Electronic Signatures And Records Act

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ELECTRONIC SIGNATURES AND RECORDS ACT AUGUST 10 GISELLE AYALA www.legalfocus1.com 1 Definitions 1. Electronic shall mean of or relating to technology…
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ELECTRONIC SIGNATURES AND RECORDS ACT AUGUST 10 GISELLE AYALA www.legalfocus1.com 1 Definitions 1. "Electronic" shall mean of or relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. 2. "Electronic record" shall mean information, evidencing any act, transaction, occurrence, event, or other activity, produced or stored by electronic means and capable of being accurately reproduced in forms perceptible by human sensory capabilities. 3. "Electronic signature" shall mean an electronic sound, symbol, or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record. 4. "Person" shall mean a natural person, corporation, trust, estate, partnership, incorporated or unincorporated association or any other legal entity, and also includes any department, agency, authority, or instrumentality of the state or its political subdivisions. 5. "Governmental entity" shall mean any state department, board, bureau, division, commission, committee, public authority, public benefit corporation, council, office, or other governmental entity or officer of the state having statewide authority, except the state legislature, and any political subdivision of the state The recognition of electronic signatures in New York State Given the fast development of technology and communications new discussion has arisen regarding the electronic and digital signature of documents. In an effort to promote and prepare the United States for the regulation of electronic commerce and digital transactions, in 1999, the National Conference of Commissioners on Uniform State Laws promulgated the Uniform Electronic Transactions Act (UETA). 2 The UETA contains no substantive law provisions, instead, it consists of a set of procedural provisions which allow states to create the appropriate infrastructure for the development of electronic commerce and government transactions, by validating electronic records and signatures. Nowadays, 47 states have adopted the UETA. However, Illinois, New York, and Washington have not. In New York State, the relevant statute is the Electronic Signatures And Records Act (ESRA)According to this statute, an "electronic signature" is any sound, symbol, or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record. Given its open language, some practitioners argue that the ESRA gives full effect to any technology to which a person recognizes validity to express intent. For instance, an electronic signature could be as simple as typing a name in an e-mail. For that reason, before concluding that a party has electronically signed a document, it would be advisable to determined if a document qualifies as an "electronic record" and if there are enough facts which show an intent to "sign". According to the ESRA an electronic record is any "...information, evidencing any act, transaction, occurrence, event, or other activity, produced or stored by electronic means and capable of being accurately reproduced in forms perceptible by human sensory capabilities." In relation to the intent of the person who "signs" the staute provides that no entity or person shall be required to use an electronic record or an electronic signature. The ESRA provisions have important effects on contract formation, if a person electronically signs a document, such a signature shall have the same legal effect of a signature affixed by hand. This means that a under proper circumstances a “whatsapp voice note”, an informal sms or chat message could bind a person to an agreement. Now, electronic signatures as oppose to digital signatures, which involve the use a public and a private key to validate a document, could forged, misinterpreted or made by 3 mistake. That is probably why the ESRA limited its scope, and expressly provided that the legal effects of an electronic signature may not be applied to documents such as wills, trusts, codicils, powers of attorney, healthcare proxies, among others. The electronic facilitator Under New York Law the office of information technology services shall be the electronic facilitator. The electronic facilitator shall have the following functions, powers, and duties: • To promulgate rules and regulations consistent with the provisions of the Act. • To develop rules and regulations, the electronic facilitator shall seek the advice of the attorney general, the state comptroller, the director of budget, government and private entities and individuals as the electronic facilitator deems appropriate. • To cooperate with government and private entities and individuals in order to assist in the development and implementation of this article. • To develop guidelines for the improvement of business and commerce by electronic means. Such guidelines shall identify preferred technology standards relating to security, confidentiality and privacy of electronic signatures and electronic records. Use of electronic signatures • The electronic facilitator shall establish rules and regulations governing the use of electronic signatures and authentication. • The electronic facilitator shall not establish rules or regulations that seek to apportion fault or impose or limit liability relating to the use of electronic signatures. 4 • Unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand. 5
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