Washington's Electronic Signature Act: An Anachronism in the New Millennium

Article excerpt

Abstract: Today, electronic contracting is at the forefront of how consumers, governments, and businesses conduct their affairs. Over the last several decades, electronic contracting has taken on new forms that have raised doubts about contract formation and enforceability. In order to facilitate commerce, the federal government and forty-nine states have responded by passing legislation that gives broad legal recognition to electronic signatures. Washington State is currently the only state that has not updated its electronic signature statute to comport with modern technology and ways of doing business. As a result, Washington's Electronic Authentication Act is likely preempted by federal law, and it presents an uncertain environment for electronic contracting. This Comment argues that Washington should join the overwhelming majority of states in adopting the Uniform Electronic Transactions Act to optimize its statutory framework for facilitating electronic contracting.

INTRODUCTION

Unique like a thumbprint, pen-and-paper signatures have historically been essential to creating binding legal documents and commercial transactions.1 Today, the forms that modern signatures take would be unrecognizable to our great-grandparents' generation. The modern pledge may now be made by sending an email, clicking a button on a website, or using sophisticated asymmetric cryptography technology, among others.2

Congress and state legislatures have tried to keep pace with this technology in order to create parity between electronic and pen-andpaper signatures.3 Around the mid-1990s, states began adopting laws giving legal recognition to various forms of electronic signatures.4 States like Utah5 and Washington6 only narrowly recognized "digital signatures" that followed specific security protocols to confirm a signer's identity.7 Other states took a broader approach and gave legal recognition to any type of electronic signature.8 In response to this patchwork of state laws, the Uniform Law Commission issued a model state law in 1999, the Uniform Electronic Transactions Act (UETA),9 which broadly recognized all kinds of electronic signatures.10

Despite the promulgation of UETA, the federal government feared that states would be slow to adopt UETA, and it sought to speed the adoption of a uniform, nationwide law.11 In 2000, Congress passed the Electronic Signatures in Global and National Commerce Act (ESIGN),12 which gives broad legal recognition to electronic signatures13 and governs all interstate and international electronic transactions.14 While ESIGN borrowed similar concepts and provisions from UETA, the two are not identical.15 For example, ESIGN adds heightened consumer consent requirements,16 but it lacks other guidelines found in UETA, such as provisions regarding attribution disputes.17 In light of these similarities and differences, Congress added a unique preemption provision to ESIGN: a state that enacts the official version of UETA is exempt from federal preemption under ESIGN; a state that enacts anything other than the official version of UETA is preempted to the extent that the law either conflicts with ESIGN or prefers certain technologies over others.18

To date, all states have enacted UETA except for Illinois, New York, and Washington.19 Washington's law was originally drafted to give legal effect to digital signatures20-a subset of electronic signatures that uses specific, secure technology-and it has been amended only superficially to incorporate all types of electronic signatures.21 While Illinois22 and New York23 have laws that more closely mirror UETA and ESIGN respectively, Washington's Electronic Authentication Act (WEAA) remains a relative outlier; this outlier status creates uncertainty as to whether the statute, if challenged, would survive a preemption analysis under ESIGN. Of particular concern to UETA advocates is that Washington State-home to such e-commerce pioneers as Amazon.com, Microsoft, and Expedia-trails behind all other states in its electronic signature laws. …

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