Fernando-Galindo.doc by hedongchenchen


									                               Internet and the Law.
                                    From Spain

                             By Fernando Galindo
                      Prof. Titular of Philosophy of Law
                            University of Zaragoza

        The paper presents the existent legislation in Spain on Internet. It is the
legislation in these moments, when the widespread installation of Internet begins.
Given the initial phase of this technique and their regulation, the first part of the paper is
devoted to expose 1) that Internet is the net of networks that allows to communicate to
citizens, companies and Governments universally, in good part of the environments of
its respective activities, and 2) that Internet has important technical and juridical limits.
The second part of the paper presents the main features of the existent legislation on
Internet in Spain. The paper concludes with the exhibition of several spanish initiatives
that, from technical and juridical perspectives, put in action the legislation directed to
promote the expansion of the use of Internet

         To present the existent regulation in Spain on Internet, it becomes precise to fix,
initially, what is Internet, pointing out the characteristics and more important problems
of the phenomenon, in the period of beginning of their general installation that is the
one that happens in these moments in Spain. This will present the basic reasons of the
reach of the regulation promulgated until this moment.

        It is necessary to advance that, given the novelty of the phenomenon, the
regulation referred seemingly to Internet in Spain is scarce. We shall see that this
regulation is reduced practically to the normative on electronic signature, the regulation
on domain names and the normative directed to promote the expansion of Internet. Only
the shortage is apparent because, besides that these matters are at this time the most
important on Internet given their technical characteristics, the normative regulation is
much wider, if one keeps in mind that Internet is the instrument by means of which it is
made reality the possible applications and developments that, for years, the technologies
of the telecommunications offer in connection with the development, installation and
use of computer systems. It is necessary to keep in mind that basic traditional legislation
on information systems, for example the one referred to: protection of data, intellectual
property of the computer programs or the Penal Code of 1995, is suitable, in more or
smaller measure, to the fact that the computer systems can be used at distance by means
of the telecommunications.
        Also. These possibilities and their use in all the environments, especially in the
activities of the juridical institutions that constitute the base of the State of Right: the
organization of the Administation of Justice and Public Administrations in general, they
were already prescribed by legislation promulgated in the nineties even when it was not
mentioned Internet in that legislation.

        This paper speaks of everything presenting, in a first moment, a brief description
on what is Internet.
        In second place the technical and juridical limits of Internet are exposed, These
limits force to adopt a global strategy, coherent with those adopted in another countries,
for the regulation of the phenomenon.

        In third place the most important characteristics in the legislation referred
directly to Internet promulgated recently in Spain are presented here.

       In fourth place it is made mention to the legislation that allows the use of the
telecommunications for the administrative and judicial organizations. This legislation is
of application because Internet is an instrument dedicated to make reality the use of the

       In fifth place several initiatives happened in Spain are exposed. They are
directed to the setting in practice of the norms that authorize the use of Internet and the
telecommunications in the juridical environment.

       In sixth place the conclusion comes..

       Literally it is the net of networks of transmission of digital files or systems of
information that facilitates their transfer among computers, located in different places,
using the existent communication resources: cables, telephones, satellites or
radioelectric waves fundamentally.

       The files contain information picked up in texts, sounds and images.

        The transmission is possible because the exchanged messages have a standard
format. This is that they are combinations of numbers or digits. and are emitted
following some same rules from a address/computer client to another address/computer
client. The transmitted messages, also, are addressed or guided by intermediate
computers, servers or organizers that, completing standard orders, they finally have to
make arrive the messages from the issuing computer to the receiver of the same ones.

        The setting in action of Internet depends on the standard development of these
orders. Orders that are part, from the seventies of the present century, of the protocols IP
and TCP: groups of technical rules that allow to assign addresses or names to the
computers, (IP: Internet Protocol) among those that the messages are sent, and to
control the transfer of files (TCP: Transmission Control Protocol) to the different

       The protocols, after the initial phase of their development that had military
character, have been created, developed and put in action for organizations of scientific
character and companies that have assigned names and domains to the computers clients
and the computers servers. These denominations and the operation of the protocols have
allowed to constitute the world network of computers called Internet.

        As we say the net allows to send files, in practically instantaneous form, of
computers clients that are located in a place from the world to another computers clients
that are located in another place of the world, by means of the controlled transmission of
the same ones by the computers servers/organizers, that are property of the companies
and institutions that for the fact of possessing such computers in connected continuous
service to the net, they are suppliers of access of the computers clients to Internet. The
names, domains, of the computers servers are recognized by the authorities that generate
standards and administer the net.

        The servers also store accessible information from another computers. The
information is placed by the proprietors of the servers or for those of the computers
clients that take charge to the first ones the publication of this information.

        The development of precise complementary programs in form of operative
systems or navigators has allowed to universalize the use of Internet. It has facilitated
that they are not simply programs for circles of initiate, scientific or technicians who
take advantage of the possibilities of Internet, that happened until this moment. At the
present time any user of a computer system can use the network, making participant of
the elements of his system to the users of another computer systems with those that it is
connected. This allows the work at distance and to act in cooperative form with users of
another systems that consent to the net and have oneself objective, and common
interests, when using certain information.

        At the present time we are to the doors of the universal generalization of these
possibilities thanks to the development of applications that facilitate the electronic trade
or at distance, the shipment of electronic messages among the users through the mail
and the beginning of what ist denominated the electronic Government, or, more
appropriately, the automatic access by means of the telecommunications to the
administrative offices of public character. As soon as the degree of use of the systems of
information in the companies is high and the introduction of Internet modifies habits
and ways of production of the same ones, it is not strange for it that is also said that
such applications facilitate a “new economy”: the digital one.

  See: EVANS, P., WURSTER, T., Blown to bits. How the new economics of information transforms
strategy, Harvard Businese School Press, Boston 2000, pp. 33 ss

       Internet is denominated the group of techniques synthesized in their essential
features until this moment, These techniques facilitate something that was already
allowed, generically, for the industrial standards and even the juridical norms since the
possibility was observed of linking communications and information systems: the
transmission, using the telecommunications, of messages or files among institutions,
companies or citizens.

       The practical realization of these technical advances had difficulties before the
development of Internet for the scarce versatility of the technique that allowed, at most,
the exchange of highly automated messages or formalized between the computers of the
originator and the receiver using lines of phone communication specially dedicated to it.

       Indeed, mechanisms like the EDI (Electronic Interchange Dates) facilitated the
communication among companies dealers of automobiles and the factories that created
them, generating changes in the production way and a better attention to the clients, for
example. But these communication mechanisms were not adapted for the expansion and
generalization of the telecommunications as soon as that required of their users the
knowledge and practice in very formalized languages. Internet, on the other hand,
allows the exchange of texts, sounds or images, reducible messages to digits but, also,
to common language, practically.

       1. The starting point

        Before carrying out a presentation of the regulation, it is good to specify
something more the general characteristics of the Internet phenomenon. These
precisions will give reason why there are regulations on certain aspects of the
phenomenon and not on another aspects.

        We can already advance that, like we will see in the following, the Spanish
legislation on Internet promulgated until this moment is centered in the following thing:

       1)    to facilitate the widespread expansion of Internet,
       2)    to regulate the mechanism of concession of names and domains, and
       3)    to establish the required mechanisms for a sure and trusted use of the

        This is coherent with the fact, already seen in the previous section, that the last
two aspects of the regulation make reference to the basic elements of the net: the routing
and the transmission of files, the protocols TCP/IP. The legislation referred to the
promotion of the expansion is consequent with the fact that in Spain it is admitted the
socially beneficial character of the union of the computer techniques and those of
telecommunications by means of the tool Internet..

        To sum up the last reasons of the legislation on Internet, it lacks also to say that
their content not only responds to the fact of the existence of Internet but also to the
circumstance that technical and juridical difficulties observed in the operation of the
basic mechanisms of Internet that claim certain contained legislative's adoption in these
moments exist. These difficulties, and those that generate the technical mechanisms
accepted as solution to the same ones, are exposed succinctly in this section.

        2. Technical difficulties

       We characterized in the previous section to Internet like the net of networks
based, fundamentally, in the setting in action of technical rules (protocols TCP/IP) that
specify rules to satisfy for the addresses of those who send or receive messages from
personal computers, using as intermediary computers servers that guide these messages.
This practice has brought consequences so much in that referred to the assignment of
names and addresses, like in the relative thing to the use of communication channels
like we mention next.


