MiFirma starts collecting endorsements in defiance of Instruction from the Central Electoral Board [N20]

Since MiFirma official launch in May, the platform has been growing in functionality, members and, most of all, ambition.

Today MiFirma faces their first real life test. A coming of age that has been quite bumpy, subject to pressures from all sides, hard to get and withheld information, seemingly impossible deadlines, controversy, but, at the same time, lots of excitement, determination and activism “of the good kind”.

As of today MiFirma starts collecting endorsements by electronic signature for minority political parties wanting to take part in the Spanish election on N20.

And they will do so in defiance of the Instruction on technical requirements issued by the Central Electoral Board (CEB). This post explains the reason for such decision.

Majority parties: Changes to the Organic Law on the General Electoral Regime

In January, 2011, the Organic Law on the General Electoral Regime (OLGER) was changed with the support of the PP, PSOE, CIU and PNV political parties. This change set a new requirement for a political party to take part in an election: new parties (those that had not won a single seat in the previous election or those newly created) have to collect endorsements (signatures) from 0.1% of the electorate on those districts they want to run for. The change went unnoticed at first, but as the economic situation deteriorated and the elections drew closer, more and more people started to worry about the new requirement and its implications. Minority parties had to collect thousands of signatures in a 20 day period, beginning with the official election call.

On the one side, PP and PSOE proclaimed that the measure served to show that a minority party had sufficient endorsement to participate. On the other side, minority parties said that this was a PP and PSOE ploy to favor a two party system and to make entry harder for new political groups, ideas and new ways of doing things. The polemic was served.

Collecting thousands of signatures in 20 days is no easy task if you are a nascent political party. On top of that, the cost and effort of the signature collection pre-campaign adds work and costs to the political party campaign proper. Faced with the sheer size of the looming task, several political parties started addressing MiFirma asking whether it would be possible to use their platform to collect endorsements for the N20 election, instead of for Citizens Initiatives (CI) as was MiFirma original plan. The idea was welcomed and MiFirma set to work to prepare for collecting endorsements.

However, there was a big problem: the lack of necessary information made progress on several front impossible. Despite the fact that the Electoral law has been changes in January, there were no additional regulations specifying how the endorsements were to be collected. The minority parties complained of being left in the dark as to what data and how had to be collected from each endorser, whether a copy of their DNI had to be collected or not, whether electronic would be allowed or not, etc. Without this information progressing in the development of a number of parts of the platform was impossible.

Minority parties: an obstacle race

On July 29^th, president José Luis Rodríguez Zapatero announced an early election for November 20^th. The minority political parties asked repeatedly the CEB for their pronouncement and for concrete information on how the endorsements had to be collected. The CEB informed the parties that they would meet after the summer to agree on and communicate the details about the collection of endorsements. Minority parties (and MiFirma) resignedly waited fully aware that, once the election was officially called, they would have only 20 days to collect thousands of endorsements whose final content and collection procedure were still unknown.

On August 18^th, with the purpose of advancing as much as possible while waiting for the CEB information, the Catalonia Pirates Party created the YoAvalo.org platform, and invited the other minority parties to join. YoAvalo.org was a webpage that informed citizens of the new requirements for collecting endorsements, of the difficulties of collecting the signatures in such a short period, of the lack of information and offered a tool where interested citizens could leave their email to be notified when the endorsement collection period began. The strategy was clear: given that it was not possible yet to collect endorsements, they would try to create a data base where people interested in endorsing could give their data beforehand. This way, as soon as the endorsement collection period started, the minority parties could send all those interested an email soliciting their formal endorsement.

On September 15^th, the CEB finally published an Instruction establishing the requirements for each endorsement and allowed the use of electronic signatures while admitting that “The imposition of these requirements demands from the Electoral Administration that they clarify those details of the procedure for collecting and validating the signatures that are not fully specified in the current legislation”. The Addendum to the CEB Instruction set out the technical requirements that the electronically signed endorsements had to meet. There were 66 days remaining till election day.

On September 26^th, president Zapatero officially called the general election for N20. The 20 day period for minority political parties to collect endorsements and gain, under the new legislation, their right to take part in the election had started. They had all of 6 working days to adapt to the technical requirements laid out in the CEB Addendum to collect endorsements by electronic signature. Not being capable to adapt their systems in that short time, they begun collecting signatures on paper, not without some difficulties, hoping to have the adaptations needed ready with some time left to be able to collect electronic endorsements also. There were 55 days left before election day.

On October 16^th, the period for minority parties to collect endorsements, both with and without electronic signatures will come to an end. Only then, after the signature collection and presentation marathon, minority political parties will be able to concentrate 100% on their election campaign proper. There will be 35 days left before going to the polling station.

MiFirma reinforces its development team

Since its creation, the MiFirma platform has never ceased to reinforce itself and grow in the number of its collaborators. MiFirma development is divided in two parts: “MiFirma Platform”, a web service for collecting signatures accessible through mifirma.com, and “MiFirma Community”, the code base on which the mifirma.com platforms runs. Faced with the situation described above and the requests from minority political parties, the MiFirma decides to merge all developers into a single team and concentrate all efforts on the adaptations needed in the “MiFirma Platform” to collect the endorsements and to postpone all work related to making the “MiFirma Community” code open.

