Electronic Signature Laws & Regulations - United States

Overview

Electronic signatures facilitate faster and more secure document signing, with the flexibility to choose the option that is most efficient for each organization, department, or project. The U.S. Electronic Signatures in Global and National Commerce (ESIGN) Act in 2000 legislated that electronic signatures are legal in every state and U.S. territory where federal law applies. Where federal law does not apply, most U.S. states have adopted the Uniform Electronic Transactions Act (UETA), which was published by the Uniform Law Commission in 1999. ESIGN is the default federal law that applies to transactions regarding interstate or international commerce in states that have not adopted UETA or another statute providing alternative procedures for the use of electronic signatures consistent with ESIGN. ESIGN was passed to resolve disputes between different state laws and standardizes the approach to electronic records and signatures in interstate and international commerce. UETA, which has been adopted in most jurisdictions, has substantively similar rules and applies in many transactional situations which ESIGN does not cover. The net effect of these laws is that every jurisdiction in the United States has substantially the same rules for the use of electronic signatures.

In the United States, there are two primary types of electronic signatures:

• Electronic signature (e-signature) refers to any electronic process that indicates acceptance of an agreement or record. Most electronic signature solutions in the United States fall into this broad category. Electronic signatures use a wide variety of common electronic authentication methods to verify signer identity, such as email, corporate ID, password protection, or a PIN sent to a mobile phone. Proof of signing is demonstrated via a secured process that often includes an audit trail and a final tamper-evident digital certificate embedded into the completed signed document.
• Digital signature uses a digital certificate from a trust service provider (TSP), such as a certificate authority (CA), to authenticate a signer’s identity. The digital certificates demonstrate proof of signing by binding the digital certificate associated with each signature to the document using encryption.

The information provided in this guide is intended to assist in understanding the legal framework of electronic signatures for U.S. states and territories. Laws pertaining to electronic signatures are constantly evolving, so this guide should not serve as a substitute for professional legal advice.

Electronic Signatures in Global and National Commerce (ESIGN) Act.

The ESIGN Act grants electronic signatures the same legal status as handwritten signatures throughout the United States, greatly simplifying and expediting how organizations gather, track, and manage signatures and approvals on agreements and documents of all kinds. In the ESIGN Act, an electronic signature is defined as “an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.” In simple terms, electronic signatures are legally recognized as a viable method to indicate agreement to a contract.

The ESIGN Act:

• Provides that any law with a requirement for a signature may be satisfied by an electronic signature
• Allows electronically executed agreements to be presented as evidence in court
• Prevents denial of legal effect, validity, or enforceability of an electronically signed document solely because it is in electronic form

ESIGN only applies to transactions that are part of interstate or international commerce, and specifically excludes any contract or record governed by the Uniform Commercial Code (UCC), or any transactions subject to laws governing wills, codicils, testamentary trusts, adoption, divorce, or other family law matters.

For an electronic signature to be legally binding under the ESIGN Act, it is recommended that all electronic signature workflows include the following five elements:

1. Intent to sign.
|As with a handwritten signature, a signer must show clear intent to sign an agreement electronically. For example, signers can show intention by using a mouse to draw their signature, typing their name, or clicking an “Accept” button that is clearly labeled.

2. Consent to do business electronically.
Most electronic signature laws also require some form of consent to do business electronically. This consent must be provided in a way that proves that the user has the technology required to electronically sign. Many enterprise electronic signature solutions ask signers to “click to accept” a standard consent clause or provide an option to customize a consent clause such as:

The parties agree that this agreement may be electronically signed. The parties agree that the electronic signatures appearing on this agreement are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.

3. Opt-out clause.
If a signer elects to opt out of signing an agreement electronically, clear instructions on how to sign an agreement manually should be easily accessible as part of the signature workflow.

4. Signed copies.
All signers should receive a fully executed copy of the agreement. Many electronic signature solutions automatically provide executed copies of agreements to signers as part of the approval workflow.

5. Record retention.
Record retention requirements are addressed via the ESIGN Act, which legitimized the validity of electronic records as long as they accurately reflect the agreement and can be reproduced as required. Often this requirement is met by providing a fully executed copy to the signer or permitting the signer to download a copy of the agreement.

New York.

As noted above, the State of New York has not adopted UETA. However, since 2000, electronic signatures have been legally binding in New York under the Electronic Signatures and Records Act (ESRA). This law broadly established the legal equivalence of electronic and handwritten signatures. ESRA also created the role of the “electronic facilitator” within the New York Office of Information Technology Services. This department oversees all technology used to promote government efficiency and effectiveness, including electronic signatures, and publishes a comprehensive best practices guide for those wishing to implement electronic signatures under ESRA.

In New York, electronic signatures have the same legal validity as handwritten signatures. They are admissible in a court of law as long as they comply with the rules of evidence. However, just as with all other electronic signature laws, no government organization or citizen is required to use electronic records or signatures. Additionally, ESRA does not apply to any document that provides for the disposition of an individual’s person or property upon death or incompetence, or to any document that appoints a fiduciary of an individual’s person or property. This includes wills, trusts, and “do not resuscitate” orders as well as powers of attorney and health care proxies.

Documents that cannot be electronically signed.

ESIGN narrowly applies to documents that are subject to federal law, and the applicability of UETA (and ESRA) varies from state to state. However, as a general rule, the following types of documents typically cannot be signed using an e-signature:

• Marriage, birth, and death certificates.
• Wills, codicils, and testamentary trusts.

Other documents that may require a “wet” signature, depending on the state, include “do not resuscitate” orders, powers of attorney, health care proxies, adoption papers, divorce documents, and other family law documents.

Related developments.

Nearly two decades after adopting UETA, a handful of states, including Arizona, Nevada, and Tennessee, have amended their respective UETAs to address the emergence and adoption of newer technologies, particularly blockchain. For example, Arizona amended its Arizona Electronic Transaction Act (AETA) to include Arizona Revised Statute § 44-7061, which ensures that electronic signatures and smart contract terms secured through blockchain technology fall under the scope of AETA. Blockchain distributed ledger technology was defined by the state to mean a decentralized ledger technology that is protected with cryptography. Specifically, the Arizona amendment deems:

• A “signature secured through blockchain technology” to be an electronic signature
• A “record or contract secured through blockchain technology” to be an electronic form or record; and
• A “smart contract” to be legally valid and enforceable
  

Resources.

To learn more, refer to the following resources:

• Stephen Mason, Electronic Signatures in Law (4th edition, Cambridge University Press, 2016)
• Stephen Errol Blythe, Ph.D., J.D., Ph.D., E-Commerce Law Around the World: A Concise Handbook (Xlibris, Corp., February 24, 2011), available on Amazon and Google Books
• Electronic Signature & Records Association
• Digital Evidence and Electronic Signature Law Review
• What are the differences between the E-Sign Act vs. UETA?

For more information.

https://acrobat.adobe.com/us/en/sign/business.html