        The elaboration and setting in action of technical rules that finally have as
objective the realization of an old action, characteristic of each culture, like it is the one
of giving names and geographical addresses with that to identify to the combinations of
digits with those the computers are specified (for example: the IP address
is the same thing as tozal.unizar.es), they have been assumed until this moment by
scientific organizations of technical character and companies.

        Institutions and companies that have established rules to organize the addresses
of the computers from a concrete cultural context: the characteristic of the country in
which has been developed and implanted Internet initially: United States. In the moment
of the globalization this has brought practical consequences that have forced to the
establishment of more respectful institutions with the traditions and existent legislation
in each country where Internet extends. To these effects it is regulating the politics of
addresses and domains legally, taking charge from this mission to organisms and
independent institutions coordinated by the Foundation: Internet Corporation for
Assigned Names and Numbers (ICANN)2, whose action seems it will be more
appropriate than the one of those of scientific character: National Science Foundation
(NSF)3, or managerial: Network Solutions Inc. (NSI)4, existent until this moment.

        The new organism has, among other, the objective of establishing the opportune
coordination, when granting addresses and domains, with the organs dedicated to
protect the denominations: the registrations of public character that have left implanting
in our culture from the XIX century.

  See: http://www.icann.org/
  See the objective of NSF in : http://www.nsf.org/
  See: http://www.networksolutions.com/

       The weaknesses of the procedure that has just been pointed out, brings
consequences. One of them is that certainty doesn't exist in the addresses assigned until
this moment, or that the messages can be sent anonymously, or on behalf of another
with great easiness. This believes restlessness among the users of Internet that know the
easy thing that it is, for example, to receive through Internet an anonymous message
whose content can harm to existent own files in the computer that uses.

        To palliate these problems it is devoted the legislation referred to give rules for
the attribution of names and addresses. Of the spanish legislation promulgated until this
moment we will give reference in the next section.

          Communication channels

        The characteristic function of Internet that consists on the automatic shipment of
messages, is exercised with big limitations for the users for another reason. This is that
the channels of information for those that the files or messages are transmitted, allow to
the possessors of the computers servers or organizers, or to the owners of the networks
of communications, to see, to intercept or to modify its content. This prevents to
guarantee a fundamental principle of the communications in the State of Right: their
secret. The limitation is stronger still: it also harms to the exercise of the will because it
is not only the files that can be seen, the fact is that they can also be modified by a third
without that the sender and the receiver of the message have conscience of the change.

        The thing is that problems of those that we present in this Section appear. It
doesn't mean that the problems that are mentioned take place habitually, the certain fact
is only that if somebody has interest, the problems can happen, because it is easy to
have a technical advicer that allows that the difficulties have reality.

          3. An example

        The fact is that interceptions of the communications are taking place, even
industrial espionage that is carried out by Secret Services. It is well-known the case of
ECHELON, the net of interception of the telecommunications that is acted in cases of
prevention and persecution of the terrorism and another cases, included commercial
matters. Their existence and performance have caused a discussion in the European
Parliament, and even the adoption of a resolution of rejection to the mentioned net in
their current characteristics5. This measure has been directed to the European Union and
the Government from United States.

        The European Parliament proposed the reformation of this net of interception of
the telecommunications adapting the practices of operation of the same that make the
espionage agencies, to the usual legal practices of democratic countries. The Parliament
proposes a behavior Code that avoids bad uses and abuses of the net. The same position
begins to have echo in the own American Senate. The Secret Services of United States,
United Kingdom, Australia, Canada and New Zealand are part, among other, of the net.

    Resolution of the European Parliament on “ECHELON” of September 14 1998

         4. Summary of the technical problems
         The difficulties and problems in the use of Internet6 come from the following

      --There is not security on the identification of those that send and receive
messages. It is very easy to supplant to the authentic originator or receiver of the same

       --There is not security about the integrity of the messages. It is this way because
the messages are remitted in Internet through the nets of electronic communications of
computer to computer, what allows to the proprietor of these or to those of the nets of
communications to modify the content of the messages without the variation is noticed
by the originator or the receiver of the same ones.

        --Related to the above-mentioned it is the fact that guarantees that the principle
of confidentiality is respected on the transmitted messages don't exist. If the content of
the messages can be modified, it can also be observed by who possesses a computer or
the communication nets that serve like means of transmission, be which are these nets:
cables, fibers, electric waves radio or the communication roads in general. It must keep
in mind that the observation can take place without some rake exists on its realization.

        --Sufficiently trusted mechanisms don't exist with regard to the
acknowledgement of receipt. It is necessary the existence of third trusted parties that
testify, with the biggest possible guarantee on the part of who exchange them, the
emission moment and the reception of the messages. Without these trusted parties it is
not possible to know the identification of sender and receiver of one message. Any user
knows that it is very easy to change the date and the hour of operation of the computers
used in the transmission, shipment and reception of messages.

       These are, synthetically, some of the technical problems that show in the
massive use of the electronic communications. It is for it that is necessary to speak of a
possible serious damage of juridical principles characteristic of the democratic systems
when Internet or the telecommunications are used.

        Violation that can affect even to the juridical traffic when the regulation is put
into operation by the juridical agents when acting the existent procedures. This is the
case when the juridical agents solve concrete juridical conflicts, by means of the use of
telecommunications for the transmission of information or documents. It must keep in
mind that the main foundation of the exercise of procedures, and their juridical
regulation, is the strict respect at the principle of autonomy of the will and to its
declaration, be which is the form in which she is emitted.

        In short a wrong use of Internet implies that fundamental principles of the
juridical regulation can be harmed as those that, to example title, it is exposed next.

 These problems are pointed out, for example, in the Introduction to the Communication of the European
Union Ensuring security and trust in electronic communication. Towards to european framework for
digital signatures and encryption, COM (97) 503, http://www.ispo.cec.be/eif/policy/97503toc.html

           5. Damaged juridical principles

           Juridical security

        The harmed more basic juridical principle is that of juridical security, recognized
in the Spanish Constitution art. 9, 3. Obviously this principle is damaged if a
nonfulfilment of the formalities prescribed by the law to any type of documents takes
place, be these of private character or public. It is known that these cannot be given for
existent if there is not certainty on data so fundamental as those referred to the names of
the originator or receiver of the same. Neither if one doesn't have security on their
content or the emission date and reception of the same.

       This can sum up it in the following way. A sentence of the Spanish Supreme
Tribunal7 says that juridical security doesn't exist when there is “a writing appeared in a
municipal file of which is ignored who presents it, when it presents, on behalf of who
presents it and for what reason it presents it...” In the same way security doesn't exist
when the electronic messages that consist on a simple electronic testificación of its mere
emission or reception, are not reliable. a writing spirit in a municipal file of the q
       ue is ignored who presents it, when it presents it, on behalf of the one who the

        Obviously there is not respect to the person's dignity and their inviolable rights
that are he inherent (Constitution art. 10), when the real data of the originator or the
receiver of the message is not known .

           the and
           Limitations to the free commercial traffic.

        Harmed the principle of juridical security in that referred to the emission of the
will, the juridical system is forced for several reasons but, especially, because security
doesn't exist for the exercise of the free commercial traffic, regulated in the Constitution
art. 38. This traffic is based on the free exchange of information with relationship to the
content of the offer and the demand that the salesperson and the buyer carry out. Also,
of course, in the trust that gives the identification of both, what is not guaranteed when
one cannot taste which their basic identification is. With it, for example, it is not
possible the knowledge on the credit that deserve both.

           Attack against the secret of the communications

       The principle of the secret of the communications is one of those more firmly
assured by the juridical regulation, Constitution art. 18.3. It is coherent with the freedom
of speech principle characteristic of the democratic societies. This principle is not
respected when the messages can be seen and even modified by third.

       The principle can also be harmed when there are solutions settle down to palliate
the defects of Internet, and these solutions consist in the preservation of the secret by
concrete institutions, these don't offer enough guarantees.
    TS 3.ª S, 17 Jul. 1987.- Presenter: Mr. Martín Herrero


        But it is not only the freedom or the secret the principles harmed with the
violation of the secret of the communications, it is also the right to privacy that it is
recognized in the Constitutions and modern laws that refer to the protection of personal
data and the preservation of the intimacy or, with other words, the privacy: the one that
constitutes the terrestrial matter of thoughts, knowledge and each person's wills.

