THE LAW PERTAINING TO THE USE OF ELECTRONIC SIGNATURES AND RECORDS BY MASSACHUSETTS STATE AGENCIES
The purpose of this document is to provide agency counsel with guidance on legal issues raised by state agencies' use of electronic signatures and records. From modest beginnings in the 1960s, information technology (IT) systems are now a pervasive part of Massachusetts state government's internal operations. Agency counsel must become actively involved in advising state agencies about the legal issues raised by the use of electronic signatures and records.
The good news for agency counsel is that the legal issues raised by electronic signatures and records are well within the grasp of any qualified attorney. While the technical jargon that inevitably surrounds any IT project can seem like a serious barrier to understanding, the guidance provided in this document should enable any state lawyer to grasp the legal implications of a particular online system and to counsel their agency accordingly. Common sense, critical thinking, an awareness of evolving and established law, and a willingness to enter a dialogue with IT staff are all that is necessary for agency counsel to add value to the design, implementation, and operation of IT systems.
At the same time, agency counsel should play a leadership role in their agencies by encouraging a careful and deliberate analysis of legal and other issues prior to the agency's transition to use of electronic signatures and records. The development of any electronic signature or record system used by state government implicates not only technology and the law but also the agency's programmatic or business requirements. The Commonwealth's lawyers must work closely with agency technical and business staff throughout the electronic system development process to ensure that the agency takes a coordinated approach to system development that respects the equal importance of the legal, technical and business components of system development.
II Are Electronic Signatures Or Records Used By A Massachusetts State Agency Valid?
A. If the Signature or Record is Governed by a Control Agency, the Agency needs the Approval of the Control Agency to use an electronic signature or record.
The threshold question that agencies must address, prior to considering the validity issues discussed below in sections II B through II E, is whether the use of the signatures or records in question is governed by one of the Commonwealth's control agencies. (In this paper, we use the term "control agency" to refer to an agency within the Executive Office for Administration and Finance which has statutory authority over the activities of other agencies). If so, the signature or record is not valid unless the agency with oversight of the activity approves the use of electronic signatures and records, and any further legal analysis along the lines described in this document is irrelevant with respect to them. For example:
- The Office of the State Comptroller has not yet approved the use of electronic signatures (including emails) for any fiscal obligations. Fiscal obligations would include any obligation of commonwealth funds, including signature of contracts (including grants and Interdepartmental Service Agreements), contract amendments, and state accounting system (MMARS) fiscal transactions (i.e., encumbrances, payment vouchers or other MMARS transaction forms).
- The Operational Services Division has not yet approved the use of electronic signatures or solely electronic responses for large procurements (exceeding $50,000).
- The Human Resources Division has not yet approved entirely electronic time reporting for employees. Although timesheets may be entered electronically, final approval of time reporting must be granted using a wet signature.
- The Secretary of the Commonwealth has not yet approved the use of electronic notarization by Massachusetts notaries.
Many agency signatures and records are not subject to control agency jurisdiction. Their validity should be assessed based on the legal analysis set forth in sections II B through II E below.
B. Prior to Enactment of Commonwealth's Version of the UETA, State Agency Procurement-Related Signatures and Records are Valid under the Federal E-SIGN Law, and State Agency Transactions with the Federal Government are Valid under the Federal GPEA.
The Federal government, and many states (not including Massachusetts) have enacted laws that give electronic signatures and records used in government transactions the same validity as paper records and signatures. At the Federal level, the Government Paperwork Elimination Act, or "GPEA", P.L. 105-277, sec. 1701-1710, codified at 44 U.S.C. sec. 3504, validates electronic signatures and records used in Federal government transactions. At the state level, the Uniform Electronic Transactions Act (UETA) validates electronic signatures, contracts and records for government transactions. The UETA has been adopted in various forms by 37 states, other than Massachusetts, as of the date of this document. The Electronic Signatures in Global and National Commerce Act ("E-SIGN"), P.L. 106-229, 114 Stat. 464 (2000) (codified at 15 U.S.C. § 7001 et seq.), effective on October 1, 2000, validates electronic signatures, contracts or other records relating to any transaction in or affecting interstate or foreign commerce, including those entered into by government agencies. Agency counsel should familiarize themselves with both E-SIGN and UETA, both of which broadly validate the use of electronic records and signatures. E-SIGN does not address government signatures and records used for purposes other than procurement.
Under E-SIGN, for purposes of signatures or records related to state procurement, an "electronic record" is a contract or other record created, generated, sent, communicated, received, or stored by electronic means (E-SIGN sec. 106(4); 15 U.S.C. sec. 7006(4)), and an "electronic signature" is an electronic sound, symbol or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record. (E-SIGN sec. 106((5); 15 U.S.C. sec. 7006(5)).
With certain exceptions *3, E-SIGN provides that in interstate or foreign commercial transactions a signature, contract, or other record relating to such transactions may not be denied legal effect, validity, or enforceability solely because it is in electronic form. Because E-SIGN is limited to commercial activity, it does not apply to many government transactions. However, it clearly applies to state government transactions related to procurement, and validates electronic signatures and records used by state governments in connection with such transactions. The Federal Office of Management and Budget's guidance with respect to E-SIGN, available at http://www.whitehouse.gov/omb/memoranda/esign-guidance.pdf, states that government entities are encouraged, but not required, to accept electronic signatures and records in the procurement and contracting process *4. (Note the limitations on Massachusetts state agency use of electronic signatures and records in connection with procurement addressed in section IIA above).
