What are digital signatures?
As we progress daily into the digital age, digital/electronic signatures have become more prevalent within the workplace. Digital signatures are essentially the same as handwritten signatures, oftentimes referred to as “wet signatures,” but are digitally-driven signatures executed by users on their computers. Digital signatures perform the same role as its “wet” counterpart; both verify the authenticity of a document. A major difference, however, is that digital signatures actually provide greater protection by combatting against tampering issues.
What are the basics of this technology?
This technology is an asymmetric cryptography system which allows for the creation of the digital signature to be secure and authentic. Digital signatures offer further protection by using Public-Key Infrastructure (PKI) technology. Within this system there are two keys: one public and one private. As the titles suggest, the private key should be kept secret because it is what makes up your own signature. The public key, on the other hand, is made available to anyone. This public key essentially creates a proof of identity that allows others to verify your signature. The private key is also the only way to decrypt, or unlock, the public keys of others to validate their signatures.
What’s the setup process? Differences between vendors?
Setting up these digital signatures is rather easy. The first step is to create a signing certificate. To create this signing certificate, you must go to a trusted third-party known as Certificate Authority (CA). By creating a signing certificate, you also create the previously discussed public-private digital key pair. The reason for using a separate entity in this process is because it increases the legitimacy of one’s signature. The third-party relationship is critical if any discrepancies should arise over a signature, as the onus will be on the CA to address the legitimacy of a digital signature should an issue arise.
In some instances, using a third-party to create a certificate is not required. For example, vendors such as Docusign and Adobe allow you to obtain a digital signature that includes a signing certificate as well. As a result, people who receive documents while using vendors like these will not necessarily need to download additional software.
How are these signatures used? What is the validity within the legal profession?
When we discussed this topic with members of a sample of law firms, it was evident that most firms are very keen on using this technology. In fact, the firms who are not utilizing electronic signatures currently are considering implementing this practice relatively soon. Electronic signatures do not only provide better security, which of course is paramount to all law firms, but communication is easier and certainly more timely and efficient for all parties, including clients, opposing counsel, same firm members, etc. Within non-profit legal organizations, for example, electronic signatures are widely accepted for organizations that are funded by Legal Services Corporation (LSC). The far-reaching acceptance of electronic signatures is attributed to the federal Electronic Signatures in Global and National Commerce Act (ESIGN), combined with laws which were created after the Uniform Electronic Transactions Act (UETA). As a result of these two acts, digital or electronic signatures legally hold the same weight as written signatures. Similar to email technology replacing the need for fax machines for “instant,” or “immediate” communication, electronic signatures are providing an additional legally-binding layer of acceptable and legal “instant or immediate” communication between parties.
Although ESIGN and UETA ensure the legal validity of digital signatures, these two acts do not and cannot force individuals to use this technology to affirm or sign off on documents. We learned from our research and our polling of law firm employees that even though most of their clients will accept documents with electronic signatures from their lawyers or their law firm, some still prefer to take the more traditional route and return, either via fax or a scanned email, the document requested of them with handwritten signatures.
We propose that a year from now, electronic signatures will be as commonplace as email, but in the meantime, before adopting electronic signature technology in your firms as the norm for all, it may make sense to ask clients and other parties to sign – via a wet signature – a document which explains the technology and which gives all parties the opportunity to agree (or disagree) to this new efficient practice. Rome wasn’t built in a day, and neither of us learned cursive handwriting in a day, but this technology will be the norm for all someday very soon.
Respectfully Submitted,
Reed Dillon and Nolan Bedward
Summer 2016 Interns
Corboy & Demetrio