       The privacy and the secret of the communications “imply the existence of an
own and reserved environment in front of the action and knowledge of the other ones,
necessary according to the rules of our culture to maintain a minimum quality of human

     Performance of monopolies and institutions with privileged information in
connection with the exercise of the free market

         The juridical problems don't finish with those referred. Another outstanding
aspect of the same ones is the privilege situation with regard to citizens, companies and
institutions that use Internet, that have those that no longer have only the means and
enough knowledge to supplant to originators or receivers of messages but also to
interfere or simply to know its content.

        These companies, people or institutions have a nonexistent force until this
moment to control the relationships that are taking place in the entire world to global
scale by means of the use of computers and means or communication channels. It has
already been mentioned that in fact these interferences exist, which have taken place
with the purpose of pursuing criminals at the same time that, apparently, given the
ignorance of the phenomenon for the laws, also with other ends of commercial and
industrial character9.

  Spanish Constitutional Tribunal 2.ª S, 231/1988 of 2 Dic. - Presenter: Mr. López Guerra
  It is said in the resolution of the European Parliament of September 14 1998: “Considers that the
increasing importance of the Internet and worldwide telecommunications in general and in particular the
Echelon System, and the risks of their being abused, require protective measures concerning economic
information and effective encryption”

       Consumers' defense

      It is not possible to exercise the right to the defense of the consumers settled
down by the national laws (Constitution art. 51), if one doesn't know who are the
consumers, or who are the companies or trade in those that the consumers buy.

        This brings a negative consequence of great importance: it brakes the
development of the electronic trade, mechanism of growing installation as the data and
the predictions on the same, that are made by governments and independent analysts,
establish. Of course neither it is possible to advance in the electronic Government's
expansion, as mechanism that allows the connection of citizens and Public
Administrations, and even Parliaments or Tribunals, using the telematic techniques, of
wide expansion in this environment.

       Prevention and persecution of the crime

        All the above-mentioned doesn't prevent to recognize that the legal regulation is
also in question when the problems here pointed out, are solved with the mechanisms of
those that we shall present next. As we shall see the solution is the use of the techniques
of ciphered of messages that allows to solve technically the pointed problems. The
application of these techniques, of great effectiveness, has the inconvenience that it
doesn't allow the action of the bodies of security and intelligence that finally have to
discover, to pursue and to prevent the realization of crimes. It is this way because the
police action in the functions of “verification of the crime and discovery and the
criminal's insurance” (Constitution art. 126), it cannot put into practice in case forecasts
don't exist for the legal interception of the ciphered communications

        These considerations imply that the whole juridical regulation is in question
when one makes use of Internet or the networks of telecommunications without
assuming the problems and difficulties that their use without the precise measures of
security of the electronic communications has. The same thing also happens if, well-
known the solutions, these are applied attending only to the technical aspects of the
problem and leaving aside the juridical ones.

       6. Solutions
       It is possible today to speak of the existence of technical solutions that, partly,
solve the referred problems. It didn't happen it in the past. It also happens that the
technical measures are coming to be juridical solutions when being recognized by the

       The existence of the two aspects of the solutions has a great practical relevance,
because if the technical measures cannot be put in action for the nonexistence of legal
prescriptions, the juridical consequences of its use and the cost that its installation
demands, the juridical measures cannot provide only the beneficial effects that can have
for the electronic communications maintained among individuals, individuals and
companies, and individuals and companies and Public Administrations.

        Up to now the use of the technical measures is accepted legally, in a special way,
for the agreement or contract that takes place between the users and the suppliers of
these measures. Nevertheless the legal recognition of the use of the technical measures

       In this section we present the main characteristics of the technical measures that
give solution to the defects that have the communications when Internet is used.

        7. Technical possibilities

       The technical solution to the problems referred to: identification of senders and
receivers of messages sent by telematic means, guarantee of the integrity of their
content, safeguard of their confidentiality and stamping of the date and hour of the sent
and received messages to effects from avoiding their reject, it resides in the use of the
ciphered. Especially of the technique denominated cryptography of public key.

       The cryptography is especially an old solution, employed in activities of military
character. The generals and official of the armies used and use habitually cryptographyc
techniques that allow them to send orders, at the same time that they prevent the enemy
to know their content in the case of the messenger's interception or of the net of
communications for which the message is transmitted.

         We will notice here the general characteristics of the variation of the
cryptographyc techniques that it has allowed their use in Internet with the indicated
ends. This variation is the cryptography of public key. We also put of relief the most
important notes in their application by means of the mechanisms of electronic signature
and cryptography of confidentiality. Finally we point out the characteristics of the
institutions whose setting in action is indispensable when this cryptography is used: the
certification services10.

        Cryptography of public key

        The traditional cryptography put into operation by means of the use on the part
of the originator and the receiver of the messages of oneself key with which the
messages could be ciphered and deciphered. This procedure had the risk that a third
interested by the content of the messages could obtain the key and with it to decipher
the contained secrets in the message.

       In the seventies of the present century it was discovered a new system of
ciphered that makes more difficult the discovery of the key with that to decipher the
content of the messages sent with this system. This new system was denominated
system of ciphered of public key11.

   The proposals that are here exposed, they seek to clarify a complex matter insofar as possible. Another
explanation of interest is in: Information Security Committee, Section of Science and technology,
American Bar Association, “Tutorial”, in Jurimetrics Journal, vol. 38, 1998, pp. 243-260. It is specially
didactic in this respect the COM (97) 503 of the mentioned European Union (to see supra note 6)
   On the history of this cryptography to see the preparatory Reports of the OECD on cryptographic
policie in: http://www.oecd.org//dsti/sti/it/secur/prod/GD97-204.htm

       The system consists in that the messages are ciphered by means of a key that is
composed by two parts: the secret or private key and the public key. The couple of keys
is generated by each one of the users of the system of ciphered of public key starting
from a number, the private key, that is only known by the couple's of keys holder. This
way the originator of the message that uses this system of ciphered can cipher it with
the public key of the receiver who, for it, is the only person that can decipher the
message using the private key corresponding to the public one with which the message
has been ciphered. The private key is only known by the receiver.

        So that the mechanism works it is necessary that the public part of the key can
be known by all those that want to send a message to its holder. To these effects the
public key must be stored in a deposit of keys that contains as much the key as the name
and main data of its holder. The deposit must also contain the repeal of the keys. The
access to the deposit of keys must be public.

       Given these functions the entity that conserves and administers this deposit it
must be reliable. This entity is the certification service. It is denominated this way
because their main function is to certify the ownership of certain public key to the
concrete person that manifests that the key is his.

        A fundamental characteristic of the system of public key is the one referred to
that the knowledge of the public key for a third person doesn't lead, habitually, to the
discovery of the private key. The longitude of the numbers that integrate the private key,
and the calculation formulas (algorithms) used to derive the public key of the private
one, they make practically impossible to find the private key starting from the
knowledge of the numbers or digits that integrate the public key. Obviously the
difficulty of this calculation is bigger as it is bigger the longitude of the initial number
used in the generation of the public key. The security of the system resides also in that
the couple's of keys holder conserves the private key in a place that is not from easy
access to another person: a card with magnetic band is the most appropriate tool to
guarantee the reservation.

        This mechanism of cryptography of public key is the one that is using to
preserve the secret of the communications that happen using the networks of
communications. In short it is incorporate to the programs, navigators, that are used to
send and to receive messages by means of Internet. The world expansion of these
resources demands the existence of networks of certification services whose holders
must act in coordinated form constituting a world infrastructure of public key, to effects
that the techniques can complete its function.

        As it is of supposing there are numerous variants or technical of application of
the mechanism. The most significant are those that facilitate the electronic signature and
those that favor the shipment and reception of confidential messages.

       Electronic signature

        One of the applications of bigger interest of the cryptography of public key in
the telecommunications is the technique denominated digital or electronic signature as
soon as it allows:

       1)      to cipher messages with the private and public keys of the originator and
receiver of the message, in such a way that is possible to identify to both as certain
holders of the public and private couples of keys used in the ciphered and deciphered of
a concrete message, and

        2)      to assure the integrity of the received message, when being possible to
check to the reception of the same that nobody that is not their originator has modified
their content along the carried out journey using the networks of communications and
computers precise for it, and that they are located between the originator and the
receiver of the message.

        Indispensable requirement for the use of the electronic signature is, therefore, the
existence of a third person, different to the originator and receiver of the message, that
can certify the ownership of the public key with which the message has been ciphered
by the person that has ciphered it or signed indeed. Given the function that completes,
the third person is denominated exactly provider of certification services.

       The performance of the technique of the electronic signature allows,
therefore, to solve the identification problems of those that messages are
sent, to guarantee the integrity of the content and, possibly: in the case of
having the certification service the appropriate mechanisms, to certify the
date and the hour of the shipment and the reception of messages.