MiFirma reinforces its legal team

In September MiFirma announced that 4 true experts in new technology law, administrative law and electronic signatures had joined its team:

• Javier Prenafeta, lawyer expert in information and communication technologies.
• Julián Valero, professor of Administrative Law at the University of Murcia and promoter of  “Río de firmas”, the first CI for which the CEB accepted electronic signatures.
• Samuel Tejado, lawyer and Legal Counsel to the ADIF Board and General Secretariat.
• Nacho Alamillo, well known expert in electronic signatures, worked in the creation of CatCert (the Catalonian Certification Agency), Cesicat, and in drafting of the world wide electronic signature standards.

Working in step with the development team, the recently beefed up legal team decided to concentrate on getting the CEB to accept the use of Tractis and electronic signatures for endorsement collection and they set down to work on it. The reasoning being that “certifying” the MiFirma front-end was not worth the effort, but rather the Tractis back-end. Once the CEB admitted the validity of signatures in Tractis, this “CEB blessing” would cascade down not just to MiFirma but also to:

1. Any other platform for collecting signatures running on the “MiFirma Community” code, once this becomes open.
2. Any other platform for political initiatives built on the Tractis back-end.

First submission: To the Madrid Provincial Electoral Board

On August 11^th, MiFirma files its first brief with the Madrid Provincial Electoral Board (MPEB). In this document they inform MPEB that Tractis is a Certification Services Provider registered with Ministry for Industry in all the categories it operates (signature validation, time stamps and preservation of long dated electronic evidences), they include the relevant technical information about the platform, and they request from the MPEB that:

With utmost urgency and, in any case, with time enough for us to collect the signatures in due and timely form, you, the Madrid Provincial Electoral Board, declare that the system employed by Tractis to collect electronic signatures to the aforementioned ends (endorsements) is as provided by the Law.

Dated September 28^th the MPEB responds to MiFirma. Instead of answering to the request that they audit and validate the Tractis platform, all MPEB did was to copy-paste in their reply the CEB Instruction taken from the BOE (see attached). You can download the MPEB response to MiFirma here.

Second submission: To the Central Electoral Board

According to the Law on Electronic Signatures, signatures produced on Tractis are “recognizes electronic signatures” and, therefore, the equivalent of hand written signatures. According to the CEB, they are not. In theory, yes. In practice, no.

Why is that?

In the Addendum to their Instruction of September 15^th the CEB, of its own accord, limit the formats and technical profiles of electronic signatures accepted. More precisely, they impose the use of the XAdES format “enveloped” in format (embedded in an XML document). Whereas Tractis uses signatures in the XAdES format in “internally detached“ format. Without going into details, XAdES signatures or “XML Advanced Electronic Signatures” support different profiles and formats: “enveloping” (when the signature contains the document), “enveloped” (when the document contains the signature), “internally detached” (when the document and the signature do have a parent-son relationship, but are equal rank “siblings” within the document) and “detached” (when the signed document and the signature reside in separate containers)

It is important to point out that all these formats are equally valid. All of them produce recognized electronic signatures in agreement with Spanish and European electronic signature legislation. Nevertheless, the CEB has decided –unwarrantedly, in our opinion- that the only valid endorsement are those collected under one of the formats. This decision is particularly grave taking into account that if was communicated only 6 working days prior to the beginning of the endorsement collection period, leaving practically no time for parties and platforms to adapt.

Can they do that?

We believe they cannot.

Article 4.1 and 4.2 of Law 59/2003 on Electronic Signatures, of September 19^th, states:

In order to safeguard due procedural guarantees, Public Administration bodies shall be able to set additional conditions to the use of electronic signatures in procedures. (Such additional conditions) shall be objective, proportionate, transparent and non discriminatory and in no case shall hinder the delivery of certification services to citizens when one or more bodies from the national Public Administration or belonging the European Economic Space intervene.

We believe that there is no objective and publicly understandable justification for the decision. At least, the CEB did not justify it in their Instruction.

Law 11/2007 and its implementation regulations have laid out the conditions for which a citizen to interrelate with the Public Administration, both in the Royal Decree 4/2010, of January 8^th, whereby the National Scheme for Interoperability (NSI) is approved, and in the Technical Interoperability Standards (TIS) developing its implementation in the matter of electronic signatures, approved by Resolution of the State Secretariat for Public Administration, of July 19^th (BOE of July 30^th). Specifically the NSI states in its Motivation Preamble:

…the Royal Decree 4/2010, of January 8^th, regulating the National Interoperability Scheme in the realm of the Public Administration sets out, in its first additional provision, specifies the set of Technical Interoperability Standards that are to be compulsory observed by Public Administration bodies. And that the objective of the NSI is: ”the creation of the necessary conditions for guaranteeing am adequate level of technical, semantical and organizational interoperability among systems and applications used by the Public Administration, allowing the exercise of rights and the fulfillment of obligations through electronic access to public services“.

