Often, the law is maligned as an anachronism unable to keep pace with technology and the other advancements of our modern world. While there are no doubt examples where this may be true—just as one may consider the use of a light meter with a DSLR to be passé—by and large, the law has kept pace with the advancements. Sometimes, the law doesn't need to change to keep up; at other times, the law keeps pace; and every once in a while, the law takes a leap ahead of technology. Electronic and digital signature legislation is an example of the law leaping ahead.
Not Your Typical John HancockAbout now, you might be wondering how one would sign an email as you would a letter or a contract with a pen. About 15 years ago or so, various states started to answer that question by enacting legislation specifically recognizing and giving legal effect to electronic signatures, and making electronically signed documents as enforceable as any other signed document (at least in most instances—there are certain exceptions). State efforts were followed by federal legislation that President Clinton signed into law in mid-2000.
In general terms, an "electronic signature" can be just about anything electronic that a person intends to be a signature. For example, Florida's Electronic Signature Act of 1996 defined an "electronic signature" to be "any letters, characters, or symbols, manifested by electronic or similar means, executed or adopted by a party with an intent to authenticate a writing." In practice, this means that simply writing one's name at the end of an email can be a signature if it was intended to be a signature. Likewise, a scanned copy of a handwritten signature would also qualify as an electronic signature. The definition is purposely broad to permit people to utilize any variety of technologies when electronically signing documents.
Digital signatures are a subset of electronic signatures. These are generally based upon a form of encryption technology called asymmetric cryptosystems; the scheme involves the use of two separate and different keys for encrypting and decrypting/verifying messages. One key, commonly referred to as the "public key," so named because it's freely distributed to the public, allows the recipient of a message to verify the digitally signed message. The "private key," so named because it's intended to be kept private, is used to create a signature. Only a signature created with the private key will match up with the related public key. While this technology adds a level of complexity to utilizing electronic signatures, it also brings with it certain distinct advantages; since digital signatures are based upon encryption schemes, they bring a level of reliability that can far exceed traditional pen-and-ink signatures, and many of these schemes have the added benefit of being able to detect whether the digitally signed message was altered after it was signed (any alteration causes the signature verification to fail).
Some digital signature technologies will use separators to identify the message and signature. The text of the message itself appears between "MESSAGE" and "SIGNATURE" boundaries. The signature itself appears at the bottom of the message (the jumbled text at the bottom contains information relating not only to the signature itself, but also the contents of the message; thus, if anything between the "MESSAGE" and "SIGNATURE" boundaries changes, the signature will fail and the software used to verify the signature will explain that the message has altered). When properly used, digital signatures can be more reliable and less susceptible to forgery than traditional, handwritten signatures. Unfortunately, this reliability comes at a cost of requiring users to learn how to use the specialized software necessary to create digital signatures.
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