       Cryptography of confidentiality

       The shipment of ciphered messages using the technique of electronic or digital
signature doesn't guarantee another weakness detected to the telecommunications and
that we mentioned previously. This weakness is the one referred to the preservation of
the confidentiality of the messages. It is this way it because the sent messages using
signature electronics is transmitted with text in open format, that is to say they can be
read by third persons that have access to the networks of communications or the
computers that are used for their transmission.

        It doesn't usually happen this way it because the use of other techniques also
allows to cipher the communication channels, in such a way that although the messages
go signed and in free text it is not possible to observe its content. For that it is necessary
that the channels and the access to used computers are safe: they are ciphered.

        In all ways when channels or sure access to the computers are not used to
preserve with more rotundity the secret or the confidentiality of the communications, it
is also possible to use the ciphered of public key by means of the technique of the
ciphered of confidentiality. This technique guarantees that the text of the messages is
hidden for all, in such a way that is only possible to decipher it and, for the same thing,
to know its content for who possesses the private key corresponding to the public key
with which the text has been ciphered. This guarantee is bigger as the dimension of the
key is longer.

       Certification and registration services

        We have observed that in the use of any cryptographic technique of public key it
is indispensable the intervention of the denominated certification services.

         These services have as main function, as their own name indicates it, the
testificación or certification that the public key with which a message has been ciphered
belongs to certain person.

        It is necessary to differ properly between these certification services and
registration services. The first ones complete the paper of certifying the attribution from
a key to a person. The seconds, on the other hand, complete the functions of checking
the identification and the person's qualities of the key holder, of establishing the
relationship between the public key and their holder and of transmitting to the
certification service the registered data.

        A momentous function of the certification services, when we speak of the global
communication among people that live in any part of the world and that they want to
send messages to another people, it is the storing and the publicity of the public key of
their holders. This way any person can discover this key and to send to another ciphered
messages with the due guarantees. It doesn't fit doubt of the improvement of the
operation of these services if their actions are coordinated. For this reason associations
of certification systems are being born. These associations are denominated voluntary
systems of accreditation of certification providers.

        It is very clear the importance of the paper that can play the last services in
relation to the use of the cryptography of public key, and the paper that they will
complete in a world in that the electronic commerce and the use of the telematic in the
relationship with the Public Administrations and other institutions reach the dimensions
omened by studies and opinions emitted from all over the world by companies and

       Entities and services of certification

        It must point out that the action of the certification service doesn't introduce
some variation in the established juridical system, at least in what concerns to the
exercise from its function relative to the linking by means of its certificate of a key to a
person. This certification is consequence of what communicates him the registration
service that carries out the person's identification with the purpose of communicating
the data requested to the certification service. This means that the existence of
certification or registration services doesn't diminish the responsibility of the
certification entity, who truly takes charge to the certification and registration services
the realization of the respective operations, in which are competent, with relationship to
the person that commends, in turn, to the certification entity the benefit of its services.

        It is important to stress the distinction of functions because in another way
numerous confusions arise, especially if we keep in mind that the English expression
habitually used to name to the certification services, “Certification Authority”, comes to
make suppose that the responsibility of the certification relapses in the certification
service as soon as authority or “Authority.” It is not certain, because the certification
entity is not the service but the Bank, for example, or the company that assumes the
competence, and therefore the responsibility, of certifying certain person's
characteristics. It has left very picked up in the denomination Agency of Electronic
Certification (ACE) that has been adopted as own by the Spanish certification service
approved by different Banks and the company Telefónica. The National Factory of
Mint, certification service for the relationships among the Spanish Public
Administrations, it is not also the certification entity, in this case it is it the Spanish

         To clarify these expressions another expressions are come recognizing:
providers of certification services, for example. This is the denomination that is used in
the Spanish Decret law of electronic signature to the one that we speak here later. It is
included in the expression those who give or provide any type of service of certification
of the electronic communications. The names pursue, also, to differentiate the providers
of those who are the true ones “certification authorities”: the properly certification

        The importance of these institutions and their incipient reality is given by the
fact that the solutions proposed by the technique have already obtained juridical
recognition in different norms whose content varies by virtue of the characteristic
regulation of each country in relation to related matters to the use of the cryptography.

       1. The starting point

       After the mentioned data it is understood easily the content and the calendar of
the regulation on Internet recently approved in Spain. In short it has been promulgated:

       1.      firstly, (a) the Real Decret-law 14/1999, of September 17, on electronic

        2.      in second place (b) the Order of the Ministry of Development of March
21 2000, that regulates the system of assignment of names of domain of Internet with
respect to the country code corresponding to Spain (.es), and

        3.      (c) the Real Decrees Law 7/2000 of June 23, on urgent measures in the
sector of the telecommunications, dedicated partly to dictate measures that foment the
use of Internet for the companies and the citizens by means of its depreciation.

        The promulgation of this regulation is justified by the fact of the beginning of
the expansion of Internet, the existent consent about its relevance for the economic and
social development as soon as instrument able to create wealth and new employments,
and also for the conscience that the net, such and like it is conceived and it operates,
has strong technical risks and juridical consequences that require norms that propitiate
its use at the same time that overcomes the weaknesses. With the result that the first
norms promulgated on Internet are referred to the use of the techniques of cryptography
in the relative to the electronic signature (a) and to the juridical régime on the addresses
and the domain names (b). The last norm (c), once it is guaranteed the mechanism of
solution of the technical problems, is devoted to foment the expansion of the use of

        The last norm continues the garantist line that offer the previous basic norms
referred to the property of the products of Internet, protection of personal data and penal
law. These constitute precedents of the most recent. They are, in short, the basic
regulations referred to the guarantee on: the property of the programs that are generated
thanks to the combination of texts, sounds and images (intellectual property in their
reformation of 1998) and the protection of personal data modernized to the world of the
telecommunications (new law of personal data protection of 1999). It is a supplement to
these regulations the recent Penal Code (1995).

        Next we pick up the fundamental characteristics of this normative differing
among the regulation on signature, the one referred to names and the one that is in
charge of      guaranteeing the expansion of Internet safeguarding the different
fundamental rights that can be harmed by an use of the technique that doesn't respect to
the established juridical mark.

       2. Signature

       In this section we will differ among the general regulation on the use of the
cryptography, the normative regulation on electronic signature (private and public
environments) and two sentences of the Supreme Tribunal that, in the mercantile
environment, have already spoken on the matter.

       General regulation

        It exists a normative of general character that without mentioning to Internet
explicitly it is in charge of this technique by means of the regulation of functions that
the same one facilitates. The most significant norms are two: the referred to the general
regulation on telecommunications that is in charge of the cryptography, and the civil
procedural regulation that picks up the fact so much that the digital messages can be
proven in trial, as the fact that these messages can be a means for the communication of
procedural acts. We refer to this regulation in this section.


       The legislation makes previsions on the use of cryptography in the use of
networks of telecommunications. In this sense a general regulation is promulgated on
the ciphered of communications in the General Law of Telecommunications of April 24
1998. In this norm it is authorized the use of the ciphered of public key.

       The regulation of the cryptography is in the arts. 49 at the 53 of the General Law
of Telecommunications. In short in them the following thing is picked up:

       1. The principle of the secret of the communications is remembered, as regulated
in the Constitution (arts. 18.3 and 55.2) and in the Law of Criminal Prosecution (art.
579). This principle is compulsory to the operators that lend services or exploit nets of

        2. The possibility of using the ciphered of the messages as mean of protection of
the same ones, at the same time that is made the forecast that the norms in development
of the law will settle down conditions for the procedures of ciphered.

       3. The norm settles down that in that referred to the ciphered that guarantees the
confidentiality, it will be able to impose the obligation of notifying well to an organ of
the General Administration of the State, or a public organism, the algorithms or any
procedure of ciphered used to effects of their agreement control with an effective

       4. It is prescribed that the operators of networks of telecommunications or
services that use any procedure of ciphered, they will facilitate to the General
Administration of the State without cost some for this and to effects of the opportune
inspection, the decoder that use.

       Law of Civil Procedure

       It is also foreseen the use of the ciphered of the telecommunications, and
implicitly of Internet, in the procedural Right.

       The new Law of Civil Prosecution, January of 2000, 7, that will go into effect in
January of 2001, pick up three fundamental aspects for the use of Internet:

      1. The statement that the means and tools that reproduces words, date, numbers
and mathematics operation give evidence (arts. 299 and from 382 to 384)

      2. The prescription that the processal communication acts made by electronic,
computers and similar means are possible (art. 152, 2).

