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Electronic Signatures: Legal and Practical Considerations for E-Signing on the Virtual Dotted Line
As technology pervades all aspects of business life, business leaders, customers and employees increasingly expect to be able to execute signatures on agreements, documents and elsewhere with the same level of convenience and assurance as the rest of their IT-enabled business. In response, organizations are exploring solutions allowing individuals to sign these documents electronically, and without requiring signatories be physically present. These electronic signature ("e-signature") solutions provide substantial benefits not only in terms of convenience, but also security and record keeping. However, in assessing whether or how to employ e-signatures, particularly in higher risk transactions, organizations should be careful to manage the practical issues and potential legal complexities associated with e-signatures through careful assessment and a robust governance program.
Implemented correctly with appropriate controls, e-signatures can provide marked improvements in convenience and overall security when compared with traditional physical or "wet" signatures. The ability to instantaneously execute a contract facilitates efficiency and convenience for all interested parties. E-signature solutions also complement current efforts by many businesses to centrally integrate and manage their contracts into digital repositories. Furthermore, forensic security controls coupled with e-signatures provide authoritative and quick verification, reducing the opportunity for fraud or challenges to authenticity.
However, different e-signatures present varying levels of practical risk associated with demonstrating their authenticity and enforceability. Many different types of e-signatures may be considered enforceable under U.S. and foreign law, including the use of an e-signature service, but also typing one's name or initials, an email address or signature line or a scanned manuscript signature, to name a few. In assessing which e-signatures are permitted and in what contexts, an effective e-signature program takes into account the following practical issues: authentication, adoption, non-repudiation, and admissibility.
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