Implementation of the digital signature in State entities
In Bolivia, the regulation that grants legal validity to the digital signature was incorporated in 2011 through the promulgation of the Telecommunications Law, Law No. 164 dated August 8th, 2011 (“Telecommunications Law”). However, most public and private entities have not incorporated the use of the digital signature in their regular activities. The digitization of communications has become more important in recent weeks as a result of the restrictions imposed by the COVID-19 pandemic. In this way, numerous inquiries have been generated about the implementation of the digital signature in different public and private entities. Therefore, it is important to comment on some issues regarding the use of digital signature and the ways that it can be used in Bolivia.
I. Digital signature and evidentiary validity.
The digital signature, unlike a traditional signature (holographic), consists in the application of cryptographic mechanisms to the content of a message or document in order to demonstrate to the recipient of the message the following:
- Authentication.Verify the identity of the issuer of a document;
- Integrity.Check that the document has not been altered since its issuance; and
- No repudiation.The documents cannot be denied in their authorship and content.
Consequently, when a digital signature is registered on a digital document or electronic data message, the will of the holder of the digital signature is presumed to prove the content of that information.
The Telecommunications Law establishes the following conditions for the evidentiary validity of the digital signature:
i) the digital signature must be individual, linked and controlled exclusively by its holder;
ii) the authentication and security procedures must allow the verification, authorship and identification of the document;
iii) the method of creation and verification must be reliable, secure and unalterable;
iv) the creation data must be under the sole control of the signatory; and
v) the digital certificate must be valid.
These characteristics differentiate the digital signature from the electronic signature, as the electronic signature does not have a digital certificate and an official registry, which guarantees the integrity and authorship of the document. Consequently, the law does not attribute the same evidentiary effects to the electronic signature as it does to the digital signature, with the exception of the use of the electronic signature in financial transactions, as we will explain in the section III. 2 of this article.
II. Digital certificate and authorized entities
The Telecommunications Law establishes that the digital signature is linked to a digital certificate that allows to validate the authenticity and integrity of a message, software or digital document. The Digital Certificate is issued by an entity authorized by the Telecommunications and Transport Regulation and Control Authority (“ATT” in Spanish).
Digital certificates, in Bolivia, can be issued by the following entities:
- Issuance by public entities:The Agency for the Development of the Information Society in Bolivia (“ADSIB” in Spanish) is the only public certifying entity in charge of providing the digital certification service for the public and private sector in Bolivia.
- Issuance by private entities:The company DIGICERT SRL has the authorization of the ATT, to issue the digital signature to companies and individuals.
- Issuance by foreign entities:Digital certificates issued by foreign certifying entities must be approved by a national certifying entity so that they have legal validity in Bolivian territory.
It is important to point out that the national regulations expressly recognize the right of the holder of the digital certificate to the confidentiality of the information provided to the certifying entity and the right to enforce their acceptance or opposition to the transfer of the data contained in their certificate to another certifying entity.
III. Implementation of the digital signature in State entities.
Bolivian legislation allows individuals and companies to sign all types of contracts or documents by electronic and digital means, incorporating the digital signature in these, with the exception of the following:
i) family law acts such as the signing of a regulatory divorce agreement or inventories by the guardians;
ii) the acts in which the law requires the physical presence of the parties, such is the case of signing notarized instruments in the presence of a Notary Public; and
iii) acts that require by law, or express agreement of parties, the subscription of a physical document for its validity or the production of certain effects, this is the case of certain share registry books, checks or promissory notes.
In the case of processes in State entities, some institutions have begun to develop virtual processes, in which the presentation of documents with digital signatures is supported in order that both individuals and companies can meet the requirements requested in some procedures, as explained below:
- Bolivian Customs (“Aduana Nacional” in Spanish).
The Bolivian Customs through the Board Resolution No. RD 01-030-18 dated December 13th, 2018, approved the Regulation for the use of the Digital Signature. This norm establishes that the holder of a digital signature that must carry out some procedure before the National Customs Office or its regional offices, must only register their digital signature before this institution and will immediately be able to present merchandise declarations, cargo manifests and other digital documents generated by, or exchanged with, the Bolivian Customs.
- Financial System Supervisory Authority ("ASFI" in Spanish).
In 2017, ASFI approved the Regulation for the use of the digital signature through Administrative Resolution No. ASFI / 145/2017 dated July 20, 2017. This regulation limited the use of the digital signature in the ASFI modules and/or information systems that generate digital documents with the express authorization of the Executive General Directorate.
However, Supreme Decree No. 4200 dated March 25th, 2020, which aims to implement the measures against COVID-19, has expanded the ASFI regulations, allowing banks and users to use the electronic signature as alternative means to digital signature in all financial transactions, the signing of financial contracts, checking accounts, contracting of credits and remote purchase.
- Registry of Commerce (administered by “Fundempresa” in Spanish).
The new Manual of Procedures of the Bolivian Trade Registry, approved by Ministerial Resolution MDPyEP No. 0072/2020 dated April 13th, 2020, has implemented the virtual modality for the processes referred to the constitution of new companies, business restructuring, activities of modification, registration of resolutions, issuance of bonds, dissolution, liquidation of companies or closure of branches and certification of registered documents.
In this way, the use of the digital or electronic signature is authorized for the subscription of all the corporate documents that emerge from meetings, assemblies or any instance of deliberation of the company. For the presentation of these digital documents before the Registry of Commerce (administered by Fundempresa), the only requirement is the digital signature of the Legal Representative of the company.
Therefore, the Procedures Manual implicitly allows partners or directors to simply consign electronic signatures in the corporate documents presented before the Registry of Commerce.
Finally, the presentation of public documents such as the Public Deed of Incorporation or the Power of Attorney of the legal representative is authorized, in PDF format and with the digital signature of the Public Notary, which must comply with the requirements established in the Administrative Resolution DIRNOPLU N ° 121/2019 dated August 23th, 2019.
April 24th, 2020
- Apr 29, 2020
- by Rosario Echeverria