       3. The possibility of the execution of credits that are credited by means of
documents, whichever is their form and class, or the physical support in that are, that
appear signed by the debtor or with their stamp or marks or any other sign, physics or
electronic, coming from the debtor (art. 812).

       Real Decret of electronic signature

        The regulation referred to electronic signature is the Real Decret-law 14/1999, of
September 17, on electronic signature (authenticated by the Parliament by Resolution of
October 21 1999). We will present here the most characteristic features in this norm and
their consequences so much for the public as the private environment . The last thing for
the fact that exists in Spain from 1997 a normative related with the electronic signature
for the environment of Public Administrations.

         The Real Decret is adjusted, in big features, to the European regulation on the
matter: the truth is that was elaborated having present the process of European creation
of the normative one. The reference of the Real Decret is the Directive 1999/93/CE that
settles down a community mark for the electronic signature, approved by the Parliament
and the Council of the European Union, December 13 1999.
         From a functional point of view it is necessary to say that the objective of the
Real Decret-law is to strengthen the security of the communications and transactions so
much from a technical point of view, as juridical. Plus in short the Real Decret
establishes that the electronic signature completes, in connection with the electronic
documents, both main characteristic that are attributed to the hand written signatures,
this is, the imputation to a certain pesona (allowing the identification of the author of
the document) and the guarantee of the integrity (when allowing to assure that the
message has not been manipulated after its signature, detecting any alteration).

       The content of the Real Decret is, in synthesis, the following one:

       1. It gives legal effects to the electronic signature and to the advanced electronic
signature (art. 3)

       2. It is a regulation of the certification services providers (title 2, chapters 1 and

       3. It stipulates a register for the certification services providers (art. 7)

       4. It stipulates the administrative inspection of the certification. services
providers (title 2, chapter 4)

        5. It regulates the conditions of the expedition and loss of legal validity of the
certificates (title 2, chapter 2)

      6. It regulates the devices of electronic signature and the evaluation of their
adequation to the normative (title 3)

      7. It gives a table of infractions and sanctions and stablishes the adequate
procedure (title 5)

        It exists a norm that puts in application the content of this normative one, at least
in that referred to some technical aspects of the same one. In short it is the Order of
February 21 2000 of the Ministry of Development for which the Regulation of
providers' of certification services accreditation and of certification of certain products
of electronic signature is approved. This norm has taken a step ahead in that referred the
procedures that must continue in that referred to the establishment of institutions that
are able to certify devices of electronic signature to settle down. It nevertheless the
norm must sum up so that its application can take place.

        The regulation referred to the Registration of the suppliers of certification
services has not still been promulgated. The Real Decret Law establishes this
Registration in the Ministry of Justice. This norm has a great importance because the
establishment of this Registration is indispensable requirement so that the signature
system can put on complete activity: the suppliers of services of certification of
advanced signatures should be inscribed in the one mentioned Registration.

        The regulation of another complementary aspects begins. For example it is
necessary to say that there is an Instruction of December 31 1999 of the General
Direction of the Registers and the Notaries for the one that instructions are given
referred to the legalization of books in the Mercantile Registers through telematic
procedures using the possibilities that contains the regulation on electronic signature.

       It is also important the Resolution of April 26 2000 of the General Direction of
the Registers and the Notaries that specifies the environment of application of the RDL
14/1999 of September 17 on electronic signature. This specification is made in
connection with the professional performance of the Registers of the Property and
Mercantile. Precise explanations are given on the use of the electronic signature by
Notaries, Registers and judicial and administrative institutions.in relationship with
performances in those that the Registers of the Property and Mercantile intervene.

        There is even a sustantive regulation in connection with the sale and purchase of
products made through telephone. A Royal Decret December 17 1999, on the contracts
of purchase by telephone exists. In this norma is granted a preferable procedural
situation to the one of those who make this purchase using an advanced electronic

        Public Administrations

         The General Administration of the State has the necessary basic juridical
infrastructure to use the telematic means in the relationships among the different
organisms of the same one and, by means of the signature of the corresponding
agreement, the relationships between the General Administration and another Public
Administrations of autonomous, provincial and local character. This regulation also
facilitates the established relationship by means of the telecommunications between the
citizens and these Administrations12.

        At the present time even it is had a concrete experience of presentation of the
rent of physical people via Internet for the citizens. It is picked up it in the Regulation
for the Declaration of the Tax on the rent carried out by telematic means regarding the
exercise of 1998. It is the Order of the Ministry of Treasury of April 13, 1999, that
settles down the general conditions and the procedure for the telematic presentation of
declarations of the Tax on the Rent of Physical People.

        This possibility already had it, following a differente procedure to the
established in the Order, the companies in relation to the payment of taxes characteristic
of the same ones. The novelty of the declaration of the rent resides in that have been
able to carry out experiences using all the mechanisms that are necessary for the use of
an infrastructure of public key or electronic signature. This means that the Spanish
citizens have been able to execute and to make delivery of their declaration using the
electronic signature and the resources that there are included in the navigators. In the
experience as certification service has acted the National Factory of Mint 13. The
services of registration have been the offices of tributary administration.

        From a juridical perspective this decision has had as consequence that in Spain
there is a disposition of tributary character in which is regulated, with the signalled end,
the installation and use of the electronic signature. With that this norm can be taken as
precedent for its use in other examples. Of course also it serves like reference, saving
the distances, for the general regulation of the electronic signature.

  Law 66 of December 30 1997. - Artículo 81 .
  OM of April 13 1999 for which the general conditions and the procedure settle down for the telematic
presentation of declarations of the Tax on the Rent of Physical People., art. 1, paragraph 6.

       Next the essential features of the norms that regulate the establishment of the
Service of Certification of the State and the reclaración on the rent of physical people
are exposed.

       Law of Accompaniment to the Budgets of 1998

        Having the adequate precedents on regulation of cryptography, the Spanish
Cortes promulgated a regulation on the matter with respect to Public Administrations.
This regulation has to do with the Law 30/1992, of November 26, of Juridical Régime
of the Public Administrations, that we shall see later, which accepts and promotes the
use of the modern technologies for the civil servants of the Administrations and for the
citizens in its relationship with the Administrations.

       The regulation is summed up in that in execution of this Law, articles 38, 45 and
46, and by virtue of the article 81 of the Law of Accompaniment to the Budgets of
1998, the Parliament has authorized to the National Factory of Mint (FNMT) and to the
Public Mail Office to the benefit of necessary technical and administrative services to
guarantee the security, validity and effectiveness of the emission and reception of
communications and documents through technical, electronic, computer and telematic
means. The Superior Council of Informatics of the Ministry for the Public
Administrations will carry out the advice functions in the relative thing to the technical
requirements to satisfy for the National Factory in the exercise of the functions
conferred by the Law.

        This regulation is the authorization so that the FNMT is constituted as provider
of certification services, following the characteristic denominations of the cryptographic

       Order of the Ministry of Treasury of April 13 1999

       It is the Order of the Ministry of Treasury of April 13 1999 for which the general
conditions and the procedure for the telematic presentation of declarations of the Tax on
the Rent of Physical People are settled down.

       The biggest interest in this norm, to effects of the present work, resides in that it
is summed up in her and it regulates an administrative procedure adapted to the Spanish
Law for the use of the technique of electronic signature in the telematic transmission of
documents. It is promulgated for the concrete case of a procedure of tributary character:
the one constituted by the declaration of the Tax on the Rent of Physical People.

       Structurally the norm counts with: an exhibition of reasons in which takes like
reference dispositions of tributary character and those mentioned previously in this
work referred to the authorization of the use of the telematic techniques by the
Administration, seven articles in that it is regulated the declaration procedure, two
additional dispositions, a final one and three Annexes.

       To our effects it interests to highlight that the norm contains definitions and
procedures for those that show the main characteristics of the cryptography of public
key and of the infrastructure that allows its use.

       The infrastructure is constituted by the National Factory of Mint (FNMT) that
acts as certification service and the offices of the State Agency of Tributary
Administration that act as services of registration of the data of the people users' of the
system identification. There are also norms for the generation of the public and private
keys of the users, using the navigators of Netscape and Microsoft. With all that it is
possible to sign the declarations electronically. The signature can be proven because it is
possible to obtain electronically the certificate of the same emitted by the FNMT for
each user of the system.

