Ricci ipshan, Legaltech News
While the regulation streamlines
e-signature processes, lawyers will still have to navigate technical challenges
and national laws.
On July 1, EU regulation No 910/2014, commonly known as eIDAS, came into effect, streamlining e-signatures and e-verification for
business transactions across the continent. Yet the regulation is complex and
has far-reaching effects for legal professionals and legal tech vendors alike.
Here are three aspects of the regulation of which legal professionals should be
aware:
Lawyers Don't Sign, They Seal
One of eIDAS' most impactful changes is its redefining of e-signatures,
which now cannot be used by legal professionals for approving documents signed
by a client. Instead, they will have to use e-seals to verify the integrity and
origin of documents. While e-seals can only be issued to legal professionals,
third parties can also execute them on behalf of an attorney.
"The regulation creates evident distinction between an actual person
and a legal person, and between the implication of the e-signature, whether it
is a certificate and thus confirming the documents' content or an e-seal and is
confirming the validity of the document," Michael Fauscette, chief
research officer at G2 Crowd said.
He added that its intent was to clarify "the standing of the person
e-signing the document, so it is clear that they are either signing as an
actual person and thus creating a certificate and certifying to the content of
the document."
Technical Barriers
Given eIDAS' lack of technical standardization, executing and certifying an
e-signature is a process that can be riddled in inefficiencies. Under the
regulation, for example, certificates may be encrypted and stored on separate
physical devices from the e-signatures.
Dan Puterbaugh, associate general counsel for Adobe Systems Inc., previously told Legaltech Newsthat "it's almost most easily understood as a notary-like process. In
order to get that digital certificate in the most classic sense, you would
actually show up at someone's office" to verify your identity.
There is also no standard way of executing an e-signature under the
regulation, Puterbaugh said. "An electronic signature could be anything.
You could be checking a box, it could be an image of your signature."
"While the regulation simplifies the legal environment of the
e-signature, it creates some complications for the underlying technology of the
e-signature platforms and the systems that are an integral part of the
e-signature process," Fauscette added.
This includes "enterprise systems like sales force automation and
human capital management, and desktop productivity tools like word processing
software, and various document format readers ... The lack of standards creates
a technical mess with multiple protocols, languages, formats, definitions,
etc."
He noted however, that "there is currently an initiative that was
started by Adobe Systems in response to the eIDAS regulations, called the Cloud Signature Consortium, to address the need for standards. The goal is to draft a new set of
technical standards that all 13 companies agree to, by the end of this year."
Legal Standardization—with Many Caveats
While eIDAS standardizes all e-signature definitions and models that
electronic identity and trust service providers must follow, there is a lot of
room for variance of the application of e-signatures within each member state.
Member states can impose and regulate other types of trust services and
e-signatures that go beyond eIDAS for use within their national borders, for
example, though anything beyond the scope of the regulation would not apply
EU-wide. The types of e-signatures required for legal and business processes
can also vary from country to country.
"Something to consider is that restrictions or exclusions of the usage
of e-signatures are typically not part of e-signing regulations, directives or
laws," Bob Larrivee, chief analyst at AIIM, previously told Legaltech News.
And while eIDAS mandates the non-discrimination and legal admissibility of
electronic signatures, seals, time stamps and delivery services, courts may
discard electronically validated documents if, under their own national laws,
said documents cannot be signed or approved in electronic format.
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