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Overrules old laws requiring signature in writing and on paper for certain transactions Establishes uniform but voluntary standard
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Definition is broadly written to include biometric data Law is technology neutral, giving flexibility to the parties
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The Government Paperwork Elimination Act (GPEA), which took effect in 1998, helps make e-government a reality; GPEA aims to improve the delivery of government services by charging executive agencies with developing procedures to use and accept electronic documents and signatures19 The GPEA requires federal agencies, by October 21, 2003, to provide individuals or entities that deal with agencies the option to submit information or transact with the agency electronically, and to maintain records electronically, when practicable GPEA provides that electronic records and their related electronic signatures are not to be denied legal effect, validity, or enforceability merely because they are in electronic form It also encourages federal government use of a range of electronic signature alternatives, including the use of biometric-based identifiers20 The GPEA defines electronic signature as a method of signing an electronic message that: Identifies and authenticates a particular person as the source of the electronic message; and indicates such person s approval of the information contained in the electronic message 21 The Office of Management and Budget (OMB), in accordance with the requirements of the GPEA, promulgated guidance for GPEA s implementation, and several agencies have promulgated regulations regarding the use of electronic records and signatures These regulations attempt to duplicate the desired attributes of a paper-and-ink signature, either through the definition of the signature itself or through restrictions on the way the signature is to be used For example, the Food and Drug Administration defines an electronic signature as a computer data compilation of any symbol or series of symbols executed, adopted, or authorized by an
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The Government Paperwork Elimination Act of 1998 (GPEA), PL 105-277, Title XVII, codified at 44 USC 3504 et seq Implementation of Paperwork Elimination Act, Office of Management and Budget, January 26, 2001, available at http://wwwwhitehousegov/omb/fedreg/gpea2html#iis1 GPEA, Section 1710(1)
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individual to be the legally binding equivalent of the individual s handwritten signature 22 Although this definition itself is relatively broad, the regulations also ensure that the electronic signature has the equivalent attributes of a handwritten signature by requiring that the electronic signatures be linked to their respective electronic records to ensure that the signatures cannot be excised, copied or otherwise transferred to falsify an electronic record by ordinary means 23 The regulations further provide that signed electronic records shall contain information associated with the signing that clearly indicates all of the following:
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The printed name of the signer The date and time when the signature was executed The meaning (such as review, approval, responsibility, or authorship) 24 associated with the signature
The rapid growth of e-commerce, as well as the desire to increase productivity and efficiency by moving to paperless environments, led many states to enact statutes and regulations governing electronic transactions One approach, followed by almost one-third of the states, is to define electronic signatures in such a way that the definition itself would embody all the attributes of a valid, enforceable signature Although the precise wording may differ in various state statutes, those states following this approach require that, to be legally enforceable, an electronic signature must be:
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Unique to the person using it Capable of verification Under the sole control of the person using it Linked to the electronic record to which it relates in such a manner that if the record were changed the electronic signature is invalidated25
Other states provide a more general definition for electronic signatures and rely on the context of the transaction to establish the intention to authenticate
21 CFR 113(7) (Definitions) 21 CRF 1170 (Signature/record linkage) 21 CRF 1170 (Signature/record linkage) These features were derived in part, from a decision of the US Comptroller General in 1991, which described the rationale for accepting a digital signature as sufficient for government contracts under 31 USC 1501(a)(1) For more on this point, see Thomas J Smedinghoff and Ruth Hill Bro, Electronic Signature Legislation, 1999, available at http://profslpfindlawcom/ signatures/signature_4html
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