Paragraph 1.2 of the NSI states that that the content of the TIS shall be applicable to all certificate based electronic signature developments or policies adopted by any Public Administration. In other words, the requirements for the use of electronic signatures are contained in the TIS, thus making superfluous for the CEB to redefine them in their Instruction. In fact, were an Administration body to set specific requirements, these would have to necessarily comply with the TIS, doing otherwise would mean a violation of citizens rights. Just what the CEB did with their Instruction.

What are the standards on formats and profiles laid out in the TIS as mandatory for all Public Administration bodies? 5 types in total (not only the 1 the CEB require), and they are listed in sections III.4.2 and III.4.4.a. Among them, XAdES signatures under technical specification ETSI TS 101 903, version 1.3.2, in “internally detached“ document format, that is, those used by Tractis.

The Technical Interoperability Standard established for Public Administration, and legally binding for them, includes the format used by Tractis. And yet, the CEB says in their Instruction that they do not allow it.

What can we do?

We asked ourselves the question. There were two options:

1. Shut up and go along with the limitations, that we thought unjustified;
2. Speak up and defend our arguments, that we believed solid.

Although we could have implemented the system required by the CEB, we opted for the second option. For a number of reasons:

1. Implementing the system required by the CEB in the record time of 6 working days given by their Instruction, but that would entail forfeiting the support in Tractis of the DNIe APDU commands , the ones that allow signing without the need to install the DNIe drivers. Forcing citizens to install the DNIe drivers would increase their frustration, their calls for support, and a drastically reduce the number of signatures collected.
2. Accepting the CEB restrictions would leave citizens and minority political parties defenseless and set a precedent that would weigh down heavily on future political initiatives using electronic signatures.

On Friday, September 30^th, we filed a brief with the CEB expounding the above arguments. We believe that our document is well reasoned and presents strong arguments. Judge by yourself. You can download the document MiFirma sent to the CEB here.

Collection of endorsements in defiance of the Instruction from the Central electoral Board

With no reply from the CEB forthcoming and not being able to wait any longer (there were just 11 days to the end of the endorsement collection period), MiFirma spoke with several small political parties and together decided to start collecting as of today endorsements by electronic signature in defiance of the unjust restrictions imposed by the CEB. It is our intention to submit all the signatures collected by MiFirma to the CEB and see if they decide to reject them despite being “recognized electronic signatures”. Should this be the case, in collaboration with a number of political parties, we would file a brief opposing the CEB Instruction as patently detrimental to citizens’ options and to the success of small political parties, not only for this particular political event but also for other in the future.

It is not for a politically neutral platform such as MiFirma to make pronouncements on whether the way the matter has been handled or the timeframes set were appropriate; nor to elaborate on their effect on the probabilities of success of small political organizations in the coming election. We leave that to the concerned parties, and that belongs in some other forums. Having said that, we do believe that it behooves all those that collaborated with MiFirma to show our disagreement with the technical requirements set by the CEB for the collection of endorsements by electronic signature, with the timeframes accorded to meet them, and with the precedent these restrictions might establish going forward.

Limiting the presentation of endorsements to a single syntactic type of electronic signature among all those accepted in the NIS without sufficient justification is, in our opinion, a non objective condition completely out of proportion, lacking any reasonable explanation and, finally, clearly discriminatory. More so when taking into account that the verification systems implemented by the Public Administration and, more precisely, @firma from the Ministry for Territorial Policy and Public Administration, can validate XAdES internally detached signatures. The CEB is not accepting some technical formats and profiles because they cannot validate them, but because they decided not to do so. Without any explanation or justification. No matter how much you ask for them.

DNIe and other electronic certificates are a very powerful tool (fearsome) in the relationship of common citizens with the Public Administration. They should not start life handicapped from square one. That would be a dangerous precedent set for future use of electronic signatures for political initiatives. Your endorsement on MiFirma today not only would let a small political party to participate in the coming N20 election; each signature bears testimony, reinforces further the message that people want to use their DNIe without unwarranted curtailments imposed by Public Administration bodies.

MiFirma has reached the point where the debate is no longer whether they can collect endorsements meeting the CEB restrictions, but whether the CEB or any other Public Administration body has the right to impose such restrictions in an unjustified fashion. The first argument regards just the present moment. The second argument has far reaching implications not just for collecting endorsements, but future collection and for political initiatives making use of electronic signatures. This second one is a far more important battle than the first.

A lot depends on winning it.

Update 2011.10.06: The parties listed below have already enabled the collection of endorsements through MiFirma, despite the uncertainty on whether the CEB will finally accept or reject the endorsements thereby collected. We thank all them for using MiFirma and for giving their support in opposing the unjustified restriction of signature formats on the part of the CEB.

1. Bloc-Iniciativa-Verds-Equo-Coalició Compromís.
2. Izquierda Anticapitalista.
3. Escaños en Blanco.
4. Partido de Internet.
5. Partido Pirata.
6. Partido Azar.
7. Partido de la Libertad Individual.
8. Convergencia por Extremadura.
9. Pirates de Catalunya.
10. Iniciativa Legislativa Ciudadana.

By David Blanco
Saved in: Announcements, e-Signatures, Justice | 1 comment » | 5 October 2011