This article is the first of a multi-part series on electronic signatures and remote online notarizations.
We had spoken of a "paperless" world, but always in the abstract, future tense. Over a weekend, we were flung into that world. With little time to prepare, we are suddenly sitting in our bedrooms, hallways, and quiet corners, huddled over laptops.
In the scramble to continue "business as usual" in the unfolding COVID-19 pandemic, businesses, running remotely, are showing concrete interest in securing and recording electronic signatures. The electronic signature has been around for nearly two decades. Most are aware of the federal Electronic Signatures in Global and National Commerce Act (E-SIGN Act) and the states-specific implementation of the Uniform Electronic Transactions Act (UETA). Both statutes make electronic signatures as valid as their wet ink-signed counterpart. More accurately, those statutes mandate that a signature shall not be deemed unenforceable merely because it is electronic rather than inked. But both statutes are merely permissive. Neither tells a business how to make, secure, retain, or prove electronic signatures. Both are also technology neutral, in that neither mandates the use of one form of signature over another. Like its federal counterpart, E-SIGN, UETA does not require the use of electronic signatures or records, but simply allows consenting parties to conduct their affairs electronically, knowing that their agreements will be enforced.
For consumer transactions, where a party is required to provide a written notice prior to the transaction, both E-SIGN and UETA require additional safeguards if the notice is provided electronically. E-SIGN requires that the consumer affirmatively consent to receive the notice electronically, and that the consumer may withdraw his or her consent at any time. It also requires the sender to inform the consumer of its procedures for withdrawing consent, the fees that will be charged for paper copies after consent is withdrawn, and the sender's hardware and software requirements. UETA further requires that these disclosures be sent in a form that the recipient consumer can print or otherwise store.
With the law of electronic signatures settled, a host of private companies have entered the field related to the mechanics of "how" to consummate electronic transactions. For example, DocuSign's eSignature product allows business to send, sign, and store documents, through both its proprietary apps and business platforms that integrate DocuSign's APIs. Adobe Sign is both a standalone product and a feature integrated into Adobe's widely used Acrobat Pro programs. PandaDoc and SignNow are also among the dozen other commercially available products easily accessed on the Internet. Each offers subscription packages, is recognized and reliable, and automatically generates and stores the audit trail for every agreement.
Since the turn of the century, electronic signatures have become increasingly customary. While, over time, businesses have gradually become acclimated to the idea of the nontraditional wet ink signature, the pandemic of 2020 and its immediate transformation of how business is conducted will create a permanent shift. E-signatures have become as commonplace as the staples and paperclips of yesteryear. Given where we are today, the world of business and commerce is ready.