FAQs: Paperless Transactions

Q: Do you have to agree to use or accept e-signatures or e-records?
A: No. But if you choose to do so, or use them in forming a contract, it will now be legal in all fifty jurisdictions.

Q: Does E-SIGN affect any laws not related to electronic transactions?
A: No. All rights and obligations provided by statute or regulation still apply, including state and federal laws prohibiting deceptive trade practices, proximity requirements for warnings and disclosure requirements.

Q: Can contracts and other records required by law or by the Division of Real Estate to be stored electronically, even if the law requires an original to be kept?
A: Yes. However the information in the record must be retained accurately and must be accessible and capable of being accurately reproduced.

Q: Can I notarize a contract electronically?
A: yes. If the law requires a signature or record to be notarized, acknowledged, verified or made under oath, the requirement is satisfied if the e-signature of the notary, together with all other information required by law to be included, is attached to or logically associated with the e-signature or e-record.

Q: Can I rely on an electronic agent?
A: Yes. A contract may not be denied legal effect, validity or enforceability solely because an electronic agent is used in its formation, creation or delivery so long as the action of the electronic agent is legally attributable to the person to be bound.

Q: May a transferable record be in electronic form?
A: Yes. However, transferable records must meet stringent requirements for setting up a system and demonstrating that a person has control of such a record.

Q: Will E-SIGN apply regardless of UETA?
A: No. Ohio’s adopted version of UETA applies to the extent it is not inconsistent with E-SIGN.

Q: Can my business provide consumer disclosures electronically?
A: Yes, if a consumer consents to receiving the disclosures electronically and has not withdraw his or her consent. Be aware that the laws establish specific procedures for consent.

Q: How do the laws affect regulated industries?
A: The laws do not affect the rulemaking authority of federal or state regulators, which are specifically granted the authority to interpret the laws under their current rulemaking authority provided that any regulations are consistent with–and don’t add to–the laws and provided in addition that any regulations are substantially equivalent to regulations imposed on paper.

Q: Can regulators require me to use a specific technology?
A: Yes. An agency may require use of a specific technology if it serves an important government objective and use of the technology is substantially related to achieving that objective. In addition, when requiring that contracts or records be maintained, regulators and agencies may establish performance standards to assure their integrity. A regulator may not require use of a particular type of hardware or software.

Q: Can regulators still require records to be kept on paper?
A: Yes, if there is a compelling governmental interest relating to law enforcement or national security and the requirement is essential to achieving that interest.

Q: Do agencies need to comply with consumer consent requirements?
A: Not always. Regulators may exempt a specified type of record from E-SIGN’s consumer consent requirements if an exemption is needed to eliminate a substantial burden on e-commerce and will not increase the material risk of harm to consumers.

Q: When do e-record retention requirements take effect?
A: March 1, 2001 and the effective date may be delayed until June 1, 2001 if a rulemaking proceeding for establishing performance standards has at least been announced.