C. For all other Purposes, Absent a Massachusetts State Law or Regulation to the Contrary, an Agency's Electronic Signatures and Records are Valid.
Unlike states that have enacted UETA, Massachusetts lacks black-letter law generally validating electronic signatures and records used in government transactions. This does not mean that electronic signatures and records are invalid in Massachusetts; to the contrary, Massachusetts' common and statutory law strongly suggests that state agencies are authorized, absent a specific statutory or regulatory requirement for a "written signature", or a prohibition against electronic signatures or records contained in state law or regulations, to use electronic signatures and records.
In that no Massachusetts black letter law generally validates electronic signatures and records used by state government, agency counsel seeking to determine whether electronic signatures or records used by their agency will be valid must review the state laws and regulations governing that activity. In interpreting those statutes, agency counsel should refer to the general definitions section of the General Laws, set forth at Mass. Gen. L. ch. 4, sec. 7, cl. 38. Under this provision, if a "written" record is required by the state statute requiring the signature or record, the terms " written" and " in writing" shall include printing, engraving, lithographing and any other mode of representing words and letters. Absent a statute more specific to the agency transaction at issue prohibiting use of electronic records, this language would appear to clear the way for agencies to use any form of electronic record.
The general definitions provision also states that, " if the written signature of a person is required by law, it shall always be his own handwriting or, if he is unable to write, his mark." Therefore, if a statute requires an individual's "written signature', a traditional "wet" signature is probably required. If a statute does not preface the word "signature" with the word "written", any electronic signature properly authenticating the individual and showing his intent to sign will probably suffice. By the same token, if the term "written signature" does not appear in the state statute authorizing or requiring the agency activity at issue, any electronic record or signature is probably valid *5.
In summary, absent some specific statutory or regulatory language to the contrary, electronic signatures and records used by state agencies and showing the signer's identity and intent to sign are probably valid.
Massachusetts courts' acceptance of non-traditional signatures in a number of different contexts further supports the assertion that they will find electronic signatures, contracts and other records used in connection with Massachusetts state government's non-procurement activities valid. See Providence Granite Co. Inc. v. Joseph Rugo, Inc., 362 Mass. 888, 889 (1972)(telegram was a "writing" under the Statute of Frauds sufficient to indicate that a contract for sale had been made … and signed); Commonwealth v. Johnson, 32 Mass. App. Ct. 355, 356-357(1992), rev. den. Commonwealth v. Johnson, 412 Mass. 1105 (1992)(stamped facsimile signature of a notary public was admissible, and was "not inherently less reliable" than a "wet" signature); Doherty v. Registry of Motor Vehicles, Suffolk Co., Dist. Ct, 1997, (Agnes, J.), 97CV0050, (where state law required that state trooper make written report to RMV signed under the pains and penalties of perjury, trooper's e-mail to RMV sufficed); Shattuck v. Klotzback, Plymouth Superior Court, 2001, (Murphy, J.), (C.A. No. 01-1109A)(purchase and sales agreement negotiated via e-mails containing the typed signature of the seller satisfied Statute of Frauds); I. LAN Systems, Inc. v. NetScout Service Lever Corp., 183 F. Supp. 2d 328 (D. Mass. 2002)(software license click-wrap agreement valid under Massachusetts law).
Furthermore, even in cases in which the validity of electronic records was not at issue, Massachusetts courts have tended to treat electronic records as the equivalents of their paper analogues. See, e.g., JMTR Enterprises et al. v. Duchin et al., 42 F. Supp. 2d 87, 95-96 (D. Mass. 1999) (Massachusetts long arm statute satisfied when foreign defendant conducted negotiation through mail, e-mail, facsimile transmissions, and phone calls sent into Massachusetts and visit by agent to Massachusetts); Boudreau v. Scitex Corp., Ltd., 1992 WL 159667 (D. Mass. 1992) (foreign corporation negotiating contract with Massachusetts resident through e-mail, facsimile transmission and phone was transacting business in Massachusetts for purposes of long-arm statute); Globe v. Evans, Suffolk Super. Ct. Civil No. 97-4102E (Mem. and Order on Pl .'s Mot. for Preliminary Injunction dated Nov. 26, 1997) (Grabau, J.) (police record stored in electronic filing system, including incident reports, were within CORI public records provision, because similar to police daily logs or arrest registers); Globe Newspaper Co. v. Conte (Mass. Super. 2001)(Hinkle, J.)(Mem. of Dec.) 2001 WL 835150 (public record exists where information stored electronically); Linnen et al. v. A.H. Robins. Co., 1999 WL 462015(Mass. Super. Ct. 1999)( J. Brassard)(discovery request aimed at production of records retained in electronic form no different than request for documents contained in file cabinet); Commonwealth v. Ellis et al., 1999 WL 815818, 2 (Mass. Super. 1999)(Bohn, J.)(search and seizure of electronic data and records of defendant within scope of search warrant).
