a provision that is similar to New York’s
in encouraging a unique identifier such
as a “PIN, digital signature, smart card,
or biometric.” (A biometric is a physical
characteristic that can be expressed as
data, such as a fingerprint, face shape,
retina, or DNA.) The lack of specific
technology choice, however, leaves
the specific option for a unique identifier up to the user. The open-ended approach could be valuable in the future,
given the explosive growth of hackers
creating mathematical algorithms that
can easily generate and quickly test
millions of password combinations,
thereby making PINs less secure. Illinois adopted a similar provision in its
Electronic Commerce and Security Act.
While ECSA adopts much of UETA,
Illinois also deliberately avoided the
UETA definition of an electronic signature, instead using a definition that
identifies an electronic signature as
any signature in electronic form that
is attached to a document. Neither the
terms “signature” nor “document” are
defined, and elsewhere in the law provisions prohibit any use of an electronic
signature that could be inconsistent
with the Legislature’s intent. Later case
law in Illinois clarifies an electronic signature as “signing an /s before a name”
or a scanned copy of a signature.” 13 Illinois case law regarding this definition
still leaves some confusion because a
document is also deemed to be signed
when uploaded into a court’s electronic
filing system. 14 Illinois’s approach thus
fails to settle the problem the Court
found in Neuson of determining when a
document that is electronically signed
can be relied on as consent — a problem
that was solved by New York and Texas
with the use of unique PINs, biometrics,
or other identifiers attached to an electronic signature granting consent.
Through this example of Neuson,
it is clear that Washington has been
able to watch and learn as other states
struggle with and, in some cases, solve
problems identified by the Washington
Supreme Court and the committee that
originally reviewed UETA.
Satisfying the Legislature’s
Intent and Concerns Raised
Given the previously discussed nation-
al regulatory framework in the area of
electronic signatures, Washington has
isolated itself and combined the worst
of both worlds in the 18 years since the
state’s first foray into this area of law.
Had the state not adopted the WEAA
in 1996, the federal ESIGN would pre-
vail when questions related to elec-
tronic signatures reached our courts.
The WEAA’s narrow digital signature
requirements with specifications of cer-
tifying authorities were what Congress
hoped to avoid. And had Washington
not amended the WEAA in 1999 to in-
clude a UETA definition of electronic
signatures without any other clarifica-
tion or incorporation into the existing
regulatory framework, those trying to
do business in Washington could, at
least in theory, incorporate decisions
from other states and use the develop-
ing body of law given UETA’s near-total
adoption by the rest of the country.
By passing a technology-specific
law and then updating it only superficially, Washington has left the question of electronic signatures in limbo.
This was understandable in 1999,
when no one could have foreseen the
ways electronic signatures would permeate our lives. The committee’s cautions of that time were, in fact, proved
right for the most part. It is unfortunate, however, that the ensuing
search for a perfect solution allowed
confusion and paralysis to develop in
an area of law that is so vital to every
citizen’s rights and protections.
Washington would benefit from the
consistency, clarity, and emphasis on
state consumer protection laws that
adoption of UETA would provide. The
Washington Legislature has already
ratified a purpose and construction that
closely mirrors UETA. And Washington
courts have outlined the importance of
unique identification and consent, two
problems that states adopting UETA and
its principles have solved. Adoption of
UETA, or a state statute that closely mirrors its provisions, is thus consistent with
what we know of legislative intent and jurisprudence in this otherwise poorly defined area. Further, ESIGN’s issues with
preemption would leave the problems of
Neuson unaddressed, and fail to provide
clarity and consistency across state lines,
as the example of Illinois shows. A move
to UETA, or adoption of a similar state
statute, would provide security, consis-
tency, and the ability to anticipate likely
outcomes to the individuals, businesses,
and, of course, lawyers who use electron-
ic signatures every day. NWL
business owners in state agency
hearings. She worked as a writer
and assistant editor at newspapers
in the Midwest before attending
Indiana University Maurer School
of Law-Bloomington, where she
graduated in 2007. She can be
reached at liz@washington
1. Uniform Electronic Transactions Act 7A
ULA 225 (2002).
2. Washington Electronic Authentication
Act, ch. 250, 1996 Wash. Sess. Laws 1190
(codified as amended at Wash. Rev. Code §
3. Epstein, Julian. “Cleaning Up a Mess on the
Web: A Comparison of Federal and State
Digital Signature Laws,” 5, New York University Journal of Legislation and Public Policy
4. Curry, Stephanie, “Washington’s Electronic
Authorization Act: An Anachronism In The
New Millennium,” Washington Law Review,
vol. 88 No. 2 (2013).
6. Found at Statistic Brain http://www.statistic-brain.com/social-networking-statistics/ last
checked May 12, 2014.
7. 160 Wash. App. 786, 249 P. 3rd 1054 (2011).
8. Id at 796.
9. Supra n. 1.
10. Lillie, Stephanie, Note, W”ill ESIGN Force
States to Adopt UE TA?,“ 42 Jurimetrics J. 21,
11. Shepherd, Ritchenya A. “New Electronic
Signature Law Still Has Bugs To Work Out,”
N. Y. L. J., July 6, 2000, at 5.
12. Supra n. 3.
13. Johnson v. Cherry, 422 F3d 540 (7th Cir.