The introduction of technology into the legal world has created the need to develop a body of law to promote its growth. Important to this growth is the concept of open standards, allowing all actors to compete on the same plane. As with the dawn of any new era of technology, negotiating legislation through the considerations each actor deems important creates an environment of rapidly changing standards.

This article will assist the reader in understanding both electronic and digital signatures, and offer a detailed explanation regarding the usage and admissibility of electronic signatures in the law.

Electronic Signatures vs. Digital Signatures
It is important to recognize the difference between "electronic signatures" and "digital signatures." A clear understanding of the different definitions is important in both the legal and technological arena. In fact, a number of state statutes provide specific definitions for each term.¹

Electronic Signature
The phrase "electronic signature" is the umbrella term to describe any type of digital marking used by a party to be bound or to authenticate a record.² It is a very broad term and could include markings as diverse as digitized images of paper signatures, typed notations such as "/s/ John Smith" at the bottom of an electronic document, or even addressing notations, such as e-mail headers or footers.³ It is considered the digital equivalent of the traditional "X" used to sign a contract or document.

"Electronic signature" implementations may offer no greater security than that of a password. Further, "electronic signatures" have no way of verifying whether a document has been altered since the time that it was signed. In other words, "electronic signature" technology does not provide any kind of signer or document authentication.

Digital Signature
"Digital signatures" are a specific type of "electronic signature." A "digital signature" is legally more acceptable than other types of "electronic signatures," as it offers both signer and document authentication. Signer authentication is the capability to identify the person who digitally signed the document. Document authentication ensures that the document or signature cannot be easily altered.⁴ The process of creating a digital signature and verifying it accomplishes the essential effects that a handwritten signature does today for many legal purposes⁵:

• Signer authentication: If a public and private key is associated with an identified signer, the digital signature attributes the message to the signer. The digital signature cannot be forged, unless the signer loses control of the private key.
• Message authentication: The digital signature also identifies the signed message. Verification reveals any tampering, since the comparison of the hash results (one made at signing and the other made at verifying) shows whether the message is the same as when signed.
• Non-Repudiation: Creating a digital signature requires the signer to use the signer's private key. This act can alert the signer to the fact that they are consummating a transaction with legal consequences.
• Integrity: The process of creating and verifying a digital signature provide a high level of assurance that the digital signature is genuinely the signer's.

Security and Signature Technology
Security is always a concern with any electronic signature technology. A digital signature is considered superior to a handwritten signature in that it attests to the contents of a message as well as to the identity of the signer. As long as a secure hash function (an algorithm that creates a digital representation or "fingerprint") is used, there is almost no chance of taking someone's signature from one document and attaching it to another, or of altering a signed message in any way. The slightest change in a signed document will cause the signature verification process to fail, alerting the recipient to the alteration.⁶

Are Electronic Signatures Valid?
The validity of electronic signatures in the legal arena is best understood by understanding the technology as it is defined and interpreted in three specific areas:

• 1. The legislative history of electronic signatures (legislative history refers to the documentation that describes the intent of lawmakers when creating electronic signature rules and legislation);
• 2. Solutions created by the courts to address electronic signatures and technology; and
• 3. The precedent set by the trial court judge in the case management order for a case.

Legislative History
Each state in the U.S. has considered the ramifications of electronic signatures, and has either passed or is introducing legislation. Although the states are in agreement regarding the need to create laws that give an electronic signature the same validity as the traditional pen and ink signature, they are conflicted in the type of technology that they embrace. Most states have adopted requirements that are either described as the Public Key / Private Key, Asymmetric Cryptology, or the Five-Point Definition technologies.⁷

No matter the type of technology embraced, the laws passed by the different states recognized the growing dependency on electronic transactions. Merely identifying the need to fully utilize the potential of the Internet was an important first step in establishing the framework for future Federal legislation.

However, the fact that each state independently formulated requirements for electronic signatures created the need for standardization. Subsequent legislation suggested by the National Conference of Commissioners on Uniform State Laws and enacted by Congress changed the scope, applicability and function of these individual state laws.

Emerging Common Ground: Enactment of the Uniform Electronic Transactions Act The purpose of the National Conference in fashioning the Uniform Electronic Transactions Act (UETA) was to furnish states with uniform rules governing electronic commerce transactions. The primary objective of UETA was to provide electronic transactions with the same legal effect as transactions memorialized on paper without changing any applicable substantive laws.⁸ UETA sets forth three fundamental goals:

• 1. A record or signature will not be denied legal effect and enforceability solely because an electronic record was used in its formation.
• 2. An electronic record will satisfy any law that requires a writing.
• 3. Any signature requirement in the law will be met if there is an electronic signature.⁹

The drafters sought to eliminate barriers to electronic commerce with the adoption of the standard-free UETA. Requirements for electronic records, transactions, and signatures were virtually the same as the requirements for the paper counterparts.