D. When Enacted, UETA will validate Most Electronic Signatures and Records Used by State Agencies.
Agency counsel should know the broad parameters of UETA because it is likely to become law in Massachusetts, and even before its enactment it could well be looked to by the courts as a clear statement of the majority view on electronic signatures or records.
Under the UETA, a "record" is information inscribed on a tangible medium or that is stored in an electronic or other medium and retrievable in perceivable form (ergo, an electronic record is one stored in an electronic form and retrievable in perceivable form). UETA Section 2(13). The term "electronic" is defined under UETA to mean relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar properties. UETA Section 2(5). UETA will validate all state agency electronic signatures and records created after the effective date of the Massachusetts UETA. UETA, 2(16), 4, 7.
Among UETA's major provisions are:
- UETA applies to "transactions," defined as "an action or set of actions occurring between two or more persons relating to the conduct of business, commercial, or governmental affairs." Thus, UETA's application is considerably broader than E-SIGN, which applies only to interstate commercial transactions.
- With respect to business, commercial, and governmental transactions, UETA provides that: a signature or record may not be denied legal effect or enforceability solely because it is in electronic form; a contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation; if a law requires a record to be in writing, an electronic record satisfies the law; and if a law requires a signature, an electronic signature satisfies the law.
- UETA applies only to transactions that the parties have agreed to conduct electronically. Under no circumstances are parties required to conduct transactions electronically, and parties may by agreement opt out from UETA's provisions. Parties may also vary, waive, or disclaim most of the provisions of UETA by agreement. Thus, UETA merely provides a set of default rules that apply only if not addressed by the terms of an agreement.
- UETA does not attempt to create a new system of rules for electronic transactions. Rather, UETA seeks to make sure that electronic transactions are as enforceable, but no more enforceable, than transactions conducted by traditional means. UETA does not change any of the substantive rules of law that otherwise apply to transactions and the rights of parties.
- UETA does not apply to: transactions relating to the creation and execution of wills, codicils, or testamentary trusts; Articles 3 through 9 of the Uniform Commercial Code; the Uniform Computer Information Transactions Act; and other laws, if any, identified by the state when it enacts UETA. Although UETA allows enacting states to specify state laws that are not subject to UETA, states that attempt to exempt transactions relating to interstate commercial transactions will likely run afoul of E-SIGN's preemption provisions.
E. Agency Electronic Signatures and Records Should Comply with the E-SIGN and UETA restrictions on form and retention.
Both E-SIGN and UETA require that:
- If a statute, regulation or other rule of law requires that the record be retained, the state agency must retain an electronic record of the information in the record that (1) accurately reflects the information set forth in the contract or other records, (2) remains accessible to all persons who are entitled to access by statute, regulation, or rule of law and (3) is retained for the period required by such statute, regulation, or rule of law. E-SIGN sec. 101(d)(1); 15 U.S.C. sec. 7001(d)(1); UETA section 12.
- If notarization, acknowledgment, verification or oath is required for a document, the electronic signature of the person required to perform such acts together with all the other information required to be included by law, must be attached or logically associated with the electronic record. E-SIGN 101(g); 15 U.S.C. sec. 7001(g); UETA section 11.
- If law requires retention of a check, that requirement is satisfied by the retention of an electronic record of the information on the front and back of the check in accordance with accuracy and accessibility requirements. E-SIGN 101(f); 15 U.S.C. sec. 7001(f); UETA sec. 12(a),(e).
- Laws regarding proximity of notices, warning, disclosure, or other record required to by posted, displayed or publicly affixed are not affected by E-SIGN. E-SIGN sec. 101 (d)-(e); 15 U.S.C. sec. 7001(d)-(e); see UETA sec. 8(d).
III General Legal Issues That Must be Addressed in Development of Systems Creating Electronic Signatures and Records.
Because most electronic signatures and records used by state agencies are highly likely to be found valid by the courts, the challenge for agency counsel is to move beyond mere validity and to ensure that the design and operation of an electronic record system meets the agency's business requirements, complies with all applicable laws, and allows the agency to produce admissible, credible evidence in any litigation or enforcement action.
A. Practical Questions and Agency Counsel Responsibilities.
In addition to the specific legal issues addressed below, agency counsel should become involved in answering the following practical questions with respect to systems used by their agencies to create electronic signatures and records, and should assume the following responsibilities.
Questions: While not exhaustive, the following list of issues and considerations should provide agency counsel with a sense of the factors that could affect the evidentiary weight, and thus the enforceability, of electronic signatures and records. Note that these issues and considerations are not appreciably different in substance from what agency counsel would want to know about a paper-based system, even if the way in which they are implemented is unique to the electronic environment.
- How does the agency ensure that information entered into the system is accurate?
- Is the system secure? Are there procedures in place to ensure that information in the system cannot be accessed by persons without appropriate authorization?
- Does the system provide an appropriate audit trail? An audit trail should document who used the system, when they used it, and what they did while using the system. A competent audit trail should permit an auditor to precisely recreate the sequence of events that led to the creation of the signature or record and all alterations thereto.
- Does the system capture all necessary information, including contextual information that can show who, what, when, why, and how? For example, if the system uses a "web form" to capture information, does it capture only the "answer" or does it link the "question" seen by the user to the "answer" provided by the user? If the time at which a transaction occurred could be relevant in litigation or an enforcement action, is this information captured by the system?
