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Esignatures: proven to be legal?

As of 2000, electronic signatures carry the legal equivalence of wet signatures with the passing of the federal Electronic Signatures in Global and National Commerce Act (ESIGN). All states—as well as the District of Columbia, Puerto Rico and the Virgin Islands—have also adopted the Uniform Electronic Transactions Act (UETA) or a similar statute validating e-signatures at the state level.

Both statutes (ESIGN and UETA) establish a general rule that e-signatures are valid and legally enforceable, so long as certain requirements are met.

Consent. All parties must agree that the transaction will be processed and completed electronically. Consent in this case does not have to be expressly identified, but rather is determined by conduct. If both parties electronically sign this document, they have satisfied this requirement.

Intent. It must be made clear that the signer intended the e-signature, or process, to act as an electronic signature. If a signer attaches an electronic signature to a document or uses a touch screen to sign, and clicks a “submit” or “done” link, intent has been verified under these statutes.

Association. Electronic signatures must be associated with the specific document that needs the signature. This can be accomplished by attaching an electronic signature to a document before being saved as a PDF.

Attribution. Additionally, electronic signatures must also be associated with the individual electronically signing the document. This can be done by:

  • Including documented communications and actions of and between the parties
  • Recording date/time stamps and IP addresses at the time of signing

Retention. Once the document or form has been electronically signed, it must be stored in such a way that it is easily and accurately reproduced at a later date by anyone entitled to a copy.

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While electronic signatures are now rarely challenged, intent and attribution are the two requirements that become the focus if a signature is called into question. Audit trails allow businesses to provide a court all party communications and actions, as well as any metadata from any given time throughout the process. That metadata also serves a dual purpose to meet evidence admittance requirements as well as the attribution requirements.

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