Time and Space – E-Signatures and the Fourth Dimension

I was in Spokane, Washington earlier this summer to discuss court usage of ECM and Electronic Signature. As it so happens, the hot news there was a recent ruling by a Superior Court judge, striking down the local photo-enforced red light citation program. Now, feelings and opinions run strong on the merits of using photo-enforced traffic citations; and far be it for me to get involved in that discussion here. Nevertheless, there is a very significant legal principle involved in this discussion that relates to Electronic Signature in a major way.

Spokane’s photo-enforced red light citation program is operated and administered by a vendor. Spokane police officers review the system-generated information, including photos. Upon determining a violation, a citation is electronically signed with the officer’s signature and printed by the vendor in Arizona. A Spokane judge ruled that the citations are invalid, not because the electronic signatures are invalid (they are valid in Washington; indeed, they are valid just about everywhere), but because they were not “signed” in Spokane.

In totally unrelated news (well, not TOTALLY unrelated, as it turns out), just a few days prior to this, while President Obama was in Europe, Congress passed an extension of the Patriot Act. To prevent the Patriot Act from expiring, the President had to sign it before he was due back from Europe. The added wrinkle was that for Constitutional reasons, it had to be signed in the United States. To accomplish the signing in a timely and Constitutional manner, the President authorized the use of a mechanical autopen. White House Legal Counsel concluded that signing by autopen satisfied the legal requirements, saying “we emphasize that we are not suggesting that the President may delegate the decision to approve and sign a bill, only that, having made this decision, he may direct a subordinate to affix the president’s signature to the bill.” (The entire opinion is available at http://www.justice.gov/olc/2005/opinion_07072005.pdf.)

See the connection? In both instances, the legal conclusion upheld the position that the signature was applied when and where it was affixed to the document, as opposed to when and where the document and contents were approved and signature was directed.

My crystal ball tells me there is going to be more to this story. In both real-world cases, political forces are challenging the conclusions (mainly for political reasons, true; but the legal aspects are necessarily involved in the debate). The point is, there are some very significant legal principles involving e-signature here, not limited to particular technological implementation.

For courts, some of these may become particularly important (witness the Spokane case). Questions of where, when, and by whom judicial signatures are deemed effective under existing statutes, administrative rules, court rules, policies, and procedures might be ripe for review.

Electronic signatures can provide courts with great flexibility and capability. As these examples from recent news demonstrate, there will increasingly be a premium on a carefully planned and implemented legal foundation to effectively support court use of electronic signature.

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