Electronic signatures include symbols or other digital forms of data that are attached to an electronic document as a form of verification of the signatory’s intent to sign. Also known as e-signatures, these types of signature are as legally binding as a handwritten signature, so long as they adhere to certain standards and requirements. In the European Union, for instance, eIDAS outlines e-signature requirements, whereas in the United States, electronic signatures are regulated by NIST-DSS. These agencies provide a set of standards that indicate how and when electronic signatures can be implemented.
These signatures are used increasingly in e-commerce and legal settings. However, the concept of being able to sign a document from afar is not new. In the middle of the 19th century, some common law jurisdictions legally recognized telegraph signatures, while fax signatures have been legally recognized since the 1980s.
Legally Binding Signatures
Though definitions as to what is legally binding in an e-signature vary across jurisdictions, the goal is always to ensure that an electronic signature is a secure and accurate signal of the signatory’s intent. The process should be seamless. Some of the most common requirements around the world include:
- The signature must be uniquely identifiable and linked to the signatory.
- The signatory is the only person with access to a private key used to create the signature.
- The signature can identify when data accompanying it has been tampered with following the signing of the document.
- In the event of suspicious activity following the signing of the document, the signature can be rendered invalid.
When it comes to electronic signatures, there are varying levels of security available. Each level of security involves measures to protect and ensure the validity of the signature. Some jurisdictions, including the European Union and Switzerland, require an advanced electronic signing process involving a qualified e-signature.
A qualified e-signature makes it difficult to question the authorship of the signature, and the document is non-reputable. Electronic signatures are qualified through the implementation of a digital certificate that is encrypted within a secure, signature-creating device. Both the device and digital certificate must be authenticated by a qualified trust service provider.
Enforceability of E-Signatures
Electronic signature laws around the world, including in the U.S., have been influenced by the United Nations’ publication of UNCITRAL Model Law on Electronic Commerce, which was published in 1996. Though some countries show variations in their adaptation of this law, many have adopted it outright. In the United States, an electronic signature is defined as a digital sound, process, or symbol that is attached to a specific contract or legal document. This sound, process, or symbol is adopted by the person who intends to sign the document. The actual signing may involve electronic transmissions or encoded messages. In general, the United States has a broader definition of what constitutes or qualifies as an electronic signature. The United States ESign Act of 2000 outlines further definitions, requirements, and e-signature concepts. However, many states have also adopted unique e-signing statutes.
