Mike Rosing wrote:
On Thu, 30 May 2002, cypherpunk_reader wrote:
If the end user insists on e-signing a document without having read it it is there perogative, but I think there should be a better system in place to insure that they either read it or that they did not read it but agree anyway.
I don't think so. If they are fool enough to sign a document without reading it, it's the same as using a pen to sign a contract without reading it.
...
An e-signature can have the same weight in law as an ink one, and the same rules apply. A fool and their money are soon parted.
Here's my analysis of the current situation regarding electronic signatures in the United States. The following few paragraphs are the way things are as I see them, not necessarily how they should be. An e-signature in this situation would indicate assent to a contract. One of the key points to forming a valid contract is a meeting of minds between the parties. Another is authentication that the alleged contracting party was actually the person who agreed to the contract. Meeting of minds includes knowing, understanding, and agreeing to the terms of the putative contract. With paper contracts, even lengthy ones, knowledge and understanding are assumed if certain conventions are met, such as font size and emphasis of important terms, as well as opportunity to read the contract thoroughly. And the contracting party is assumed to be able to take the contract to a lawyer if he's uncertain about any part of it. Many electronic agreements fail on one or more of these points. These contracts are often very lengthy, the equivalent of several pages of printout, and are often viewed only through a very small window, and often have small or otherwise illegible fonts. In paper, this would be similar to a five-page contract being written out on post-its, with only one visible at a time. Many of the agreements cannot be printed out, which interferes with both reading and obtaining expert advice. The situation is made even worse by the mingling of technical jargon with the legal jargon; many software-related contracts are even less intellegible than other contracts. Meeting of minds is questionable under these circumstances. Authentication is similarly problematic. Ordinary contracts are commonly agreed to in person or with signatures. Electronic contracts are commonly agreed to with one or two mouse clicks. There is nothing to indicate that the "signer" was the person he alleged to be. Some laws (see below) attempt to make this irrelevant, essentially saying that if your computer agreed, you agreed, but this is unlikely to stand up in court on basic principles. I was unable to find any US case law (court cases which went to trial and verdict, and which were written up for publication) on this subject. Bear in mind that I no longer have access to Lexis or Westlaw, but google and such can usually find relevent cases. I suspect that there are no reported cases hinging on electronic signatures. This isn't surprising, because the oldest electronic signature law is less than six years old, and that's probably not enough time for a problem to have arisen, been litigated, been appealed, and been written up. The "e-sign" law of 2000 doesn't provide much help. It states simply that a contract may not be denied solely because it was electronically signed. Furthermore, it applies only to interstate and international contracts. (Though most electronic contracts for, eg, downloaded software will be interstate or international.) It doesn't provide standards or guidance for what makes a valid electronic contract. The Uniform Electronic Transactions Act (UETA) is a model law which about half of the states have enacted. Some, maybe most, of these states have modified UETA before passing it. It's not clear how this affects contracts in which only one party is in a UETA state. UETA says that an electronic record fulfills any requirements for a written contract document and that an electronic signature fulfills any requirement for a signature on the contract, and it outlines what constitutes an electronic record and an electronic signature. Interestingly, UETA states that an "agent", meaning a program, can fulfill the requirements for a signature, even without human participation. See http://www.ladas.com/BULLETINS/2002/0202Bulletin/USElectronicSignature.html for a decent summary, and http://www.uetaonline.com/ for more detail. Summary: Recent laws have attempted to make electronic contracting binding, but they have not addressed some of the fundamental principles of contract law. These fundamental principles are often stretched or broken in electronic contracting. There is no case law on electronic contracts. I suspect that a contested electronic contract would be easily voided. OK, that's the way I think it is, currently in the US. The way I think it _should_ be is much more caveat emptor, as Dr Mike and others have said, but the legislators and judges have neglected to ask for my input. -- Steve Furlong Computer Condottiere Have GNU, Will Travel Vote Idiotarian --- it's easier than thinking