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September 2000

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This article is in the news archives --- for current news go to the Third Branch News.


Federal Courts Sign On With E-Signatures

It was hailed as a revolution in Internet commerce when the Electronic Signatures in Global and National Commerce Act became Public Law 106-229 this summer. The act said an electronic signa- ture on a contract or other record "may not be denied legal effect, validity, or enforceability" solely because is it in electronic form. In short, an e-signature is as good as the old-fashioned pen and ink variety.

P.L. 106-299 defines an electronic signature as "an electronic sound, symbol, or process attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record." The act is intended, in part, to protect consumers and promote e-commerce. Its impact on the federal courts may be felt largely in cases involving contracts that have been signed electronically. Court orders, notices, and other official court documents, including briefs and pleadings, are specifically exempt from the provisions of P.L. 106-299, but documents submitted in support of pleadings are not. Courts remain free to adopt local rules on e-signatures and, while these may vary, they all give further legal certainty that the use of an e-signature on a document is valid.

For all nine courts currently using the case management/electronic case files (CM/ECF) system and the 12 courts in various stages of CM/ECF start-up, a filer's act of entering a log-in name and password is deemed a "signature" of the electronic document that is being filed. "Over 70,000 cases and approximately 1 million documents have been accepted in these CM/ECF courts," said Gary Bockweg, Administrative Office project manager for CM/ECF. "The log-in and password signatures for those documents filed electronically have been adequate and we've had no instances of filers disowning their documents."

Courts meet the federal rules requirements of an "original" signature on documents filed with the court in different ways. On papers filed electronically, this requirement may be met with the log-in and password, and the signature indicated by s/ or /s. For documents, such as an affidavit that must be signed by an individual, the paper may be scanned in so that an electronic image is available and can be viewed. Or the actual signed document may be kept on file by the attorney or petitioner, and an abbreviated paper document that confirms the document was signed may be filed. Or the actual signed document may be held by the attorney as an officer of the court.

With the same options, judges may sign court orders. Their use of their log-in name and password to enter the system is their e-signature on the order. A judge may prefer to sign a paper document and scan the image into the computer system. The down-side of this, of course, is that scanning takes time and also takes up more space on a computer system.

The process now in place for accepting and validating e-signatures seems to be adequate for today's needs, but that doesn't mean it always will be. Currently, private industry is looking at standards for e-commerce and e-signatures, and what they produce may, in turn, influence the federal courts. Certainly, as e-commerce becomes more prevalent, as people become more familiar with it, and as e-signature technology matures, federal courts probably will incorporate changing technology into the present process. Some options may be encryption, or documents that change their electronic identification each time they are modified. Several committees of the Judicial Conference are looking into the issues involved in e-signatures, including providing guidance to the courts on local rules. Right now, however, e-signatures in federal courts are no more, or less, acceptable than the pen and ink variety