- Is it likely the agency will need to demonstrate the intent of a party to the transaction? For example, if the agency will need to show that a person "signed" an electronic transaction with an intent to be bound, it is important not only to use a secure electronic signature technology, but also to create a signature process that requires the person to take a series of conscious, deliberate actions that will demonstrate intent.
- Is the system's operation properly documented so that a judge, jury, or other third party can understand how information is captured, used, and stored by the system?
- Is the transaction or process historically the subject of attempted fraud, agency litigation, or agency enforcement actions? If so, a higher level of care is required.
- Is the information subject to legal privacy or confidentiality requirements? If so, greater attention should be given to security and confidentiality procedures.
- Does the agency have a contingency plan that will permit it to shift to exclusive use of paper transactions and signatures if electronic systems fail?
- Does the agency have a disaster recovery system in place that would permit it to recover electronic records and signatures when its primary IT system is destroyed?
- In cooperation with appropriate technical and business staff, conduct a periodic legal analysis of the agency's electronic signature and records systems, identifying areas where such systems fail to meet the standards set forth in this document.
- Counsel agency regarding legal impact of amendments to current system and adoption of new systems. Do amendments to existing IT systems, and new systems, meet the legal requirements outlined above?
- Train agency lawyers to recognize and deal with electronic signature and record legal issues identified in this document.
- Become familiar with agency IT operations related to creation, transmission and storage of electronic signatures and records.
- In cooperation with appropriate technical and business staff, conduct a periodic legal analysis of the agency's electronic signature and records systems, identifying areas where such systems fail to meet the standards set forth in this document.
B. Eliminate Superfluous Signatures and Documents.
Sometimes state agencies require the use of specific signatures or records in connection with agency transactions, not because such elements are required by law or regulation but because of agency custom. Agency counsel assisting agency technologists and business users in designing systems for the creation and maintenance of electronic signatures and records should determine whether the record or signature being contemplated is actually required by Federal or state law. If a signature or record is not required by law, absent some business or evidentiary reason for requiring the record or signature, the signature or record at issue is superfluous and should not be built into the information technology system being designed to support an agency transaction.
Agency transactions conducted via paper should be tailored to match the reduced steps included in the electronic process. In other words, if the agency decides, in the process of designing the information technology system that will support a transaction, that the signature formerly required in connection with a step in a permitting process was superfluous, the signature requirement should be eliminated from the permitting process both in its paper and its electronic form. Paper based business processes must be re-engineered to parallel the reduced number of steps, documents and requirements on which the electronic process is based. Otherwise, the agency will create an inequitable two-tier transaction structure that favors electronic users (and is therefore vulnerable to an accessibility or equal protection claim) and fails to meet accepted record keeping standards.
C. Ensure that Electronic Signatures and Records Meet Formal Legal Requirements for Paper Documents.
Both E-SIGN and UETA require that, in order to be valid, electronic signatures and records contain all of the features required by law for paper signatures and records. In connection with the development of information technology systems supporting the use of electronic signatures or records, agency counsel must identify and inform their clients of the formal legal requirements for the signatures or records, and ensure that they are built into the system. Statutes, regulations, common law and custom in the local legal community dictate the form of many agency signatures and records.
For example, an affidavit should always be labeled as such, include the statement that its contents are based on the signor's personal knowledge, and be signed under the pains and penalties of perjury. Other legal forms need to be notarized. Some state agency documents are required by law to contain prominent notices translated into several languages; these notices must be included when such documents are created electronically.
D. Ensure that the Electronic Signature or Records and All Relevant Information Will be Available When Needed
State agency electronic signatures and records will be useless unless they are available when needed in the future. Important information regarding electronic signatures, records and transactions must be collected, retained and accessible whenever needed despite changes to hardware and software. Important information includes the following and, in combination, constitutes the "record" of an event or transaction: (1) the content or substance of the record (i.e. text of contract); (2) information regarding the processing of a transaction (when and from where a communication was sent, and when and where received); (3) the identities of the parties and individuals involved in transaction (i.e. parties to contract) and (4) the intent of the parties (i.e. did parties intend to enter binding contract?). In other words, sufficient context must be preserved to make electronic records usable.
Agency counsel must involve themselves in inevitable technology change in their office to ensure that changes in hardware and software do not eliminate agency access to signatures and records stored on abandoned systems.
E. Ensure that the Electronic Signature or Record is Reliable
Agency counsel must ensure that the electronic signature or record is sufficiently reliable to satisfy courts and others who must determine facts underlying agency action. Counsel must ensure that documented systems are in place to ensure that the electronic signature or record is not altered after it is created. All records should be "locked" after creation so that they cannot be amended. Alternatively, if the document is not locked, the electronic system must create an audit trail showing all amendments made to the document after the date of creation, and by whom.
F. Ensure that the Electronic Signature or Record Complies with Laws other than E-SIGN and UETA
E-SIGN is not the only statute currently governing electronic signatures and records. Agency counsel must also ensure that electronic signature and record systems used by their agencies satisfy other state and Federal laws.
