THE ELECTRONIC SIGNATURE - E-SIGN
The "Electronic Signature in Global and National Commerce Act, "known as E-Sign, became law on October 1, 2000. This Act, signed on June 30, 2000 by President Clinton gives legal legitimacy to electronic signatures, contracts and records. E-Sign establishes the legal framework for use of electronic records, the exchange of electronic signatures and the use of electronic signatures as valid proof of a party’s consent.
E-Sign does prohibit, with limited exceptions, denying legal effect or enforceability to a signature, contract or other record solely because it is in electronic form or because it was signed or affirmed by an electronic signature. The statute defines the term "electronic signature," to mean an electronic sound, symbol, or process tat is attached to or logically associated with the record and intended to act as a signature. E-Sign does not require the consent by any party to use electronic records or electronic signatures.
E-Sign also addresses consumer protection. Required disclosures to consumers may be made electronically but only if the consumer first affirmatively consents to use electronic communications and provides his/her e-mail address. State laws affecting the validity of electronic documents and signatures are generally preempted except for adoptions of the Uniform Electronic Transactions Act, and notice requirements for public health and safety of consumers. Also excluded from E-Sign are certain legal documents and commercial documents, such as those regarding wills and estates, family law matters, certain provisions of the Uniform Commercial Code and judicial and credit-related proceedings.
There are uncertainties as to how the FTC Rule might be impacted, however the passage of E-Sign and the development of other tools - such as digital certificates suggests that the road to e-commerce will be that much more easily traveled.
The use of e-mail should be used cautiously – e-mail cannot always be safely deleted. Just because you have deleted an e-mail doesn’t mean it no longer exists elsewhere, such as in the computer of the sender, or the recipient, your e-mail server of in backup tapes.