        Although the definitions and concepts settle down in the first article of the Order
being made mention to what are the keys, the certificates, the navigators or the
consideration of the National Factory of Mint as certification service, among other
things, the technical procedures of generation and use of the signature are detailed
especially in the Annexes.

       The success obtained in this application has made that recently a Resolution of
May 3 2000 of the State Agency of the Tributary Administration has been promulgated
on expedition by telematic means of certificacioens of being to the current in the
execution of the tributary obligations or other circumstances of tributary character

       It is this one of the many examples that point out us that we are in the beginning
of a regulation that he/she specifies to be developed along the time assisting to the
principles for those that the regulation of Internet is governed..


       We make here reference of the existence of two Sentences of the Supreme
Tribunal (TS), that recognize the use of the electronic signature in the mercantile traffic.

       It is interesting to point out the fundamental content to these effects of the
Sentence of the TS of November 3 1997. It is of the Third Courtroom. The presenter of
the same was Mr. Rouanet Moscardó.

        In the juridical argument number ten, after reflecting on the content of the
Spanish regulation referred to the electronic document, the sentence estimates that: “In
consequence, although, the same as in the case of the common documents, it can have
electronic documents without signature, the electronic document (and, especially, the
electronic document with function of mercantile turn) it is firmable, in the sense that the
requirement of the autograph signature or equivalent can be substituted, for the side of
the cryptography, by means of figures, signs, codes, bars, keys or other alpha-numeric
attributes that allow to assure the origin and truthfulness of its responsibility and the
authenticity of its content.”

        These words constitute the recognition of the validity like signature of the
electronic signature that assures the authenticity and integrity of a mercantile transfer
using the digital signature like mean of protection of the document.

        Another sentence of the Supreme Tribunal of the same date that the previous,
November of 1997, 3, Third Courtroom, Presenter Mr. Sánchez, indicates the effective
legislation on electronic document in Spain and it concludes saying: “In definitive, of
this fragmentary regulation it comes the reality of admission of the document
electronic, under the condition that it is guaranteed its authenticity, and that this is
feasible, inclusive by means of the electronic signature -could be qualified figures,
codes, keys and similar procedures -, it is universally something admitted.”

       It stands out in both sentences the nonexistence of references to the certification

         3. Names

        The Order of the Ministry of Development of March 21 2000 is in charge of the
regulation on assignment of names of domain of low niveau in Internet. In concrete it is
regulated the country code corresponding to Spain (.es).

        In the Preamble of the norm it is settled down that the “organization
supranational ICANN, of recent creation, is responsible for the administration in the
world of the names and numeric addresses of Internet.” It is also mentioned that in
Spain the task of assignment of names of domain of second low level: the country code
.es, will carry out by the public entity of the Spanish Technical Net of Television
(Resolution of the General Secretary of Communications, of February 10 2000)

         The norm gives rules for the assignment of domains, rules that explains in an

       The text of the regulation establishes the corresponding structure of Agents that
will be in charge of contacting with the users and with the assignment authority (art.5)

        Of interest it is the art. 7 that establishes to the members of the network the
important coordination function with the traditional Registers: “In the assignment of
the names of domain of second low level: the country code corresponding to Spain (.es),
it will be procurated the necessary coordination with the Central Mercantile Register,
the Spanish Office of Patents and Marks and the another national and international
public registrations. This coordination will be carried out with the due velocity, using,
whenever it is possible, telematic means.”

       4. Expansion of Internet

        There are in the Spanish normative several rules dedicated at most urgent at this
time: the guarantee of the expansion of Internet. We refer here the one that is in charge
of facilitating the general access to the systems of telecommunications that allows that
companies and citizens use at low cost Internet, the one directed to protect the property
of the products that are accessed, bought and sold through the net, the one directed to
safeguard the personal data of the users of the net and the one that regulates the
established punishment for those that harm the rights implied in the use of Internet.

       Reduction of rates

       A recent norm is in charge of establishing a modification of the phone rates
directed to guarantee the access to Internet to very low fixed monthly cost. The norm
reduces:to 700 monthly pesetas (4,21 euros) the phone access to local suppliers of
access to Internet. This is for the period understood among the zero hours and the eight,
and the eighteen and the twenty-four hours, from Monday to Friday, and the whole day
Saturdays, Sundays and fiestas. This norm is obligatory for the dominant operators of
the available fixed phone service to the public from the first of November of the year

        The norm is the art. 4, 1 of the Real Decree Law 7/2000 of June 23, on urgent
measures in the sector of the telecommunications (authenticated by the Parliament by
resolution of June 29 2000)

       Intellectual property

       The normative that is in charge in Spain of the regulation of the computer
programs, in that referred to the protection of the rights of their creators, it is constituted
by the law of intellectual property. In short, the text of the law of intellectual property
promulgated for Real Decree Law of April 12 1996.

        The text has been completed by the law 5/1998 of March 6, by which it is
incorporated to the Spanish regulation the Directive of the European Parliament and of
the Council, of March of 1996, 11, on the juridical protection of the databases. This last
norm prepares its integration in the text of the law of intellectual property, at the same
time that it establishes measures for the bring up to date of this. With that the same law
of intellectual property contains in an only disposition all the previous European and
Spanish norms that regulated particular aspects referred to the protection of the rights of
the creators of computer programs.

        This regulation also includes to the multimedia works, once these, processed in
occasions by computer programs, are picked up in databases (in paper or digital
support) and they are creation works: recordings, pictures, movies, encyclopedias,
reports, books... This is, exactly, the content of the material to which Internet gives
access or that is bought or sold.. With that the one mentioned is the Spanish initial
regulation about the property of the computer programs accessed by Internet.

        The Spanish norm, next to the Directive, considers that the databases are objects
of protection, as long as the selection or disposition of their content constitute a work of
intellectual creation, characteristic of the author. This is whenever it is an original
database, and without damage of the freedom of the authors of deciding if they allow
the inclusion of their works in these bases, and without damage of the existent rights on
their content.

       Both norms consider that the term databases made reference to the summaries of
works, be literary, artistic, musical or of another type, or of such matters as images,
sounds, figures and data, whenever they are summaries of works, of data or other
independent elements prepared individually in systematic or methodical and accessible

        The norms besides protecting the royalties regarding the originality of the
selection and the content of the database, seek to protect the maker against the
appropriation of the obtained results of the economic investments and of work made by
who looked for and it gathered the content and it is considered that the object of the
right is to guarantee the protection of the investment in the obtaining, verification or
presentation of the content of a database and it implies the right to not impede the
authorized extraction or total or partial reuse. This is because the norm understands that
the use is every time bigger. The norm understands that the digital technology exposes
the maker of a database to that the content of the same one is copied and reordered
electronically, without authorization, with the purpose of creating a database of identical
content but that it would not infringe the royalties regarding the ordination of the
original base

       Regarding the right of distribution, it is pointed out that, contrary to the
commercialization or setting to disposition of the public off line, if this is on line it is
not drained and each on-line benefit is an act that will require authorization if it is
foreseen in the royalty.

        The norm and the Directive contain some exceptions to the protection and
regulate the terms during those that seeks protection the maker's right, in general of 15
years since the conclusion or the put to the public's disposition.
        Personal data protection

       Organic law

       The Organic Law 15/1999 of December 13 of protection of data of personal
character, has for object to guarantee and to protect, concerning the treatment of the
personal data, the public freedoms and the fundamental rights of physical people, and
especially of their honor and personal and family privacy (art. 1). The norm is of
singular importance for the weakness of the juridical and technical position in that the
users of Internet meet with regard to the use of their personal data for companies of
electronic commerce with those that enter in contact.

       Their territorial environment of application is the following one (art. 2, 1):

        “a)... the treatment... made in Spanish territory in the mark of the activities of an
establishment responsible for the treatment.

        b) When the responsible for the treatment is not settled down in Spanish
territory, it will be of application the Spanish legislation in application of norms of
International Public Law.

        c) When the responsible for the treatment is not established in territory of the
European Union and the use of the means of treatment of data is located in Spanish
territory, unless such means are only used with traffic ends “

        It is problematic the topic of the transactions of electronic information with third
countries not linked by the European normative. Specially serious it is the problem of
the communications with the United States, that has a very permissive legislation and,
with the calls “computer paradises": countries and territories without restrictions in the
use of the information -..

       The art. 15 of the Real Decree Law 14/99 of 17/9/99 on electronic signature is
remitted to the regulation of Data Protection in that referred to: the performance of the
suppliers of certification services, that of the organ that, in the exercise of their
functions, supervises the performance of the suppliers of certification services (Ministry
of Development) and that of the competent organ as regards accreditation of the same
ones (Ministry of Justice).