- Privacy and confidentiality laws
All information technology systems holding data subject to the Fair Information Practices Act, Mass. Gen. L. ch. 66A, must comply with automatic data collection requirements of that law. Data subject to the HCFA Internet Communications Policy must be transmitted in accordance therewith. In addition, in the near future agencies subject to the Health Insurance Portability and Accountability Act of 1996, P.L. 104-191, will have to comply with the already promulgated privacy regulations and soon to be promulgated security regulations issued by the U.S. Department of Health and Human Services under that law. Agency systems must also comply with other state and Federal privacy laws, regulations and policies.
- Accessibility laws
If the system faces the public (e.g. a publicly accessible Web page), it must comply with Federal and state disability laws, available at http://www.mass.gov/anf/docs/mod/disability-law-booklet.docx and the Commonwealth's Web Accessibility Standards. Note that the Commonwealth's Web Accessibility Standards apply to both external (Internet) and internal (Intranet) web sites. No state or Federal law currently requires that internal electronic systems used only by state employees be accessible, absent an employee's valid request for an accommodation. However, such requests are inevitable, and agencies are in a far better position to address accessibility issues during the development phase of a project than they are once a system is in production. Common sense suggests that agencies should, to the extent technologically feasible, build in accessibility at the design phase to eliminate the risk of a costly later alteration.
- Records Conservation
Agency systems must comply with the Records Conservation Law, Mass. Gen. L. ch. 30, sec. 42, including its restrictions on record destruction. Electronic records, like paper records, must be retained in a manner consistent with the agency's records disposition schedule, the Records Conservation Board's Records in Common Disposition Schedule, and any state or Federal laws or regulations requiring retention. Short and long-term storage of electronic records must comport with the Supervisor of Public Records' Bulletin No. 1-96, "Backing Up and Archiving of Electronic Records", available at
http://www.mass.gov/sec/arc/arcrmu/rmubul/bul196.htm. More specific information about records management with respect to electronic records is set forth in Part III of this document. Agency counsel must ensure that there is a business process, technology or combination thereof in place to satisfy all such requirements with respect to electronic records.
- State Library Preservation of Electronic Publications
Agencies must comply with MGL Chapter 6, section 39B requiring that state agencies provide copies of publications to the State Library. The State Librarian issued an Advisory on Electronic State Publications on December 19, 2001 offering agencies options to ensure the preservation and accessibility of electronic publications.
- Public Records Laws
The Commonwealth's Supervisor of Public Records has issued a number of bulletins addressed to the status of electronic records, each of which must be taken into account by agency counsel advising their clients about the legal requirements applicable to systems that will create or store electronic signatures and records. Agency counsel should read the Supervisor's Bulletins in their entirety; the excerpts below contain only some of their main points.
- SPR Bulletin No. 3-96, Application of Public Records Law to Electronic Records Access
This SPR, available at http://www.mass.gov/sec/arc/arcrmu/rmubul/bul396.htm, states, among other things, that the availability of information in the custody of Massachusetts governmental entities is dependent upon the substance of the information, rather than the form in which it is maintained. This means that records created or maintained on a computer are subject to the Public Records Law. This SPR also addresses the special obligation of the legal custodian of electronic records under the Public Records Law to ensure that the use of an electronic system does not impede citizens' rights to access government records; the creation of software programs for the purpose of creating new public records in response to public records requests; the custodian's duty to segregate exempt portions of electronic public records; prospective requests for public records, including on-line subscription or monthly updates of information; the status of software under the public records law; and the format and medium in which electronic records are produced to citizens under the Public Records Law.
- SPR No. 4-96, Fees for access and copying of electronic public records.
This SPR, available at http://www.mass.gov/sec/arc/arcrmu/rmubul/bul496.htm, addresses the special fee issues that arise in connection with the production of electronic records under the Public Records Law, including fees for computer searches; the prohibition against recovering from citizens making Public Records requests the cost incurred in developing a database or entering information in it; the custodian's duty to write software performing data segregation, without charging the requestor; circumstances under which the agency can charge a fee for writing software in connection with a public records request; and requests for on-line access to records or for a subscription service to electronic information.
- SPR No. 1-99, Electronic mail.
This SPR, available at http://www.mass.gov/sec/arc/arcrmu/rmubul/bul199.htm, describes electronic mail systems; defines e-mails as public record; addresses public access to e-mails under the Public Records Law; discusses the status of e-mail in discovery; addresses e-mail deletion; highlights differences between paper correspondence and e-mail with respect to records retention; notes that e-mails used in Commonwealth offices are government property; and asserts the Commonwealth's right to monitor and read employee e-mail.
- SPR Bulletin No. 3-96, Application of Public Records Law to Electronic Records Access
G. Ensure that the electronic signature or record will be admissible as evidence
If the electronic signature or record is in a category of documents often involved in litigation brought by or against the state agency, agency counsel must ensure that the electronic version of the signature or record will meet the evidentiary requirements for electronic records. The two principal legal issues that must be addressed are authentication and hearsay.
1. Authentication of Electronic Records under Massachusetts State Law.
All evidence must be the person or thing its proponent represents it to be. Proof of authenticity usually takes the form of testimony from a qualified witness that either (1) the thing is what its proponent represents it to be or (2) circumstances exist that imply that the thing is what its proponent represents it to be. Liacos on Massachusetts Evidence, (6th Ed.), Sec. 12.1.
