and represent the actual evidence;
? Identification, meaning that the demonstrated evidence should match exactly with the actual evidence;
? Admissibility, meaning that the demonstrated evidence must be able to prove something relevant, significant and competent;
? Equality, meaning that the demonstrated evidence should clarify the proven fact.
While in the case of the electronic contract, the type of signature used is an electronic signature. Electronic signature is part of signature that has the same function with the signature in its traditional form, which uses the transformation of electronic data messages or electronic documents with cryptographic system that managed by the agency issuing the certificate validation of electronic signatures26. In relation with its context, electronic signatures this issue is not the same as the context of such signature or electronic form like the general of a written signature on paper. Electronic signatures are simple in this case obtained by making a message digest of a summary of the mathematical language in documents sent through the realm of cyberspace27.
Meanwhile, the presence of electronic signature in its function term does not have big difference in conventional signature, whereas by its function in transforming electronic data message or electronic document using cryptography system obtained from certificate authorization; it will provide important function likewise28:
? Minimize the risk for the actions of any parties who attempts to breach the agreement and forge documents;
? Provide high level security for information transmission over open networks and reliability of data integrity;
? Provide convenience for non paper agreement transaction;
? In relation to the nature of digital signature itself, it has distinct characteristics that may support his position as new types of evidence, that are29 :
? Authenticity means when digital signature should possible to verify whether the data message has indeed been sent by the person or object claiming to be the originator. The authenticity of electronic data obtained from digital certificate by user/applicant is request to Certificate Authority;
? Integrity means the presence of data sending also providing assurance that the submitted data will never be modified or changed during the sending and saving by unauthorized party;
? Non-repudiability means in the appliance of digital signature, sender cannot deny that he/she has sent the messages yet deny the content of the messages when it come to content differences;
? Confidentiality means that digital signature may protect data from unauthorized internal users, intercepted during transmission.
In the international regulation relates to the practice of electronic commerce, the establishment of UNCITRAL 1996 Model Law on Electronic Commerce has provided legal recognition of data message transmitted via electronic or other form, yet in attempt to find technical solutions to meet the requirements of existed law and provide recognition of existing data messages30.
The existence of the law is not only as a corridor, but it also includes the role of institutions and legal institutions, which required bringing the law in reality. In Indonesia, where the laws hold the main role in community, the renewal process can conduct with updating the laws35.
In giving further analysis in Mochtar Kusumaatmadja statement related with analyzing digital signature burden of proof, correlated institution and related legal regulation also hold an important role, what means by correlated institution are the parties who own private key and public key involved in the establishment of digital signature to authorize related data, also with the presence of certificate authorization agency as an independent agency, It bridges the legal problem issues in conduct electronic commerce and established secure key regard as digital signature in support electronic commerce practice
The existence of globalization resulted by the rapid development in information technology has brought nations in possessing all technology mostly that has brought great benefit to their economy. The presence of digital signature with its high-quality security system yet its legal status as valid evidence in electronic commerce, and related its burden of proof need equal combination between legislators in legislate regulation, international practice of international civil law and judge competency in conducted dispute settlement related to the electronic commerce burden of proof. Last but not least, It is urgent to legislate further regulation in digital signature evidentiary method, conduct the society socialization related to the guidelines of electronic commerce practice and mostly to ensure the implementation of good faith principle among all kinds of contracts.