       Decret of June 11 1999

       In relation with personal data protection is the Decret 994/1999 of June 11. This
norm establishes the regulation of measures of security of the automated files which
contain personal data.

        This regulation is also in charge of the security of the communications carried
out via telematics of the automated files that contain data of personal character. In short
the art. 26 settle down that the transmission of data of personal character through
networks of telecommunications will be carried out ciphering this data or using any
other mechanism that guarantees that the information is not intelligible or manipulated
by third. This norm demands that the transmission of personal data is ciphered using the
signature techniques and the cryptographic techniques of confidentiality

       Penal code

        There are picked up some criminal modalities related with use of computer
networks in the Spanish Penal Code of 1995. There are here also anothers in those that
the commission of a traditional criminal figure is contemplated using the net or bound
to the new technologies:

       Among the crimes against the privacy, the code stipulates the interception of the
electronic mail, art.197.1. This criminal figure is assimilated to the violation of
correspondence, when the conducive activities are carried out it without consent of the
one affected and with the intention to discover their secrets and to harm their privacy.

        There are also regulated the acts consistent in seizing, to modify, to reveal, to
diffuse or to give reserved data of personal character that are registered in files or
computer, electronic, or telematic supports. In this way the art. 197.2 picks up the
figure of the usurpation and surrender of reserved data of personal character.

         It is regulated in the art. 248.2 the electronic swindles, consistent in the
computer manipulation or similar artifice that, converging spirit of lucre, get a non
spoilt transfer of any type of active patrimony..

       The computer damages are contemplated in the art. 264.2 that regulates the
destruction, alteration, inutilización or any other modality for which data programs or
documents of electronic contents are damaged in nets, supports or computer systems.

        The art. 270 regules the crimes against the intellectual property originating in the
webs and the accessible databases for Internet. The article includes, in the category of
the crimes against the intellectual property, the production, setting in circulation and
holding of any means specifically dedicated to facilitate the not authorized suppression
or the neutralization of any technical device used to protect a computer program.

       The diffusion and exhibition of pornographic material to smaller, it is picked up
in the art. 186. It can be made by any means and therefore it would embrace the
electronic mail, a specific Web or a database without protecting appropriately.

        The infantile pornography is regulated in the art. 189. It supposes the use of a
minor with exhibicionist or pornographic ends. This is also a crime that can be carried
out through the net.

        The diffusion of injurious or calumnious messages is regulated in the art. 211. It
indicates that the slanders will be reputed made with publicity if means of effectiveness
diffusion similar to the printing or the broadcasting are used. It supposes that it would
be reputed this way if it was carried out through Internet, although it would be
necessary to tinge the solidary civil responsibility of the proprietor of the informative
means through which spreads, given the volume of information that contains a server
and the regulation absence as for the obligation of controlling it.

       Another precepts of the Penal Code that would be applicable to crimes made
through Internet would be those that regulate:

        --the deceiving publicity of the art.282,
        --the robbery of the art.239 that it considers false keys the magnetic or
perforated cards, as well as the controls or opening instruments to distance, the
discovery of keys or the opening of specific systems of alarm,
        --the revelation of secrets of the art. 278 that it includes written documents or
        --the documental falsehoods in the arts. 390 and next, in relationship with the
definition of document of the art. 26, as all material support that expresses or
incorporate data, facts, narrations with probatory effectiveness and any other type of
juridical relevance,
        --the art.400 that introduces the crime consistent in the production or holding of
useful, materials, instruments, computer programs or apparatuses dedicated specifically
to the commission of crimes, or
        --the art. 256 that regulates the use of communication terminals without consent
of the holder, when damages are caused.


         As we told at the beginning of this paper the existent Spanish regulation is not
only centered in Internet: for years it also exists a regulation on the use of the
telecommunications for the organization of the State that is of application for the use of
Internet, even when in the moment of their promulgation it was not Internet still a

      Favorable measures have also been promulgated to their installation in the
Administration of Justice and the General Administration of the State

       Next it is presented the content of the pointed out norms shortly.

       1. Administration of Justice

       Judicial Power

       In the Organic Law of the Judicial Power, reforms of November 8, 1994, art.
230 are regulated the following:

        1. The norm settles down that the Judges and Tribunals will be able to use any
technical, electronic, computer and telematic means, for the development of their
activity and the exercise of their functions

        2. It is prescribed that the documents emitted by the previous means, whichever
it is their support, will enjoy the validity and effectiveness of an original document
whenever it is guaranteed their authenticity, integrity and the execution of the
procedural requirements.

        3. It is indicated that the procedures that are processed with support of computer
means will guarantee the identification and the exercise of the jurisdictional function...
as well as the confidentiality, privacy and security of the data of personal character.

        4. It is indicated that people that demand the judicial protection of their rights
and interests will be able to be related with the Administration of Justice through the
same technical means that Judges and Tribunals use, when they are compatible with
those and there are guarantees and fullfillment of the requirements foreseen in the
judicial procedure.

       Different norms, dictated by the General Council of the Judicial Power in
execution of the delegation that makes him the Organic Law (art. 230, paragraph 5),
have facilitated the concretion of the regulation pointed out in that referred to the use of
the computer techniques by Judges, Tribunals, Secretaries and officials that work in the
Administration of Justice.

         In concretion of the exposed regulation, July 19 1999 have been signed a
Protocol of collaboration between the General Council of the Judicial Power and the
General Council of the Procurators from Spain in order to the installation of the
telematic communication among the Procurators of the Tribunals of Zaragoza. In this
Protocol it is settle down the juridical mark for the telematic transmission of
notifications and writings between the Procurators of the Tribunals and the Judges and
Tribunals, initially of Zaragoza after all Spain. The norm establishes also the
endowment of means and enough resources for the setting in action of the project. With
it, it is facilitated the use of the module of signed transmission and ciphered of
notifications and writings among Tribunals and Procurators that it is incorporate to the
application denominated Libra, application developed by the Ministry of Justice for the
computer administration of the procedures processed in all the Spanish Judges and

        In the judicial environment lack to sum up the regulation measures that articulate
the installation of the use of the ciphered of public key and their corresponding
infrastructure in the Administration of Justice.

       Instruction of 29.10.96, of the General Direction of the Registers

        It is a fact the uses of the new technologies by the Registers of the Property and
of the Commercial Societies. The instruction of 29.10.96: 1) regulates these
possibilities, 2) develops new actions and expansions, 3) gives norms for the
centralization of the systems and 4) stipulates also the technical instruments for the
communications between Registers and these and the central Register via fax and e-
mail. There are not security measures, only generic references to the data protection.

       There are many possibilities for the Notaries to use the new media. For example
the General Register of Testaments is on computer support by norm of 13.11.92. There
are previsions for the telematic communications of the Notaries with the General
Register (Reglament of 2.12.92). There are not concrete security measures.

        2. Public Administrations

        Law on Juridical Régime of the Public Administrations

        It is the Law 30/1992 of November 26, modified in 199914. Fundamentally here
there are two articles of interest: the 38, regulation of the reformation of 1999, and the
art. 45 of the Law (version 1992) that tries on the incorporation of technical means.

        The first establishes that the registrations of the Public Administrations will
settle in computer support. It is also said that the Public Administrations will have
intercommunication systems and coordination of registrations that guarantee their
computer compatibility, as well as the telematic transmission of the seats registers them
and of the applications, writings, communications and documents that are presented in
anyone of the registrations.

        The incorporation of technical means was already foreseen in the first version of
the art. 45 of the Law that foresaw the use of technical, electronic, computer and
telematic means for the Public Administrations, as well as that the citizens will be able
to use them in relationships with the same ones.

        In any event it is prescribed by the law that the use of this technical means will
guarantee the identification of the users and receivers of documents and that the
documents generated by these means will enjoy validity... whenever it is guaranteed
their authenticity, integrity and conservation

        Decret of 16 February of 1996

       The norm regulates the use of electronic, computer and telematic techniques for
the General Administration of the State15.

       This Decret gives norms for the application of the law of the Public
Administrations of 1992 in connection with the use of electronic, information and
telematic techniques.

   It is the Law 30/1992 of 26 November, of Juridical Régime of the Public Administrations and of the
Common Administrative Procedure. It is modified by the Law 4/1999 of January 13 1999.
   Real Decret 263/1996 of February 16 1996

        The Decret specifies: the General dispositions (Object of the norm, the citizens'
rights and limitations, Definitions, and General Guarantees for the use of electronic,
computer, communication and telematic means and applications in the Public
Administrations). Requirements for the use of electronic, computer, communication and
telematic means and applications (Applications to be authorized, Emission of
Documents and Copies, Communications for means elec., inform. and telem. and
applications, Storage of documents). Administrative action (Approval and publications
of the applications, Publication of the applications, Approval).