Under Rule 44 of the Massachusetts Rules of Civil Procedure, an official record "kept within the Commonwealth, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having legal custody of the record, or by his deputy". The authentication of electronic signatures and records would appear to fall under the simple rule articulated for paper records, i.e., a copy of the electronic signature or record can be authenticated by having the state employee with legal custody of the record attest to its authenticity. Although, to date, no case has explicitly addressed the authentication of electronic records under these rules, proponents of electronic evidence have, as evidenced in the cases set forth below pertaining to the hearsay rule, successfully authenticated electronic records. Counsel should be prepared to authenticate electronic records simply through the testimony of the official in charge of the electronic system at issue.
2. Overcoming the Hearsay Rule with respect to Electronic Records Under Massachusetts Law.
The case law is more helpful in guiding agency counsel regarding the steps necessary to overcome the hearsay rule when introducing electronic signatures or records. The hearsay rule forbids admission in evidence of statements made outside of court and offered to prove the truth of the matter asserted. Liacos on Massachusetts Evidence, sec. 8.1.
Agency counsel seeking to overcome the hearsay rule with respect to the introduction of electronic record and signature evidence should first attempt to invoke the public records exception to the hearsay rule, created by Mass. Gen. L. ch. 233, sec. 76, which states that "copies of books, papers, documents and records in any department of the commonwealth or of any city or town, authenticated by the attestation of the officer who has charge of the same, shall be competent evidence in all cases equally with the originals thereof". Electronic state agency records that are (1) official records (2) of primary fact (3) made by a public officer (4) in the performance of his official duty will fall under this exception. See Liacos, Sec. 8. However, this rarely invoked provision has never been used in connection with electronic agency signatures or records suggests that counsel should be prepared to overcome the hearsay rule through the commonly used "business records" exception.
The "business records" exception is created by Mass. Gen. L. ch. 233, sec. 78 *6. In order to qualify as a business record, a record must be (1) made in good faith (2) in the regular course of business and (3) before the beginning of the civil or criminal proceeding where (4) it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. Mass Gen. L. ch. 233, sec. 78. The court, in its discretion may require the party offering the same to produce and offer in evidence the original entry and to call as his witness any person who made the entry or who has personal knowledge of the facts stated in the entry. Ch. 233, sec. 78. Admission of business records is allowed because of their presumed reliability, and reliability is presumed because entries in these records are routinely made by those charged with the responsibility of making accurate entries and are relied on in course of doing business. Commonwealth v. LaPlante, 416 Mass. 433 (1993). Where record evidence is admitted under this exception, the party opposing admission of the evidence still has the right to controvert the evidence of business entry so received, or to question credibility of the record, but this goes to weight of evidence and not to its admissibility. Brockton Hospital v. Cooper, 24 Mass. App. Dec. 138 (1962).
This statute has been invoked successfully for the purpose of excepting public records from the hearsay rule. See, e.g., Commonwealth v. Savageau, 42 Mass. App. Ct. 518, rev. den., 425 Mass. 1102 (1997)(probation records); Furtado v. Furtado, 380 Mass. 137 (1980)(probation records); Crowe v. Ward, 363 Mass. 85 (Mass. 1973) (public weather report). Moreover, Massachusetts courts have recognized that electronic records can be business records for evidentiary purposes. See Commonwealth v. Hogan, 7 Mass. App. Ct. 236, 250-251 (1979)(language of business records statute is sufficiently broad to include within its scope system of keeping records stored on a computer and electronically printed out on demand).
Furthermore, the fact that records are electronic per se is no bar to application of the business records exception; the possibility of computer error goes to weight, not admissibility, of evidence. In Commonwealth v. Hogan, supra, the Massachusetts Court of Appeals held that the scope of Mass. Gen. L. ch. 233, sec. 78 was sufficiently broad to include a system of keeping records stored on computer and electronically printed out on demand:
It is too late in the day to insist that evidence derived from a computer should be kept from a jury because it is "mysterious and remote from common experience," as the defendants insist. '[T]he scientific reliability of such machines [electronic computing equipment], in the light of their general use and the general reliance of the business world on them, can scarcely be questioned.' [Citations omitted]Hogan, 7 Mass. App. at 251, n. 13. In the same case, the court addressed the question of what kind of foundation was required to introduce such evidence. While sidestepping the question of whether the proponent of electronic evidence was required, in order to have the evidence admitted, to lay a special foundation showing the trustworthiness of the electronic system, the court concluded that evidence of the business user's reliance on the system constituted proof of such trustworthiness, while leaving open the possibility that the opponent of the evidence could seek to prove the reverse:
We do not believe it necessary to determine whether a special foundation requirement such as that suggested in United States v. DeGeorgia, 420 F.2d 889, 893 n.11 (9th Cir. 1969), should be imposed on business records stored in a computer. In that case the court stated that the offeror should present evidence of the trustworthiness of the computerized information but noted that everyday reliance on the information was an adequate indicium of trustworthiness. In the present case there was evidence from which routine reliance on the computerized records could be inferred, which could supply an adequate basis upon which to find these records trustworthy. If the opponent of computer evidence challenges it on the basis of, for example, the mechanical accuracy of the computer, it remains within the court's discretion under section 78 to require the provision of additional foundation testimony.Commonwealth v. Hogan, 7 Mass. App. Ct. 251, n. 15. See also Commonwealth v. Reed, 23 Mass. App. Ct. 294, 502 (Mass. App. 1986)(computer printout of store inventory falls under business record exception; reliability of computer system inferred from reliance placed on it by store in regular course of business); Commonwealth v. Garabedian, 8 Mass. App. Ct. 442, 446 (1979)(possibility that DOR computer might have erred went to weight of testimony and not to its admissibility).
