Legality of eSignatures

[JonPerera]

Over the past decade the trend has been for countries to adopt laws supporting electronic signatures or digital (certificate/PKI-based authenticated) signatures. However, this remains an area that remains in flux with some countries supporting only wet (i.e., handwritten) signatures (e.g., Germany, France, Italy, Brazil and Mexico) and others supporting wet, electronic and digital (e.g., US, Australia, Canada, Singapore and United Kingdom). There are also a handful of countries where only digital signatures are enforceable and some, like Japan, where the laws are in place for electronic and digital signatures, but custom and culture limit wide usage.

Because of this inconsistency in laws, Adobe has posted a map to help you out, located here

This is a good start, but we think more is needed. We're exploring a few bolder moves that companies like Adobe should pursue.  What's your take on this issue, and how should we partner to encourage more governments around the world to adopt eSignature legality?

Have a great Friday!

JP

[JonPerera · Accepted solution]

State and local government organizations need to ensure that e-signatures are legal, safe, and will hold up to scrutiny in a court of law.  The good news here is that e-signatures have been legally binding in the United States since at both a Federal and State Level for more than 14 years. The IRS is now accepting e-Signatures, and the technology has been legalized in more than 30 countries around the world.

The Electronic Signatures in Global and National Commerce Act (ESIGN) (Pub.L. 106-229, 14 Stat. 464, enacted June 30, 2000, 15 U.S.C. ch.96) is a United States federal law passed by the U.S. Congress to facilitate the use of electronic records and signatures in inter-state and foreign commerce by ensuring the validity and legal effect of contracts entered into electronically.  The intent of the ESIGN Act is spelled out in the very first section (101.a), that a contract or signature “may not be denied legal effect, validity, or enforceability solely because it is in electronic form”. This simple statement provides that electronic signatures and records are just as good as their paper equivalents, and therefore subject to the same legal scrutiny of authenticity that applies to paper documents.

Case Study: New York State. New York passed the Electronic Signatures and Records Act (ESRA) in 2000. It gives e-signatures and electronic records in New York State the same legal validity and effect as hand-written signatures and paper-based records, subject to certain exceptions stipulated in ESRA.  Effective September 23, 2012, ESRA will allow the use and acceptance of electronic signatures and records with conveyances and other instruments recordable under Article Nine of the Real Property Law, and permit recording officers to electronically accept for recording or filing digitized paper documents or electronic records of real property instruments such as deeds, mortgages and notes, and accompanying documents. Note that New York’s ESRA has deemed that certain documents are excluded including: wills, trusts, decisions consenting to orders not to resuscitate, powers of attorney and health care proxies, with the exception of contractual beneficiary designations, and other documents specified in ESRA or as determined by the Electronic Facilitator. [1]

U.S. state laws modeled on the Uniform Electronic Transactions Act (UETA) also provides a legal framework for electronic transactions. It gives e-signatures and records the same validity and enforceability as manual signatures and paper-based transactions. This UETA was adopted by the National Conference of Commissioners on Uniform State Laws (NCCUSL) in 1999. To date, 48 states and provinces have passed the Uniform Electronic Transaction Act.

Solutions like Adobe EchoSign make it easy for a “sender” of a contract to ask the Signee to first answer a series of personal questions and enter identifying information prior to opening the document. EchoSign tracks the IP address and location of where the document was signed. And the solution provides a digitally sealed PDF that cannot be tampered with or altered. This is substantial evidence compared to a handwriting expert working with a barely legible and scribbled signature (with the “print name” line likely left blank).

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[1] Source:  http://www.its.ny.gov/Policy/ESRA/esra.htm