"This is legal, right?" – Electronic Signatures & The Law

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This entry is the third in our “What is an Electronic Signature, Anyway?” (Part One / Part Two) educational series.

First, a disclaimer.  This blog entry is not intended to provide legal advice.  You should discuss issues relating to the use of electronic signatures in your business with your own legal counsel and compliance officers.

With that out of the way, welcome back to our series on electronic signatures.  Up to now we’ve covered what can be defined as an electronic signature, and how one can provide assurance as to the validity of an electronic signature.  However, our clients and customers are mainly concerned with one thing:  are electronic signatures legality and admissible in a court of law?  Will my contract be null and void if use this electronic signature pad?  Will my account documents be tossed out because they’ve been digitally signed?  Can I accept electronic signatures on my contracts?

Only your legal counsel can answer these specifically, but, in this lengthy entry, we can offer some very high-level information on the applicable laws, what is meant by legal effect versus admissibility, the availability of case law, and where you can go to find out more information.

 

Laws

In 2000, President Clinton digitally signed into law the Electronic Signatures in Global and National Commerce Act (E-SIGN Act).  This public law provides that:

a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and (2) a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation.

At the state level, the Uniform Electronic Transactions Act (UETA), passed by 48 US States, provides much the same protections to electronic signatures and records. (The remaining 2 states have other legislation covering electronic signatures.)

Note that neither piece of legislation specifies a particular electronic signature technology.  In fact, the E-Sign Act states that:

The term ‘‘electronic signature’’ means 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.

By keeping the legislation technology-agnostic, the law doesn’t create a bias and also does not have to be changed as technology changes.  It therefore has the added benefit of allowing for a wide spectrum of electronic signature technologies (click-thru, signature pad, biometrics, digital signatures, etc), as long as the systems provide a signature that is “attached” to the electronic document needing to be signed, and provide evidence to the fact that the signatory actually signed the electronic document, showing an “intent to sign.”  The laws do prohibit the use of electronic signatures on certain legal documents such as wills and adoption papers, though.

Other US laws and regulations provide guidance in specific industries.  For instance, 21 CFR Part 11 covers the use of digital signatures in communications with the Food and Drug Administration.  This is a good time to mention that laws are not the only things to be concerned about when it comes to electronic signatures.  You also have to be aware of any regulatory standards or recommendations that may be in place for your industry. 

Using the pharmaceutical industry again as an example, the SAFE-BioPharma Association ( Signatures and Authentication for Everyone), interested in promoting the use of electronic documents and reducing costs, created a technical, legal & business model around the use of electronic signatures among pharmaceutical manufacturers, clinical investigators and regulators.    In fact, SAFE requires the use of digital signatures, and has certified (and recently re-certified) PDF-based digital signatures in Adobe Reader®, Acrobat®, and LiveCycle® Digital Signatures within the SAFE standard.

Outside of the US, most countries have electronic signature laws in place, as well, though they vary in complexity.  For the 27 member states of the European Union, Directive 1999/93/EC on a Community Framework for Electronic Signatures (EU Signature Directive) provides an in-depth legal framework for electronic signatures and their validity inside and between EU countries.  It creates several categories of electronic signatures, with so-called “Qualified” signatures required to be legally accepted and valid in all EU member states.  The high assurance requirements around Qualified Electronic Signatures (QES) do point to digital signature technology, with a requirement for a ‘Secure Signature Creation Device’ and best practices around key generation, storage, and certification of the providers of the signing credentials themselves.

Adding to the fun, EU member states are required to individually transpose EU Directives into their own legislation.  Certain countries decided to tweak the text on the way to implementation, and in so doing, created another layer of complexity that makes working with cross-border electronic signatures quite a challenge!

Note that electronic signatures applied in the US may not be provided legal admissibility in the European Union, especially on documents like electronic, or e-, invoices.

 

Legal Effect vs. Admissibility

We’ve tossed these terms around in this entry, so it’s probably time to clarify the difference between the two.  While lawyers around the globe may cringe at my over-simplification, here we go…

“Legal effect” pretty much means that, yes, the court will accept that an “electronic signature” is a “signature” as already defined by precedent and law.  So, in other words, an electronic signature and a wet ink signature are equivalent in most respects, and they can be brought into trial.

However, just like their wet ink counterparts, each document intended to be entered into evidence in a trial will need to be assessed for its “admissibility,” whether it’s signed with ink or a digital certificate.  Does it represent the intent of the signatory?  Has the document been altered?  Who had the right to sign this document?  How was the signature derived, and what controlled access to the document for its signature?  These questions come into play no matter the type of signature.

However, wet ink signatures have been in use for quite a long time and have established a certain amount of credibility.  Electronic signatures, on the other hand, are a newer phenomenon, and thus may be more subject to the critical eye of the court.  This is where the concept of assurance, as described in the previous entry in this series, can come into play.  Higher assurance signature methods that authenticate the signer, use document fingerprinting (‘hashing’) to provide integrity, and store signature keys (and thus, the “pen”) in a secure manner, are more likely in the long run to be provided with the benefit of the doubt than those signature technologies which provide lesser assurance.

So, in the end, your electronic signature may be a legal signature, but it could be tossed out of court if the judge feels that the signature process did not provide the appropriate level of assurance.

 

Case Law 

Well, we’d love to point you to a particular case which ruled this or that technology admissible or signatures captured on these types of documents were OK, but there are none.  In the United States, there are likely hundreds of cases that cover subjects related to the use of electronic documents and e-discovery, but none that specifically cover challenges to electronic signatures.  While this could mean that cases are being handled in arbitration (outside the courts), or that challenges have not been filed, it is all the more likely that the courts have been holding electronic signatures as accessible.  

What the future holds, no one is certain.  The EU Signature Directive provides a clear sign that assurance does play a role in admissibility.  Will the ideas of the Directive take hold in other countries around the world?  How will US and state case law react to increasing numbers of electronic signatures?  We’ll keep watching…and we’ll keep you informed!

The good thing is that with Adobe products like Acrobat and LiveCycle you are gaining the ability to sign electronic documents (PDF) with a spectrum of electronic signatures, whether they’re electronically captured on a tablet PC, created with digital certificates, or even required to be compliant with the EU Signature Directive.  You can rely on Adobe’s global expertise in the field and years of collaboration with our Security Partner Community to meet your electronic signature needs, no matter the requirements.

 

Links

Here are some links to continue your reading.  Again, be sure to confer with your legal counsel on these topics.

  • ABA Digital Signature Guidelines Tutorial – A great starting point for understanding digital signatures from the American Bar Association.
  • The Sedona Conference® – Though focused primarily on electronic records, this educational non-profit organizations provides substantial coverage of related case law and issues that may come into play.
  • Electronic Signatures & Records Association (ESRA) – This association brings together vendors and business owners in its efforts to extol the benefits of electronic signatures and documents.  Adobe is a board member of the Association.

 

Next in our “What is an Electronic Signature, Anyway?” series will be an exploration of real world examples of electronic signatures in action around the world today and what the implications are for the businesses implementing them and the customers using them.