E-Signature Evidence 101 [Infographic]

Mary Ellen Power, June 24, 2013
digital evidence and electronic signature law

In a recent blog post, we provided an infographic on Why E-Signature Evidence Matters, which outlines the basics of evidence gathered in electronic transactions. So why does digital evidence and electronic signature law matter? E-signed transactions have a unique advantage over those in the paper world – you can gather e-signature evidence during the process because you maintain control over the documents throughout the transaction. Think about it – in the paper world, once you print and send off the document, you can’t be sure who signed it, whether it was completed properly or whether the signer was presented with the necessary disclosures.

To head off potential litigation when using electronic signatures and transactions – especially in regulated processes – it is crucial to capture e-signature evidence related to the signer(s), the document(s) and the entire signing process. But in the event of a legal dispute, defending your case is about more than presenting an authentic signed record of an electronically signed agreement. It is about proving:

Proving Digital Evidence and Electronic Signature Law

  • Consent – The signer consented to the use of electronic signatures;
  • Intent – The signer intended to be bound by the terms of the contract;
  • Tamper-proof – The electronic records have not been altered since being signed;
  • Presentation – How the records were presented to the signer;
  • Compliance – That the signing process complied with all applicable laws and regulations;
  • Access – That the signer had access to reliable copies of the signed document(s) after the fact.
Electronic Signature

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With e-signature evidence, proof around consent, intent, tamper-proof, presentation, compliance and access is captured from both the document and the process. Document evidence is at the heart of any electronically signed transaction and addresses the basic requirements outlined in the E-SIGN Act, which defines an electronic signature as "an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a person with the intent to sign a record."

The second type of evidence, process evidence, takes this a step further and provides context for how an electronic record was presented, reviewed and signed. Process evidence is a requirement stipulated by a number of federal agencies including the Internal Revenue Service (IRS) and the US Department of Education (for the use of electronic signatures in federally-insured student loans) and provides proof of how a customer completed a transaction on the web or through a mobile device. Process evidence is often so strong and compelling that it can deter cases from going to court in the first place.

Not all ESIGN-compliant solutions offer process evidence, however, as some just provide basic log files. A solution that will stand up in court captures e-signature evidence like the web pages that the customer viewed and signed, their order, time and date, email notifications, SMS codes sent, voice capture and other data related to the transaction such as IP address. The solution should then create a cryptographic link between the process evidence and the e-signed documents, making it possible to prove the e-signed records are in fact the product of a specific process.

To find out more about e-signature evidence, download the whitepaper, "Why ESIGN is Not Enough to Keep You Out of Court."

And for those of you that missed the last blog post on Why E-Signature Evidence Matters, this infographic helps illustrate for an organization’s legal, risk, compliance and IT staff how an electronic contract is presented and signed online, how it provides evidence and eliminates future risk around potential disputes as to whether a contract or agreement was presented, reviewed and signed. Have a look at the infographic below and please share this with your colleagues so we can dispel the myths around the legality of e-signatures for good!

esignature evidence