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On June 30, 2000, Congress enacted the Electronic Signatures in Global and National Commerce Act ("ESIGN" or "the Act"), to facilitate the use of electronic records and signatures in interstate and foreign commerce by ensuring the validity and legal effect of contracts entered into electronically. Yet many do not understand how their business can be compliant with the E-SIGN Act.
First we need to understand that E-SIGN (additional E-SIGN analysis here) [http://privasign.com/laws-esign.asp], in section 101(b) does not require people to use electronic signatures. When electronic signatures are used then Sub-section (c), in direct support of (b), requires a “Consumer Disclosure” that the consumer also "consent electronically, in a manner that reasonably demonstrates that the consumer can access information in the electronic form that will be used to provide the information that is the subject of the consent".
As we can clearly see, the law outlines a two step process to signing files electronically. First, disclosure of the consumer’s right to use paper, which is followed by their consent to the electronic process. The second phase is the actual capture of the electronic signature.
Once the signature is captured the law directs its attention to the electronic record that has now been created. This aspect of the law, while often overlooked, provides the true power and cost savings of electronic signatures – the ability to STORE electronic files. Printing and storing a paper copy of the electronic record defeats the achievements of this law. It is the accessibility and cheap storage costs of electronic files that really amount to long term cost savings. Sub-section (d) details the retention of contracts and records. If a “statute, regulation, or other rule of law requires” the file to be retained then “that requirement is met by retaining an electronic record”.
Accuracy and availability are discussed in both (d.1.B) and (e). The record must be available to all parties involved; this is easily accomplished by allowing each signatory to save an electronic copy of the record on their own computer. The electronic record and signature created must be in a format that is both accurate and accessible. Meaning that the technology to read, display and transfer the record is of a generally acceptable form. This aspect of the law requires businesses to choose electronic signature services that provide them with flexibility.
PrivaSign provides a multi-step approach to “Consumer Disclosure”, by providing multiple disclosure messages to the signatory. Acknowledgement of this disclosure is captured as proof that the consumer was informed, and did accept to use an electronic process.
PrivaSign's "electronic records" are compliant with both sub-section (d) and (e). PrivaSign stores all files for a minimum of 3 months. Additional storage maybe purchased or at anytime during the 3 months both sender and recipient may download the file so that they may be in compliance with any applicable laws. This downloaded file can be saved to their computer, saved to a portable medium (CD, DVD or others) or even printed to paper. PrivaSign captures file integrity hashes so that all parties can verify the integrity of saved files.
PrivaSign allows any file type to be electronically signed. This increases the availability of the electronic record as described in (d.1B) and (e) and gives each business the ability to select the best electronic format for their clients.
By: Isaac Bowman
Isaac Bowman is Vice President of the Electronic and Digital Signatures International Standards Commission and an IT business consultant. He graduated form UT of Dallas with a major in Information Systems. Isaac Bowman has published over 50 articles on electronic signatures and completed the largest online resource for electronic signature laws and regulations.
ibowman-articles@privasign.com
Additional Law References [https://privasign.com/laws.asp]
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