Band 2, Heft 2

As dealings previously conducted in person are replaced by dealings without personal interaction and without any history of personal acquaintance, digital identity is assuming a crucial role in transactions, most recently those between government and its citizens. This paper examines digital identity as an emergent legal concept with a focus on its legal nature as a new form of intangible property. The constitution and functions of digital identity are examined, particularly in relation to the small collection of digital information which is now typically required for transactions with government departments and agencies as part of the transition to e-government. The author considers whether this transaction identity has the legal characteristics of property and the repercussions, including recognition and protection of ownership rights under public law. The paper adopts a comparative approach in considering these issues. Because of their obvious similarities, recent developments in United States of America in relation to use of digital identity for transactions are compared to Australia which has also recently formally announced its move to digital citizenship. However, although the paper focusses on the US and Australia, the analysis and findings are relevant to other jurisdictions, especially those in Europe and Asia which are now using a concept of digital identity for transactions between government and citizens and indeed also for private sector transactions. The analysis essentially translates to civil law countries as well as those which have a common law legal system.