Nor does the proponent of electronic evidence need to provide, for purposes of invoking the business records exception, personal knowledge by witness of facts contained in the electronic record or awareness of how the computer system worked, although the lack of such knowledge in the witness can go to the weight of the evidence. Rather, the proponent must show that an agency employee (or, presumably, agent) knew, supervised and relied on a reporting system on which printouts were based. Commonwealth v. Reed, 23 Mass. App. Ct. at 297-298. The reliability and trustworthiness of computer systems can be inferred from the reliance placed by agency management on the system by management in the regular course of its business. Reed, 23 Mass. App. Ct. at 299.
3. Federal Law on Electronic Records Admissibility.
The Federal Rules of Evidence explicitly address the admissibility of electronic records. FRE 1001 ("Writings" . . . consist of letters, words or numbers or their equivalent set down by . . . magnetic impulse, mechanical or electronic recording, or other forms of data compilation. . . An "original" . . . is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it . . . If data are stored on a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an original."). There is ample Federal case law in which Federal courts have accepted electronic records as evidence. See U.S. v. Vela, 673 F.2d 86, 89 (5th Cir. 1982); U.S. v. Scholle, 553 F.2d 1109, 1121 (8th Cir. 1977); U.S. v. Russo, 480 F.2d 1228 (6th Cir. 1973). For electronic evidence likely to be subject to Federal Rules of Evidence, the U.S. Department of Justice has issued excellent guidance at http://www.cybercrime.gov/searchmanual.htm, (See sec. V, Evidence). Agency counsel whose electronic signatures or records may become the subject of criminal litigation before the Federal courts should consult this document.
4. Uncharted evidentiary waters: Web pages as evidence
There is no case law in Massachusetts regarding Web site postings or other Web pages offered as evidence. But Web site postings offered as evidence in federal courts have met with considerable judicial skepticism. Weinstein's Federal Evidence, Sec. 901.08. See St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 774-775 (S.D. Texas 1999)(seagoing vessel ownership information posted to U.S. Coast Guard's on-line vessel database is "inherently untrustworthy" and "voodoo information", as is any other information posted on Web sites); U.S. v. Jackson, 208 F. 3d 633, 637 (7th Cir. 2000)(proponent of Web site information must prove authenticity by showing Web site sponsor actually posted information to Web site hosted by internet service provider and sponsored by white supremacist group, because information could easily have been "slipped onto" Web site by unknown sophisticated computer user).
The basis of courts' concern is their perception that it has been relatively easy to manipulate information posted to a Web site because of its electronic format and the accessibility of the Web site to an almost infinite number of computer users. Weinstein, id. See, e.g., Johnny's Oyster: ("No Web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation. . . Hackers can adulterate the content on any web-site from any location at any time".) Although Web sites are not as easily manipulated by third parties as courts appear to think that they are, they are, in many contexts, easy to manipulate from day to day by Web site owners and their employees. To overcome courts' concern that Web site pages are unreliable, agency counsel seeking to enter Web pages as evidence should introduce evidence of agency security procedures and technology that limit or eliminate the ability of unauthorized third parties to change state agency Web site pages.
Counsel need to consider a second problem that arises with respect to the use of Web pages as evidence. All prior cases appear to have been decided with respect to static Web pages. As the Commonwealth's use of the Web evolves, agencies and ITD are making increasing use of dynamically generated Web pages composed of data pulled from different servers at a particular time to create a particular Web page. Agency counsel must ensure that the data and systems that create dynamically generated Web pages that are likely to become the subject of litigation are saved in a format or system that will provide later proof of how such pages appeared on a certain day and time to visitors to a Web site. For Web pages that may become the basis of litigation, careful storage of pages or history of specific amendment to pages is required.
Finally, Web pages (or, in the case of dynamically generated pages, the data and systems from which they are created) can only be used in evidence where the owner has carefully documented the date, time and nature of each amendment thereto. Pages and data that have been altered, even by the owner in the regular course of business, since the date of the events pertinent to a case, and are not accompanied by a reliable audit trail indicating how they appeared on the date in question, are likely to be irrelevant and inadmissible.
H. Special Considerations for Electronic Signatures: "Authentication", Intent, Binding and Integrity.
There is little case law on the question of what kind of electronic signatures will pass muster with the courts. However, common sense and experience with the admissibility of signatures in the paper world suggest that any electronic signature or electronically signed record must meet some minimum requirements in order to be admissible. Electronic signatures and/or electronically signed documents must (1) authenticate the signor; (2) show the signor's intent to sign, (3) bind the signature to the document being signed and (4) assure the integrity of the document that had been signed *7. No single cost effective, easy to implement version of the "digital signature" or any other single technology achieving these four goals has yet been marketed or deployed extensively. However, agency counsel should work with their information technology professionals to ensure that these four goals for electronic signatures are met, to the degree possible, with respect to any electronic signatures and electronically signed documents used by the agency.
