14-08-00 - WordPress.com

collarlimabeansΑσφάλεια

23 Φεβ 2014 (πριν από 3 χρόνια και 3 μήνες)

59 εμφανίσεις

ESIGN 101

Ken Moyle

Chief Legal Officer

DocuSign
, Inc.


Margo Tank

Partner

BuckleySandler

LLP


David Whitaker

Counsel

BuckleySandler

LLP



The
UETA


The state law solution


the Uniform Electronic
Transactions Act


Created by
NCCUSL


Overlay statute


Authorizes replacing writings with electronic
records


Authorizes electronic signatures


Requires affirmative “opt
-
in” by parties
--

but opt
-
in may be shown by surrounding
circumstances


Problems with the
UETA



Must be adopted by each state


Process can take years


States add non
-
uniform provisions


California


Doesn’t change federal law







The
UETA

The Federal
ESIGN

Act


A federal solution
--

the
E
lectronic
S
ignature
I
n
G
lobal and
N
ational Commerce Act


Covers state and federal law


Instant 50 state baseline uniformity


Adopts the most significant
UETA

provisions


Provides specific standards for consumer consent


Sets boundaries for regulatory authority



Applies to the use of electronic records and signatures in virtually any business
-
to
-
business or consumer transaction, unless specifically excluded


UETA

applies to state law


ESIGN

applies to state and federal law


Primary exclusions:


Wills, codicils and testamentary trusts


Funds transfers (covered by
UCC

Article 4A)


Letter of Credit (covered by
UCC

Revised Article 5)


Securities (covered by
UCC

Revised Article 8)


Security interests in goods and intangibles (covered by
UCC

Revised Article 9)


Software licensing laws (if State has adopted
UCITA
)


Most laws concerning
checks

Scope of the
UETA

and
ESIGN

Scope of the
UETA

and
ESIGN


Included are:


Consumer protection laws


Laws governing real estate transactions (subject to special
rules concerning documents to be filed of record)


Laws governing Insurance


Laws of agency


Laws covering powers of attorney


Laws requiring notarization of documents


Laws governing trusts (except testamentary trusts)


Laws concerning the submission of documents to, or
issuance of documents by, government authorities (subject
to special rules
)

Three Pillars of the
UETA

and
ESIGN


A record or signature may not be denied legal
effect or enforceability solely because it is in
electronic form


If a law requires a record to be in writing, an
electronic record satisfies the law


If a law requires a signature, an electronic
signature satisfies the
law

Electronic Records Under

UETA

and
ESIGN


“Record” means information that is inscribed
on a tangible medium, or that is stored in an
electronic or other medium and is retrievable
in perceivable form


All writings are records, but not all records are
writings


“Electronic Record” is virtually any stored record
that is not on paper


Electronic Signature


An “electronic sound, symbol, or process
attached to or logically associated with a
record and executed or adopted by a person
with the intent to sign the record”


Electronic Signature


Includes:


traditional ink signatures


typed names


a click
-
through on a software program’s dialog box
combined with some other identification procedure


biometric measurements


a digitized picture of a handwritten signature


a complex, encrypted authentication system

Electronic Signature


Legal sufficiency vs. attribution


UETA

answers the question “is it a signature?”


Does NOT answer the question “is it your signature?”


Attribution must be proven


May be proven by any means, including surrounding
circumstances or efficacy of agreed
-
upon security
procedure


Burden of proof is on person seeking to enforce
signature


Non
-
repudiation is a legal condition, not a technology
feature

Electronic Signature


Intent and authentication


Signer must intend to “authenticate” a document
at time of signing


Four basic purposes for authentication


I agree to it


It came from me


I’ve seen it


I got it


Purpose of signature derived from surrounding
circumstances, just as on paper


Need “indicia of intent,” just as on paper


The Federal
ESIGN

Act:

Consumer Consent


A Closer Look


Special procedure required if statute,
regulation or other rule of law calls for a
writing to be provided to a consumer


Basic rules:


Consumer must affirmatively consent


Other party must provide disclosures prior to
consent in clear and conspicuous statement


Consent must demonstrate ability to receive
documents

The Federal
ESIGN

Act:

Consumer Consent


A Closer Look


Clear and conspicuous disclosure of:


Consumer’s right to have documents provided on
paper


Consequences of withdrawal of consent


Fees


Termination of transaction


Scope of transaction covered by consent


Procedure for withdrawing consent and updating
contact info


Procedure and fees for obtaining paper copies


Hardware and software requirements for accessing
and retaining records


“Reasonable demonstration”


Consumer consent must


Be electronic or be confirmed electronically


Include a “reasonable demonstration” of consumer’s ability to
access information in the electronic form(s) provided


Legislative history attempts to set standard


Test is not intended to “burden commerce”


Email confirming receipt of test files is sufficient


Failure to include “reasonable demonstration” in consent
process may not be used as basis to invalidate contract


Query: How to handle transactions where consumer gets
paper but business retains electronic records?

The Federal
ESIGN

Act:

Consumer Consent


A Closer Look

Key Requirements


Key Requirements


Consent is required if law otherwise requires info delivered in writing



ESIGN

Consumer Consent Process



B
-
to
-
B Consent


UETA

delivery provisions not preempted by
ESIGN



Need Agreement (express or implied) on Delivery Method



Need to deal with
bouncebacks

in many cases


Popular Delivery Options



Display as part of an interactive session,



Delivery in the body of an email or as an email attachment, or



Delivery of an email or other electronic notice that has a URL
embedded in it that the consumer may activate to review the
information.


Key Requirements


More Key Requirements


Electronic records are not enforceable against a recipient if the
sender inhibits the recipient

s ability to print or retain a copy


Recipient must be able to retain a copy for later reference


Electronic Records retained by sender must be accurate, remain
accessible for later reference


U.S. Mail delivery requirements in law or contract

trump


ESIGN
,
and may prevent use of electronic records


All formatting, timing and display requirements must be observed.

Timing


includes:


Proper sequence within transaction


Any time frames or deadlines for delivery


Length of time the information/document remains accessible