Are electronic signatures legally valid in the US? ESIGN and UETA explained

What does the ESIGN Act say?

The ESIGN Act covers transactions in or affecting interstate or foreign commerce. Under 15 U.S.C. § 7001(a), a signature, contract or record cannot be denied legal effect solely because it is electronic. Nobody is required to agree to use electronic records or signatures, apart from a narrow exception for government agencies.

An electronic signature is broadly defined in § 7006(5): an electronic sound, symbol or process attached to or logically associated with a record, and adopted with the intent to sign. The law does not require a particular technology.

What does UETA add, and how does it fit with ESIGN?

UETA is a uniform state law, and nearly every state has enacted a version. Illinois and Washington are recent adopters. New York has not adopted UETA and instead uses its Electronic Signatures and Records Act, under which an e-signature has the same validity and effect as a handwritten one.

UETA covers recognition of electronic records and signatures (§ 7), attribution of a signature to a person (§ 9), notarization (§ 11), record retention (§ 12) and transferable records (§ 16). State versions differ in numbering and exclusions, so check the enacted text.

Under 15 U.S.C. § 7002, a state can modify ESIGN’s general rule only by enacting UETA as approved in 1999, or by adopting consistent, technology-neutral procedures. So ESIGN still sets the floor, and UETA does not simply replace it.

What is excluded?

ESIGN does not apply to the items below. That does not automatically make an e-signature invalid, because other law may still allow it, but you cannot rely on ESIGN for them.

• Wills, codicils and testamentary trusts
• State law on adoption, divorce and other family-law matters
• Most of the Uniform Commercial Code, other than Articles 2 and 2A and certain sections
• Court orders, notices and official court documents
• Notices cancelling or terminating utility services
• Notices of default, acceleration, repossession, foreclosure, eviction or right to cure on a primary residence
• Notices cancelling or terminating health or life insurance benefits, excluding annuities
• Product recall notices and notices of material failures that risk health or safety
• Documents that must accompany the transport or handling of hazardous materials, pesticides or toxic materials

When must a consumer consent?

Section 7001(c) applies where a law requires information to be given to a consumer in writing. Before you deliver it electronically, the consumer must affirmatively consent after a clear statement covering their right to paper copies, how to withdraw consent, the scope of the consent and how to update contact details. You must also state the hardware and software needed, and the consumer’s electronic consent must reasonably show they can access the format.

Section 7001(c)(3) says failing to obtain electronic consent in that way does not by itself void a contract. Other parts of the consent rules still matter, so get advice on regulated consumer disclosures.

Is a typed name or a click enough?

It can be, but context decides. In Cloud Corp. v. Hasbro, 314 F.3d 289 (7th Cir. 2002), a sender’s name on an email satisfied the statute of frauds. In J.B.B. Investment Partners v. Fair, 232 Cal. App. 4th 974 (2014), a printed name at the end of an email was not a signature on that record, because intent to sign the settlement was not shown.

A click can bind someone if the page gives reasonable notice that clicking means agreement. In Sgouros v. TransUnion, 817 F.3d 1029 (7th Cir. 2016), the page did not, and the agreement failed. So design the signing step to make intent obvious.

What should you keep?

Section 7001(d) allows electronic retention if the record accurately reflects the information and stays accessible for the required period. To prove a signing later, keep what shows who signed, when and what they saw:

• The final signed document and a tamper-evident seal or hash
• Signer identity evidence, such as verified email, login or multi-factor checks
• A time-stamped audit trail of views, consent and signature
• The consumer consent record, where one was required
• A copy of the disclosure text and the signing page as shown at that time

Does this cover notarization?

Section 7001(g) and UETA § 11 let a notary use an electronic signature, but they do not themselves authorize remote appearance. Remote online notarization depends on state notary law, so check the state involved. Some states also have separate electronic wills statutes.

Frequently asked questions