Digital signatures enable paperless contracts and can speed up business transactions. The 2001 E-Sign Act was meant to ease the adoption of electronic signatures, yet the mechanics of what makes up an e-signature were left deliberately wide open. Eleven years later, there is still widespread mistrust of e-signatures, even though they contain more evidence that a particular person signed a document at a particular time than a traditional pen-and-ink contract does.
How can you be certain that your e-signed documents will hold up in a court of law? Which best practices should you follow when using digital signatures in your business?
For answers, I talked with Dallas copyright attorney Bhaveeni Parmar, who uses e-signatures in her practice and in frequent applications with the United States Patent and Trademark Office. I also spoke with Ken Moyle, chief legal counsel of digital signature company DocuSign, as well as its founder Tom Gonser.
Why This Matters
Like it or not, it’s common for clients to dispute a contract by questioning its original validity. Such a client could claim that a digital signature fails to comply with the Federal E-Sign Act and run with it all the way to court.
The root of most potential legal problems with an electronically signed document relate to the enforceability of that contract. This is one of the reasons, when you’re ordering goods or agreeing to services online, for so many check-boxes acknowledging that you accept the terms of the agreement. A user who checks those boxes will have a hard time arguing later that they didn’t understand what they were signing.
The language of the contract can also be a problem, which is why a lawyer should look over a contract before your company releases it into the wild. Parmar, for one, hasn’t been involved in cases where digital signatures used by her clients have been questioned, and she isn’t convinced there will be many cases surrounding them in the future as long as businesses use appropriate e-signing methods.
The Three Security Levels of E-Signatures
According to Parmar, there are three levels of electronic signatures. The first and least bulletproof on the ladder is to use a picture of your signature on any document, whether it’s a PDF, DOC, DOCX, or other file type. Parmar would not recommend using this for most commercial purposes, even though it would be legal if the signing parties could prove their intent. A party could prove this with supporting evidence, such as emails requesting the services referred to in the contract, but Parmar says it is best not to chance it for a business transaction.
The second class of signatures, which Parmar uses all the time in her practice, is signing one’s name to a document electronically by typing your name in one of the following formats:
For submissions to the Federal court system: /s/Angela West
For submissions to the Patent & Trademark Office: /Angela West/
Both the // and the /s/ methods are considered to be legitimate signatures under the Federal E-Sign act, and acceptable enough for the legal industry. Parmar recommends using these on lower-priority contracts–such as an agreement for low-value, non-recurring services–where enforceability is unlikely to be called into question. To keep the consumer disclosure portion of the Act in mind, a line should be added to the contract clearly indicating that the signatories have the option to opt out and sign with a paper signature instead.
The third level, or the “Cadillac” level, is comprised of services like DocuSign and Adobe EchoSign, which follow the letter and intent of the E-Sign Act, even considering international laws in the makeup of their services. These should be the choice for high-value transactions, such as real estate contracts.
The E-Sign Act states that if a business is required to keep a record of a contract, it must also keep an electronic record. This requirement goes a step further by requiring that all signatories have access to the signed file–and residence on a company server is an unacceptable method of storage. Services like Adobe EchoSign and DocuSign, however, let you keep a copy of the contract online on their servers, which all signatories can access.
When Not to Use an E-Signature
Parmar suggests a few applications in which you would want an original pen-and-ink signature rather than an electronic one. Where a deceased person may be involved, such as with a health insurance policy or estate documents, a paper signature is a must since the person isn’t around to be questioned about intent in signing the document. Eviction notices, court orders, foreclosure notices and product recall notices should also contain a signature, based on Parmar’s broad reading of the E-Sign act and experience in her practice.
Changing Your Habits
If you’re using copied and pasted signatures on digital contracts, stop now. Parmar suggested that for my own business, I should at least go with the double-slash electronic signature method. But because I frequently do business across international borders, I’m going to go with a “Cadillac” option for my next contract.
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