Good Riddance to Fax Machines
Electronic commercial law (E-SIGN) is liberal as to what can serve as a legal signature. Essentially, a signature is just a symbol adopted with the intent to approve or authenticate a transaction or a record. The symbol can be as simple as the characters of a name at the bottom of an email.
But e-commerce practitioners have long fussed over how secure a signature should be. They feared that if the signature were just a typed name in an email, then the purported signer could repudiate* the signature by alleging that someone stole the password to his email account, spoofed his email address or tampered with the email record after the email was sent. Although supporting such an allegation in the context of real commercial relationships is often hard to do, the risk of the allegation still causes many lawyers and other professionals to insist that documents be signed by fax or hand-delivered paper.
But technology has changed. Webcams have become very common. They are on all new laptops, and now even smartphones like the iPhone have cameras that face the user. These webcams make video signatures easy, like this:
A webcam signature could be attached to an email that also attaches the document being signed (in the example above, the document is a non-disclosure agreement with Acme Corp.). By itself, email provides a pretty good system of records, controls and audit trails to establish from which account the email came, when it was sent and whether the record of it was tampered with. But the webcam signature adds an additional layer of reliability. It shows the signer moving his lips and speaking the words of intent to sign.
Yes, a webcam signature can be forged. But forgery is not easy amid the details of an actual commercial relationship. The forger must coordinate a fabrication of audio and video in a way that fits with the other facts of the real situation.
A webcam signature is emotionally very compelling because it involves recorded, physical activity. It’s hard to say I did not soberly, knowingly, voluntarily intend to sign the NDA.
Note one of the controls I used in the webcam signature example above. I spoke the date and time. The date and time in the video could synch up with the time stamp on the email to make a potential forger’s work all the more difficult.
Another update: See demonstration of webcam signature in capture of cyber-investigation evidence.
Mr. Wright is the founding author of The Law of Electronic Commerce, a treatise originally published in 1991.
*Signatures are sometimes needed for proving that a particular individual approved a transaction. Experience teaches that signatures can be useful to connect an individual to a legal act. Some criminal prosecutions have failed on account of the prosecutor's inability to prove that the defendant signed a document. For example, in United States v. Larm, 824 F.2d 780 (9th Cir. 1987), an allergist was acquitted of Medicare fraud concerning claim forms he did not personally sign. In United States v. Brown, 763 F.2d 984 (8th Cir.), cert. denied, 474 U.S. 905 (1985), the conviction of a pharmacist was reversed on some counts because the government could not link him, through a signature or initials, to claims submitted to the government for brand-name drugs when generic drugs were dispensed.