        The Decret doesn't establish rules directly for the Registrations, the institutions
of trust. It has been corrected with the reformation of 1999 of the Law of the Public
Administrations (art. 38). Neither it regulates to the certification services or the digital
signatures. There are generic references to security. The norm gives technical and
organizational rules about authenticity, confidentiality, integrity, readiness and
conservation of the information to satisfy for the instruments, media and applications.
These notes are the characteristics of the sure electronic documents. The norm specifies
that these rules should be adapted to the technology, the nature of the data and their


        Besides the legislative panorama presented there are numerous initiatives that
seek to put it in action. We consider here three of them of special relevance.

           1. FESTE

        Starting from the elaboration of the AEQUITAS Report, an European project16,
an institution was born: the Foundation for the Study of the Security of the
Telecommunications (FESTE). FESTE is the institution, in form of Foundation that is
made with altruistic character, constituted by Notaries (the General Council), Lawyers
(the General Council), University (Zaragoza) and a Company (PSINet), dedicated to the
investigation on the matter17.

     See: http://www.cordis.lu/infosec/src/study11.htm
     See: http://www.feste.com

        The art. 6 of the Statutes of the Foundation expose that the object of the same
one is the following: "the development of all type of scientific and cultural activities
that contribute, with disinterested character and without spirit of lucre, to the following
purposes of general interest: 1. To foment and to contribute to the realization of studies
and projects directed to the present and future designs of the instruments of juridical
security in development of the new technologies, as soon as generating of new
communication supports. - 2. The experimentation and popularization of the
conclusions and developments. - 3. To collaborate in the design of a legal mark to
certify the electronic transactions among the industry, the trade, the banking, the clients
and the administration". The act of constitution of the Foundation took place in the
Faculty of Law of the University of Zaragoza November 21 1997.

        From an universitary perspective FESTE is an institution that has for object to
introduce traditional jurists in the reflexive use of the new technologies in its daily
work. The particularity of the action resides in that members of the Foundation are the
notaries, jurists that exercise the function, previous to the State of Law, of giving faith
before third of the characteristics of people or of facts happened in its presence. This is
the same thing that to say that these professionals exercise from immemorial time the
function of being supplying of certification services with the following particularity.
They are forced, for the State of Law, to advise the citizens that require it with regard to
the reach of their rights and the consequences of their acts before carrying out an action
that has juridical consequences. This means that the Foundation FESTE has as central
object of its work to integrate the technological change in the professional practices of
the notaries, intending that these practices are suitable to the social change that is taking
place by means of the expansion of Internet. With that a dogmatic science is here no
longer built only with elements coming from the technological development, in this case
the theoretical concepts are applied in the juridical life constituted by the application of
the norms by agents like the notaries.

        As soon as investigation, FESTE gives advice to Notaries and Lawyers in what
concerns to its imperium of being constituted as registration institutions and
certification of people's public keys that cipher its electronic communications and
require its services. Consequence of this action is the constitution of FESTE like
provider of services of certification of the electronic communications, and the notaries
like entities of registration of the same one. All that which implies to transform juridical
agents in spokesmen of the technological renovation.

        FESTE supplies services of certification of people's public keys and services of
certification of web servers certified for public keys: sure webs18.

     To see: http://www.feste.com /

           2. Aequitas Procuradores

        The program AEQUITAS Procuradores puts the investigation AEQUITAS and
the dogmatic renovation in the Tribunals. It is the construction of a telematic system
that allows the sure transmission of notifications between Judges and Procurators. It is
built by the company PSINet, with advice of the University of Zaragoza, for
responsibility of the General Council of the Procurators of the Tribunals of Spain from
April of 199819.

         As program (software application) it has for object the construction of a
telematic system that allows the realization of notifications among Tribunals,
Procurators and other institutions of administrative character, using sure systems of
transmission of the telecommunications (electronic signature and cryptography of
confidentiality). Initially a prototype has been developed. The prototype will work in
the Tribunals of Civil Law of Zaragoza. With posteriority the system will be implanted
in all the Spanish Tribunals.

        It was developed also the program that allows the integration of the system with
LIBRA that is the program used in the procedure of all Spanish Tribunals. It is
developed in this moment the system of transmission of notifications and the service of
certification of the electronic communications of the General Council of the Procurators
of the Tribunals of Spain.

        The system is working. It doesn't fit doubt that the initial operation of the system
is limited: especially it puts in action the mechanisms of cryptography of signature and
confidentiality. Of course the program cohabits fully with the practices settled down by
the law for the procedures, but in the case in the one that their setting is used in action
implies that the program, the nets of telecommunications and the techniques of security
of these last ones constitute basic elements of the civil procedure. The last is a very
important change. Immediately the program will move to the Tribunals where the initial
test and installation will be carried out.

        The program was designed and programmed without, as it was the case in
AEQUITAS, laws that regulated the activity to carry out existed. It was unavoidable for
this realization to study the characteristics of the judicial process, the representation of
the same in standard format and, the most important thing, the elaboration of a
computer system in the same form that has the program that uses the Ministry of Justice
like infrastructure for the judicial activities of procedural character.

        With this the result is that the work began exactly with the construction of a
program that facilitates the integration in the computer system LIBRA of the Ministry
that is located in all the Spanish Tribunals, of the system AEQUITAS
PROCURADORES dedicated to the telematic transmission of notifications. All these
developments also had the hypothesis of the possible future installation of the providers
of certification services precise so that the system works. Those suppliers are: the
General Council of Procurators, the General Council of the Judicial Power and the
Ministry of Justice.

     There are periodically news on the state of the program in: http://www.cgpe.es/

       Starting from this moment it became necessary the creation of the corresponding
norms that energized the process and allowed their progressive installation..

        The promulgation of the Real Decree Law of Electronic Signature (September
17 1999) and the Law of Civil Procedure (Law 1/2000 of January 7, arts. 162, 154 and
163) that contemplate as possible alternative to the systems of usual communications
the telematic transmission of notifications, it has converted, finally, to the hypothesis in

        As in the case of FESTE the program AEQUITAS Procuradores has allowed
juridical agents to transform (Procurators, Judges, Personal of the Administration of
Justice, Lawyers) in spokesmen of the technological renovation. We have seen as after
the initial proposals of theoretical type, the laws have been promulgated. These laws
prescribe the setting in practice of the renovation in the action of the juridical agents.

           3. AGACE

       After the constitution of the Association, of non lucrative character, for the
Promotion of the Technologies of the Information and the Electronic Trade
(APTICE)20, she has created as first activity the Agency for the Guarantee of the
Electronic Trade (AGACE). The Agency is a stamp of quality of the companies and
consumers of Electronic Commerce. It assures to the society in general and very
especially to companies and users the following thing:

        1. The certification of the companies salespersons by means of the establishment
of a stamp of quality for the companies

           2. The inspection of the certified companies.

           3. The pursuit of the incidences in the operations.

           4. The development of the trust of the buyers.

       5. The dation of faith, to requirement of legitimates part, of the moment in the
one that the transactions happened between salespersons and buyers have happened

        6. The establishment of arbitration procedures for the resolution of conflicts
arisen in the practice of the electronic trade.

       7. The establishment of appropriate standards for the cycle of telematic

           8. The promotion of technical standards for the expansion of the electronic trade

           9.The construction of self-regulation codes for those who accept the Agency.

           The Agency is in installation phase.
     See: http://www.aptice.org

       As we have seen here there is in Spain an initial regulation on the phenomenon
Internet. This regulation pay attention to the main juridical and technical difficulties that
has the setting in action of this mechanism. It is in charge of it the legislation on
electronic signature and names. There is also, to the effect, regulation on the property of
the programs and on the protection of personal data. There are regulation and
experiences that allow the judicial institutions and civil servants to collaborate in the
expansion of Internet, avoiding with it the difficulties that it could impose to the same a
general regulation approved without keeping in mind the phenomenon. There is, also,
normative directed to promote the use of Internet for the whole society, reducing the
problem of costs. The problem is that the legislation will be useless if that, that the same
supposes, doesn't take place: the widespread use of Internet by citizens and companies.
When this takes place it will be necessary without a doubt a new legislation whose
contained we still are not able to foresee.


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