ESRA Presentation 11-10-10: International Adoption and Cross Jurisdiction Issues in eSignatures and eRecords

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© 2010 Wildman, Harrold, Allen & Dixon LLP.
International Adoption and
Cross Jurisdiction Issues in
eSignatures and eRecords
Thomas J. Smedinghoff
Wildman, Harrold, Allen & Dixon, LLP
Chicago

2. 2© 2010 Wildman, Harrold, Allen & Dixon LLP.
International eSignature Models
• Approximately 100 countries have e-signature legislation of some
form; approaches include –
• Minimalist approach -- technology neutral signature model
• E.g., U.S., Australia, UNCITRAL Model Law
• Technology-specific approach (PKI)
• E.g., Utah (repealed), Washington, Malaysia, Egypt, Colombia, Korea,
etc.
• Dual signature approach
• U.S. states (Arizona, Illinois, Iowa*, South Carolina*) – secure electronic
signature
• EU – Electronic Signatures Directive – advanced electronic signature
• E.g., Canada, China, New Zealand, Singapore, Thailand, Vietnam, etc.

3. 3© 2010 Wildman, Harrold, Allen & Dixon LLP.
General Approach to eSignatures
• Form of signature + Attributes
• Form of signature = the data object that represents the
signature
• Attributes = the qualities that must be present to validate
the form of signature as a legally binding signature (may or
may not be qualities of the form of signature)
• Other signature requirements typically added by
evidentiary law – e.g., identity of signer and integrity
of signed record
(From both E-SIGN and UETA)

4. 4© 2010 Wildman, Harrold, Allen & Dixon LLP.
U.S Approach to eSignatures
• Form of signature = any sound, symbol, or process
• Clicking “I Agree” button
• Digital signature (PKI)
• Digitized imaged of handwritten signature
• PIN, password
• Typed name
• Voice signature
• Attributes
• Form of signature must be attached to, or logically associated
with, the record being signed
• Form of signature must be executed or adopted with the intent
to sign

5. 5© 2010 Wildman, Harrold, Allen & Dixon LLP.
Washington State Approach to
Digital Signatures
• Form of signature = a transformation of a message
using an asymmetric cryptosystem such that -
• Attributes
• a person having the initial message and the signer’s public key
can accurately determine –
• Whether the transformation was created using the private key that
corresponds to the signer’s public key; and
• Whether the initial message has been altered since the
transformation was made
(NOTE: This statute is likely preempted by E-SIGN)

6. 6© 2010 Wildman, Harrold, Allen & Dixon LLP.
Canadian Approach to
eSignatures
• Form of signature = one or more letters, characters,
numbers or other symbols in digital form
• Attributes
• Form of signature must be incorporated in, attached to or
associated with an electronic document
• Form of signature must be executed or adopted with the intent to
sign (implied?)

7. 7© 2010 Wildman, Harrold, Allen & Dixon LLP.
Canadian Approach to
“Secure” eSignatures
• Form of signature = one or more letters, characters,
numbers or other symbols in digital form
• Attributes
• Form of signature must be incorporated in, attached to or
associated with an electronic document
• Form of signature must be executed or adopted with the intent to
sign (implied?)
• Form of signature must be –
• Unique to the signer
• Created by technology under the sole control of the signer
• Created by technology that can be used to identify the signer
• linked to the document in such a manner that it can be used to
determine whether the document was changed after it was signed;

8. 8© 2010 Wildman, Harrold, Allen & Dixon LLP.
EU Approach to
“Basic” eSignatures
• Form of signature = any data in electronic form
• Attributes
• Form of signature must be attached to, or logically
associated with, other electronic data
• Form of signature must serve as a method of authentication

9. 9© 2010 Wildman, Harrold, Allen & Dixon LLP.
EU Approach to
“Advanced” eSignatures
• Form of signature = any data in electronic form
• Attributes
• Form of signature must be attached to, or logically
associated with, other electronic data
• Form of signature must serve as a method of authentication
• Form of signature must be –
• uniquely linked to the signer
• capable of identifying the signer
• created using means that the signatory can maintain under his
sole control, and
• linked to the data to which it relates in such a manner that any
subsequent change of the data is detectable;

10. 10© 2010 Wildman, Harrold, Allen & Dixon LLP.
UN Convention – Promoting
Cross-Border Interoperability
• UN Convention on the Use of Electronic
Communications in International contracts
• International treaty designed to remove barriers to
international e-commerce
• Primary focus is on requirements of writing, signature, and original
• History
• Negotiated by UNCITRAL 2001 – 2005
• Approved by United Nations General Assembly 2005
• Signed by 18 countries
• Ratified by 2 countries so far (Honduras and Singapore)
• U.S. working on ratification process – expected in 2011

11. 11© 2010 Wildman, Harrold, Allen & Dixon LLP.
UN Convention
Approach to eSignatures
• New, more flexible approach to electronic signatures
• Focuses on a “method” rather than data as the form
of signature
• Focuses on reliability of attributes as appropriate for
the purpose

12. 12© 2010 Wildman, Harrold, Allen & Dixon LLP.
UN Convention
Approach to eSignatures
• Form of signature = a method
• Attributes
• Method must identify the signatory
• Method must indicate the signatory’s intention
• Method must be either –
• As reliable as appropriate for the purpose of the transaction,
or
• Proven in fact to identify the signatory and indicate the
signatory’s intent

13. 13© 2010 Wildman, Harrold, Allen & Dixon LLP.
Significance of
UN Convention Approach
• “Method” allows for multi-step process
• The Form of Signature itself does not need to possess all
of the attributes
• So long as the overall process does
• Approach recognizes that security of process is a
relative concept
• Requirements vary with the transaction
• Includes a safe harbor allowing proponents to prove up the
required attributes
• At end of the day, virtually identical to U.S.
requirements