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determinations may undermine the predictability that is necessary to foster effective and efficient transactions in the e-commerce and e-government arenas Basically, it s important to know with relative certainty whether the transaction is enforceable before the transaction is performed The difference in context between the execution of a paper-and-ink signature and an electronic signature raises some doubt about whether simply affixing any electronic symbol to an electronic record embodies sufficient attributes of authentication to warrant enforceability Accordingly, to ensure predictability in these transactions and to avoid after-the-fact reliance on proof of intention to authenticate, lawmakers at both the federal and state levels have addressed the circumstances in which electronic signatures will be valid and enforceable
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Although each piece of legislation regarding electronic signatures is unique, some general observations about the various legislative efforts are possible As the previous discussion indicates, signatures must have certain attributes to be enforceable A legislative drafter may choose to create these attributes in various ways For example, the definition of an electronic signature could be very broad, whereas the type of transactions for which an electronic signature can be used could be limited Alternatively, the drafter may attempt to define electronic signature narrowly, ensuring that only those electronic symbols that possess the desired attributes of an enforceable signature will qualify as electronic signatures The following discussion, which provides an overview of some of the most important legislation governing electronic signatures, illustrates the different approaches adopted to date It also demonstrates that the law is prepared to recognize a biometric as an electronic signature
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A major piece of federal legislation dealing with electronic signatures is the Electronic Signatures in Global and National Commerce Act (E-SIGN Act), 14 signed into law on June 30, 2000 with an effective date of October 1, 2000 Congress passed the E-SIGN Act, in large part, so that electronic commerce [would] have the opportunity to reach its full potential 15 The E-SIGN Act promotes the use of electronic contract formation, signatures, and record keeping in private commerce by establishing legal equivalence between contracts written on paper and contracts in electronic form, and be-
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The Electronic Signatures in Global and National Commerce Act (E-SIGN Act), PL 106-229, 15 USCA 7001 et seq (2000) See, for example, Michael H Dessent, Digital Handshakes in Cyberspace Under E-SIGN: There s a New Sheriff in Town! University of Richmond Law Review, 35, 943 (January 2002) (footnotes omitted) This article provides a detailed treatment of electronic signature law
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15: The Law and Private-Sector Use of Biometrics
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tween pen-and-ink signatures and electronic signatures The E-SIGN Act applies to any transaction relating to the conduct of business, consumer or commercial affairs between two or more persons By its terms, therefore, the E-SIGN Act applies broadly to transactions in e-commerce Thus, the treatment of electronic signatures under the E-SIGN Act provides useful guidance as to the circumstances under which electronic signatures are enforceable The E-SIGN Act defines electronic signature as an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record 17 This definition is quite broad, which could allow the formation of an enforceable contract with something as simple as a computer mouse click on a dialog box indicating agreement to specific terms Biometric data also squarely falls within the E-SIGN Act s definition Although the definition of electronic signatures under the E-SIGN Act is broad, the Act also contains numerous exceptions to which the Act will not apply Among these exceptions are the creation and execution of wills, codicils, or testamentary trusts; family law matters such as adoption or divorce; and court orders and notices Thus, to generalize, the E-SIGN Act does not venture into affairs of death, affairs of family, and affairs of the judiciary The E-SIGN Act is voluntary, requiring the parties to consent to its use The law does not force individuals to use it The consumer consent provision of E-SIGN, contained in 15 USC Sec 7001(c), has been the subject of some concern, and unresolved issues remain about the application of E-SIGN For example, hackers could attempt to forge electronic signatures on online purchases, requiring the federal or state governments to develop additional consumer protections Also, E-SIGN, a federal law, does not replace state law if a state has enacted the Uniform Electronic Transaction Act (UETA) or an equivalent18 Since E-SIGN and UETA are not quite identical, it is useful to bear this in mind The upcoming State Law section discusses UETA in detail
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Legal validity of a transaction document is not denied solely because it is in electronic form No paper; no problem
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See Office of Management and Budget Guidance on Implementing the Electronic Signatures in Global and National Commerce Act (E-SIGN Act), available at http://wwwwhitehousegov/ omb/memoranda/esign-guidancepdf E-SIGN Act, section 106(5); 15 USC 7006(5) UETA, 15 USC 7002(a)
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