legally binding digital sigs (Atom Smasher)

[David Benfell]

On Thu, 22 Sep 2005 08:32:27 -0500, Lowell Porter wrote:

> www.findlaw.com is a good resource for legal questions. It can be
> tedious to find exactly what you are looking for, however when it is
> found, you'll get plenty of valuable information.

Using the site: keyword, in this case on "site:findlaw.com" can help
with a Google search.  Even so, there are a number of hits.  The
article that appears definitive begins at
<http://profs.lp.findlaw.com/signatures/signature_1.html>.  (Look for
the continuation pages on the "next page" link, *after* the
footnotes.)

The bottom line seems to be that a digital signature is enforceable
when the state says it is.  And it doesn't appear there's any real
agreement on the conditions under which this should be so.

However there is this:

<quote>
A signature, whether electronic or on paper, is first and foremost a
symbol that signifies intent . Thus, the definition of "signed" in the
Uniform Commercial Code includes "any symbol" so long as it is
"executed or adopted by a party with present intention to authenticate
a writing."            The primary focus, of course, is on the
"intention to authenticate," which distinguishes a signature from an
autograph. Yet, the nature of that intent will vary with the
transaction, and in most cases can be determined only by looking at
the context in which the signature was made.
</quote>

I am  not a lawyer, but...

This allows electronic signatures to be accepted as long as *all*
parties to a contract agree to use them.  I perceive a "chicken and
egg" problem here, but, for instance, in completing a financial aid
application through the FAFSA web site for college, a student agrees
to sign the application electronically, using their peculiar process.
The act of filling in the application presumably demonstrates the
intent confirmed by the symbol obtained through the signature process.

The author of the article, Thomas J. Smedinghoff, seems to acknowledge
that this doesn't really resolve some fundamental legal issues, and
devotes considerable space to the "direction in which [electronic
signature] legislation should be moving."

So, if I understand all this correctly, use and rely upon electronic
signatures at your own risk.  Avoid using them in situations where
litigation is reasonably foreseeable, for the validity of such
signatures is probably still open to challenge.  If possible, obtain
paper authorizations from all participants agreeing to use electronic
signatures.

-- 
David Benfell, LCP
benfell at parts-unknown.org
---
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