Federal Preemption: Enactment of the Electronic Signatures in National and Global Commerce Act (E-Sign)
UETA was in the process of being adopted by many states when on June 30, 2000, President Clinton signed the Electronic Signatures in National and Global Commerce Act (E-Sign). The enactment of E-Sign had broad reaching ramifications, as it preempted state laws governing electronic transaction requirements.

As required by E-Sign, each state must operate under neutral standards when transacting business electronically. E-Sign recognizes that UETA, when enacted in its pure form, provides this neutral standard. E-Sign prohibits a jurisdiction from rejecting an electronic record on the basis of conflicting requirements between two jurisdictions, and mandates that emerging standards in the electronic transaction market remain neutral to allow anyone to engage in electronic commerce.

An Important Exclusion: The Relationship of E-Sign and UETA to Court Documents The drafters of E-Sign excluded certain types of electronic transactions from coverage. Important to the legal industry is the exclusion described in the "Specific Exceptions," Section 103 of the Federal Act:

(b) ADDITIONAL EXCEPTIONS. - The provisions of section 101 shall not apply to-
(1) Court orders or notices, or official court documents (including briefs, pleadings, and other writings) required to be executed in connection with court proceedings.¹⁰

Congress made specific overtures to exclude court documents from the Act, affording each court the choice to formulate and adopt their own electronic signature standard.

Court Solutions
The current trend towards electronic filing (e-filing) that is occurring within both the state and federal court systems provides a clear example of the acceptance of electronic technology and signatures in the courts.

With the advent of e-filing, courts needed to address the issue of the false filing or signing of pleadings and documents electronically. In the traditional paper method of filing, a witness or notary may be required to validate a person's identity or signature. However, verification using that method is not a deterrent for someone who chooses to misrepresent his/her identity. Very seldom is the identity of the signer or the signature questioned or even noticed in non-verified paper filings.

The issues of identity and signature verification have been addressed by all of the e-filing projects across the country. Most systems require the attorney to submit an application to utilize an e-filing site, and upon approval, a user name and password is provided to the applicant. The enactment of local court rules or an adaptation of Rule 11 of the Rules of Civil Procedure has largely regulated the appropriate submission and signing of documents.¹¹ The courts have been satisfied with this method of identity and signature verification.¹² In Federal Court, rules mandate that every brief, motion, or other documents be signed by the attorney of record. In response to the growing trend toward electronic signatures in Federal Court, the10th Circuit Court of Appeals adopted Rule 46.5, which provides that "an electronic signature is an original signature."¹³

Case Management
In order to combat inefficiencies in the paper process, judges issue case management orders to allow for the use of electronic filing in a particular case or project. Such a case management order establishes the conditions and requirements for filing documents electronically and becomes the "law of the case." Electronic signature signing of documents and pleadings are usually specified in each management order, and follow traditional e-filing guidelines.

Conclusion
This article highlights some essential aspects of the different types of technology, the changes in both state and national legislation, and the acceptance of electronic signatures in the court setting. More information, including the status of state and federal initiatives on electronic signatures, can be found at http://www.reallegal.com/esig.asp.

In summary, it is important to stress that the usage of electronic signatures in the law is continuing to expand and is being afforded the same legal effect as the traditional signatures that are memorialized on paper.

Endnotes:
1 See www.mbc.com
2 Enterprise Solutions: Legal Requirements. (See http://www.cic.com/enterprise/legal/).
3 Digital Signature Guidelines Tutorial, American bar Association, (See http://www.abanet.org/scitech/ec/isc/dsg-tutorial.html).
4 Id.
5 Id.
6 Pam Roberts, "Electronic/Digital Signature Position Paper." (See http://www.state.tn.us/finance/oir/prd/edsignat.html)
7 For Specific State information see the McBride, Baker and Coles website at http://www.mbc.com/.
8 National Conference of Commissioners on Uniform State Laws - Introductions and Adoptions of Uniform acts http://www.nccusl.org/uniformact_summaries/uniformacts-s-ueta.htm.
9 Id.
10 Electronic Signatures in Global and National Commerce Act § 103(b)(1).
11 See, for examples, Colorado Local Rule 121, Section 1-26; C.R.C.P. Rule 11.
12 Premiere issue of the E-Filing Report: November/December 2000; Vol. 1, No. 1.
13 USCS Ct App 10th Cir, Cir R 46.5 (2000)

About our author...

Rebecca A. Askew, Esq., is Legal Projects Director for RealLegal, the applications division of Law.com, Inc. RealLegal offers a comprehensive suite of software applications for managing the complex world of law. Ms. Askew can be reached at 888.584.9988, Ext. 128, or raskew@reallegal.com.