It’s impossible not to have noticed or experienced the tremendous growth in the use of technology to capture our “signature” or, from a legal perspective, the act that symbolizes our affirmative consent or agreement to be bound.
With a few simple clicks on our computer or phone, we can agree to purchase a product, at a certain price, and upon agreed to terms. We can create an “e-signature” or “digital signature” through the use of certain software that will create a fully enforceable electronic agreement – no paper needed. We can “e-file” documents with the court or other government agencies in a matter of minutes. Yet there are still cases when a ‘wet’ signature is required (and in blue ink I have found out).
Behind this growth of electronic signatures are state and federal laws that allow for us to consent, approve, or otherwise make an affirmative agreement to be bound in non-traditional ways. Generally, these laws state that electronic signatures, electronic agreements, and other electronic documents are enforceable and may be admitted into evidence in a court of law.
The Uniform Electronic Transaction Act (UETA) or similar legislation has been adopted in all fifty states. Minnesota adopted UETA in 2006, and its language is pretty straightforward:
(a) A record or signature may not be denied legal effect or enforceability solely because it is in electronic form.
(b) A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation.
(c) If a law requires a record to be in writing, an electronic record satisfies the law.
(d) If a law requires a signature, an electronic signature satisfies the law.
Minn. Stat. 325L.07
Under Minnesota’s UETA, if two parties agree to conduct business electronically, an electronic signature is deemed legally binding. An express agreement is not required and may be determined through the parties conduct, the context, and surrounding circumstances.
At the federal level, the E-Sign Act governs the use of electronic signatures and records in interstate and foreign commerce, and its provisions are very similar to UETA.
There are exceptions listed in the Minnesota UETA, such as health care directives, power-of-attorney appointments, real estate deeds, wills, and trusts. Substantive laws may take precedence over UETA, such as the UCC. In our practice, we create several documents that must be signed with a traditional, pen to paper signature and in front of a notary in order for them to be binding. Even this area is evolving, however, and starting in 2019, Minnesota will allow remote e-notarization with the use of live audio and video, so long as certain record-keeping requirements are met.
The Minnesota Electronic Authentication Act (Minn. Stat. 325K) governs the creation and use of digital signatures through Public Key Infrastructure technology (PKI) and licensed authorities. PKI is used when a higher level of authentication of parties and validation of information is required, such as internet banking or exchange of sensitive data.
There are still things that we do every day that require our original signatures, and recently, a county recorder’s office required a client to resign a deed in blue ink instead of black ink so that they could verify it was the original. These instances are becoming less common, however, as electronic methods and technologies are developed and adopted.
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