TMT: Alert on Decree No. 182/2019.
CIRCULAR
Dear Sir or Madam,
Decree No. 182/2019 (the “Decree”) was published in the Official Gazette on March 12th, 2019, with the purpose of adapting the regulations of Law No. 25,506 on Digital Signature (the “Digital Signature Law”) as amended by Law No. 27,446 (on simplification and de-bureaucratization), updating its content in light of technological advances and experience in the implementation of the digital signature.
In this way, the Decree approved the new regulation of the Digital Signature Law, repealing:
(i) the previous regulation -included in Decree No. 2628 / 2002-;
(ii) Decree No. 283/2003, which had temporarily authorized the National Office of Information Technology to provide digital certificates for use in the circuits of the National Public Administration that required a digital signature;
(iii) Decree No. 724/2006, which had introduced certain amendments to Decree No. 2628/2002; and
(iv) Sections 8, 9 and 10 of Decree No. 561/2016, which assigned, respectively, certain functions to the now Modernization Government Secretariat, to the Administrative Modernization Secretariat of the now Modernization Government Secretariat and to the National Audit Commission in relation to the Digital Signature Infrastructure.
Regarding the regulation of the Digital Signature Law itself, in general terms it can be observed that the Decree, on the one hand, takes up several concepts of Decree No. 2628/2002 and Resolution No. 399/2016 of the then Ministry of Modernization (which is not mentioned even once although it includes important definitions regarding the implementation of the digital signature in Argentina) and, on the other hand, it moves away from these rules or it includes new provisions.
Some of the provisions that are replicated from Decree No. 2628/2002 and/or the mentioned Resolution are those related to the effects of licensing, the duration of the license, the grounds for revocation of such license, the grounds for revocation of the digital certificates, the resources and obligations of licensed certifiers, and the designation of registry authorities and their functions.
On the other hand, the Decree introduces new provisions regarding, among other issues, (i) the systems and types of audits to be carried out by the Auditing Body (which, according to Section 34 of the Digital Signature Law, is the National Audit Commission) to the certifiers who apply for the license, to the licensed certifiers and to the registry authorities; (ii) the personnel that the registry authorities must designate to fulfill certain roles (a person in charge of the registry authority, a registry official and a digital signature technical support manager); and (iii) the trust service providers and the functions that they may exercise according to what is determined by the Administrative Modernization Secretariat of the Modernization Government Secretariat of the Cabinet Office of Ministers.
In this regard, it should be reminded that the Licensing Entity, which is the one that grants the license to a licensed certifier, is made up of the Government Modernization Secretariat of the Cabinet Office of Ministers and the Administrative Modernization Secretariat under this Modernization Government Secretariat. In addition, the Enforcement Authority is the same Modernization Government Secretariat of the Cabinet Office of Ministers.
We can highlight as interesting introductions the provision that states that “The digital signature of an electronic document satisfies the requirement of signature certification established for the manuscript signature” (Section 2 of the Annex to the Decree), as well as the one that establishes that “when a rule requires the formality of a public deed to grant general or particular powers, to take actions, file administrative appeals, carry out procedures, formulate requests or request registrations, this requirement is considered satisfied through the power granted by the interested party in the Platform for Remote Procedures (“Plataforma de Trámites a Distancia” or TAD by its Spanish acronym) of the Electronic Document Management System (“Sistema de Gestión Documental Electrónica” or GDE by its Spanish acronym), unless otherwise provided by law” (Section 3 of the Decree).
Finally, it is worth mentioning that the Decree presents some disarray, for example regarding the Third-Party Services (Article 20 of the Decree), the Services of the Trust Providers (Article 36 of the Decree) and the Registration Authorities (Article 30 of the Decree), so we can expect the implementation of this new regulation by the Administration, in order to specify its scope.
Should you require any further information on this matter, please do not hesitate to contact us.
Sincerely.
Emilio Beccar Varela
Florencia Rosati
Mariel Marcet
Martín Beccar Varela