Wildman Harrold | 225 West Wacker Drive | Chicago, IL 60606 | (312) 201-2000 | wildman.com
© 2010 Wildman, Harrold, Allen ...
2© 2010 Wildman, Harrold, Allen & Dixon LLP.
International eSignature Models
• Approximately 100 countries have e-signatur...
3© 2010 Wildman, Harrold, Allen & Dixon LLP.
General Approach to eSignatures
• Form of signature + Attributes
• Form of si...
4© 2010 Wildman, Harrold, Allen & Dixon LLP.
U.S Approach to eSignatures
• Form of signature = any sound, symbol, or proce...
5© 2010 Wildman, Harrold, Allen & Dixon LLP.
Washington State Approach to
Digital Signatures
• Form of signature = a trans...
6© 2010 Wildman, Harrold, Allen & Dixon LLP.
Canadian Approach to
eSignatures
• Form of signature = one or more letters, c...
7© 2010 Wildman, Harrold, Allen & Dixon LLP.
Canadian Approach to
“Secure” eSignatures
• Form of signature = one or more l...
8© 2010 Wildman, Harrold, Allen & Dixon LLP.
EU Approach to
“Basic” eSignatures
• Form of signature = any data in electron...
9© 2010 Wildman, Harrold, Allen & Dixon LLP.
EU Approach to
“Advanced” eSignatures
• Form of signature = any data in elect...
10© 2010 Wildman, Harrold, Allen & Dixon LLP.
UN Convention – Promoting
Cross-Border Interoperability
• UN Convention on t...
11© 2010 Wildman, Harrold, Allen & Dixon LLP.
UN Convention
Approach to eSignatures
• New, more flexible approach to elect...
12© 2010 Wildman, Harrold, Allen & Dixon LLP.
UN Convention
Approach to eSignatures
• Form of signature = a method
• Attri...
13© 2010 Wildman, Harrold, Allen & Dixon LLP.
Significance of
UN Convention Approach
• “Method” allows for multi-step proc...
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Smedinghoff: International Adoption

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

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Smedinghoff: International Adoption

  1. 1. Wildman Harrold | 225 West Wacker Drive | Chicago, IL 60606 | (312) 201-2000 | wildman.com © 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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

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