States need to adopt digital signature standards

Robert J. Sherry

Digital signature laws are in place in many states. But a national Tower of Babel might arise because of differing digital signature practices.

More than a year ago, I warned that we'd need national standards because states were already establishing their own approaches to the use of digital signatures in authenticating transactions.

All states have considered, and many have enacted, a form of electronic signature legislation. Trouble is, they've taken a range of approaches as to what will satisfy the signature requirements of electronic commerce.

At one end of the spectrum are states that simply acknowledge that digital signatures satisfy the legal requirements of a signature. This group includes Arizona, Indiana and Oregon. At the other end are states that require that electronic signatures include certain attributes. This group includes Alaska, Maryland and New Hampshire.

One legal-standards body is taking on the uniformity problem. The National Conference of Commissioners of Uniform State Laws is attempting to move the standardization process forward. Last spring, the group issued a draft of the Uniform Computer Information Transactions Act, which was scheduled for approval at its meeting in Colorado last month. UCITA is a model statute created to unify the patchwork of laws governing computer information transactions. The draft proposes an approach allowing authentication to be proven by any sound technical method.

Under UCITA, digital signature users would be able to safely assume that the authentication was done with the intent to establish both a sender's identity and a receiver's intent to accept the authenticated document'regardless of the method used. Any contrary intent would be expressly stated.

At the same time, the commissioners presented a draft of the Uniform Electronic Transactions Act. UETA specifically addresses electronic records and signatures applied to transactions between parties who have agreed to conduct transactions electronically. The act would cover legal recognition of electronic signatures, the effect of electronic signatures, retention of records, admissibility of evidence and state governmental electronic records and signatures.

The commissioners' efforts are pushing the digital signature movement in the right direction. It will still be some time before we see if and how states actually enact these model laws. At least the model laws will alert state and local governments to the need for uniformity.

Robert J. Sherry is a partner at the law firm McKenna & Cuneo LLP. He heads the government contracts practice in its San Francisco office, counseling information technology companies on federal, state and local issues.

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