b'GUEST VIEWExploring the Validity of Utilizing Electronic SignaturesUnder UETA, a signature cannot be denied legal effect simply because it isin electronic form, a contract cannot be denied legal effect because electronicChristine means were used in its formation, if a law requires a record to be in writingTaylor then electronic means suffice, and if a law requires a signature than an elec-tronic signature generally satisfies the law. Although they had been adopted in busi- plies. Where federal law does not apply, how- clearly states that the parties agree that the natures and are admissible in a court of law.nessfor many years, this spring electronic ever, most states have adopted the precursor document may be electronically signed and No government organization or citizen is re-signaturesdue in large part to the pan- 1999 Uniform Electronic Transactions Act that the signatures are intended to have the quired to use electronic records or signa-demic became the most dominant mode (UETA) or some local version thereof. same validity as a handwritten signature. tures. ESRA expressly does not apply to anyof signing a document. In our industry, it ESIGN legally recognized electronic sig- Next, a person utilizing e-signatures should document that provides for the dispositionlent itself most prevalently in the execution natures and records if all parties to the con- provide a signed copy to the signer and as of an individuals person or property uponof waivers and general releases, seasonal tract choose to use electronic documents required by ESIGN, the document must be death or incompetence, or any documentlong-termagreementsandevenfor and to sign them electronically. UETA pro- retained. Electronic records are legitimized that appoints a fiduciary such as wills, trusts,overnight guest reservations. But is an elec- vided that when a law requires either a writ- as long as they can be reproduced. do not resuscitate orders, powers of attor-tronic signature as legally valid as the tradi- ten or a legal signature, an electronic record UETAs fundamental principles are simi- ney and health care proxies.tional wet-ink signature? or signature can satisfy that requirement lar to that of ESIGN. Under UETA, a signa- Additionally, as a caution, UETA has beenGenerally, most electronic signatures, in when the parties to the transaction have ture cannot be denied legal effect simply amended by some of those states to includemost states, are just as valid and enforceable agreed to proceed electronically. because it is in electronic form, a contract new technologies, so it is important that youas a traditional signature. In the United More specifically the ESIGN ACT identi- cannot be denied legal effect because elec- review the current adaptation in your local-States, there are primarily two types of vir- fies an electronic signature as an electronic tronic means were used in its formation, if a ity.For example, in some states, if other re-tual signatures: (1) an electronic signature sound, symbol, or process attached to or log- law requires a record to be in writing then quirements are met, the UETA holds thator e-signature and (2) a digital signature. An ically associated with a contract or other electronic means suffice, and if a law re- you can have a binding contract even if itelectronic signature refers to any electronic record and executed or adopted by a person quires a signature than an electronic signa- was only negotiated over emailAny defenseprocess that indicates an acceptance of an with the intent to sign the record. The ESIGN ture generally satisfies the law. There are still that ones signature was not written downagreement. Most virtual signatures fall into Act further provides that any law with a re- some caveats to electronic signatures, gen- on paper or non-enforceable because it isthis category. Electronic signatures can use quirement for a signature may be satisfied by erally they do not apply to birth, wedding, in electronic form is specifically rejected bya wide variety of ways to authenticate the an electronic signature, that electronically ex- or death certificates and wills, codicils, and the UETA, which provides legal recognitionsigners identity, including email, password ecuted agreements may be presented as ev- testamentary trusts are often exempt. of electronic records to the same extent as aprotections or pins sent to another device idence in court, and it prevents the denial of UETA has been adopted by 48 states, the traditional ink contract or signature. How-such as a cell phone. Proof of the validity of legal effect, validity or enforceability of an District of Columbia, Puerto Rico, and the ever, one should understand that there is nothis signature is usually demonstrated by a electronically signed document solely be- U.S. Virgin Island, however, New York and special credibility or weight given to elec-secure process such as a digital certificate cause it is in electronic form. But how do you Illinois have instead implemented their own tronic signatures. An electronically signedembedded in the executed document. prove intent and consent? What are the best statutes. Illinois statute identifies some elec- contract will face the same scrutiny in aA digital signature by contrast, utilizes a practices under ESIGN? tronic signatures as more secure than oth- court of law as would its paper counterpart.trust service provider (TSP), to authenticate To prove clear intent, you must be able to ers. Secure signatures are those that are When generally considering the validity ofa signers identity. These digital certificates show that the signer intended to sign and be created in a manner that is commercially an electronic signature look to the following:are associated with the specific signatures bound by this agreement electronically. For reasonable under the circumstances, ap-Did the parties consent to the electronicandultimatelyboundtothedocument example, the signer can show intention by plied by all parties in a trustworthy and ver- signaturedid they intend to sign the doc-using encryption. doing an active affirmation, such as using a ifiable manner, relied upon in good faith by ument electronically? When it is a sophisti-The United States passed the Electronic mouse to draw their signature, typing their all parties and all parties agree that the sig- catedbusiness-to-businesstransactionSignatures in Global and National Com- name or clicking an accept button that is nature is secure. New York enacted the consent can be circumstantial, but for con-merce (ESIGN) Act in 2000. ESIGN stated clearly labeled. To prove consent, make sure ElectronicSignaturesandRecordsAct sumers, and in most cases, it must be affir-that electronic signatures are legal in every that the document outlines what they are (ESRA). Under ESRA, electronic signatures mative. Note: the law generally requires thatstate and U.S. territory where federal law ap- clickingtoaccept,orsomeclausethat have the same validity as handwritten sig- consumers opt into the process, this cangenerally be satisfied by requiring the signerto check a box or click a button during theprocess. What was the process by which the sig-nature was created? The process must berecorded by the software used to create thesignature. Were records kept? Records of the elec-tronicsignaturesmustberetainedandavailable for accurate reproduction. Gener-ally, those who use services such as Do-cuSign and Adobe Sign are in the clear asthey generate audit reports to satisfy therecording requirement.Thus, after checking your local state law,look into using electronic signatures. Theycan save you time, energy and in the time ofthe pandemic, limit in-person interaction,allowing you the legal protection you needvia the signature and allowing your guests tomove on to the more fun part of their tripsoonerthe camping!Christine Taylor, a graduate of UCLASchool of Law, is an associate at The TowneLaw Firm, P.C., a law firm with attorneyslicensed in New York, Connecticut, Ver-mont, Massachusetts, Washington D.C.,New Jersey & Pennsylvania. Taylor hasgrown up in the camping industry.Herfamily has owned three campgrounds inboth the Kampgrounds of America Inc.(KOA)andYogiBearsJellystoneParkCamp-Resort franchise systems. WCM12 -January 2021Woodalls Campground Management'