Authentication. Although E-SIGN and UETA's common general validity provisions provide a firm basis for the admissibility of electronic signatures and records, only UETA specifically addresses the question of when an electronic signature can be attributed to a person. Section 9(a) of UETA states:
An electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic signature was attributable.UETA, sec. 9. This provision highlights the importance of proper "authentication", as that term is used in the information technology field, of persons signing and creating electronic signatures and records. In the information technology field, "authentication" means methods used to identify a person. Authentication methods are always part of electronic signatures, but not all authentication constitutes a signature.
State agencies currently use a number of methods to "authenticate" individuals who create electronic signatures and records. The most common means is the use of a password and PIN number managed by the agency. Agencies can also use the Mass.gov portal's "shared security service", or S3, to authenticate individuals. Given that, under UETA, agencies will be able to use evidence of the "efficacy" of their authentication methods to prove that individuals used electronic signatures or created electronic records, agency counsel should ensure that the level of authentication provided by the agency's authentication method is adequate and that they understand and can prove to a court the "efficacy" of such systems.
Intent. It is not enough that an electronic system merely "authenticates" a user; for a document to be effectively signed electronically, the system must also capture the user's intent to sign a particular document. Web pages presented to the user for signature must make abundantly clear to users that the "click through" or other electronic signature method used is indeed a binding signature, and must clearly indicate the pages or data to which the user is agreeing when he or she signs electronically. If, prior to signature, the user has been presented with a series of Web pages full of information with blanks for him to fill in, the page on which his signature is requested must clearly identify the data entries the user is signing, and provide the user with the opportunity to review and correct his or her entries prior to signature. Poorly designed Web pages or other electronic interfaces that leave unclear the material that the user is signing will fail to create admissible evidence of the signer's intent.
Binding. Both E-SIGN and UETA require that electronic signatures be "attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record". E-SIGN, sec. 106(5); UETA, sec. 2(8). Agency counsel must work with their agency information technology staff to ensure that agency systems creating electronic records electronically bind the signatures used by agencies to the documents signed. Where Web-based agency process requires that data pertaining to records be stored on separate servers from those housing data pertaining to electronic signatures associated with the records, the agency must ensure that data captured or created by each server meets the various legal requirements discussed above and that there is some logical association or electronic link between the electronic signature and the record.
Integrity. Because of the ease with which electronic documents are altered, signed electronic records used by state agencies are virtually useless unless precautions are in place to ensure document integrity for as long as the document is held. Agency counsel must ensure that signed electronic records are immediately "locked" electronically after signature so that they cannot be tampered with.
Risk benefit analysis. While the foregoing are important, agency counsel should be careful to avoid seeking a "perfect" electronic signature that will perform miracles not attained by "wet" signatures in the paper world. A "wet" signature is a crude biometric at best, and an excellent indicator, in combination with the contents of the document signed, of the signor's intent, but is not perfect. Signed paper documents, like electronic ones, can be altered by the substitution of pages in a multi-paged document, and forged signatures are not unknown. Agencies considering the foregoing elements----authentication, intent, binding and integrity-should not become paralyzed in their search for an appropriate electronic signature method by the current lack of cheap, perfect electronic signatures. Rather they should assess the risks associated with the transaction requiring the signature and choose a signature method that addresses these four requirements to a degree commensurate with the risk of the transaction *8.
There is a wide range of published resources available on the Internet for agency counsels pertaining to electronic signatures and records. A few of those resources are available at ITD's Electronic Signatures, Contracts & Records page.
Agency counsel should consult the following resources for additional information on the legal issues arising out of the creation of electronic signatures and records.
- Association for Information and Image Management's Performance Guideline for the Legal Acceptance of Records Produced by Information Technology Systems, Parts I through IV, AIIM TR31-1992, a copy of which is available at the office of ITD's General Counsel
- ABA Digital Signature Guidelines, available at http://www.abanet.org/scitech/ec/isc/ds-ms.doc.
- Minnesota Trustworthy Information Systems Handbook
- The National Archives Administration's Records Management Guidelines for Agencies Implementing Electronic Signatures
CHECKLIST OF LEGAL ISSUES FOR AGENCY COUNSEL
- Is the Electronic Signature or Record My Agency Proposes to Use Prior to Enactment of the UETA Valid?
- NO if it falls under the jurisdiction of a Commonwealth control agency that has prohibited use of an electronic signature or record for the purpose at issue *9.
- YES if its use has not been forbidden by a control agency and: (1) it is related to non-procurement transactions with the Federal government (GPEA) or (2) it does not fall under category (1) and no Massachusetts law or regulation pertaining to the agency activity requires a "handwritten signature" or otherwise forbids my agency from using an electronic signature or record for the purpose at issue *10.
- Meets Formal Requirements for Validity Under E-SIGN and UETA?
- What Legal Issues Besides Validity and Control Agency Permission Must my Agency Address in Developing Systems Creating Electronic Records and Signatures?
- General Questions
- Information entered in system accurate?
- Security preventing unauthorized access?
- Appropriate audit trail?
- System captures all necessary information, including contextual information
- If agency likely to need to demonstrate intent of a party to the transaction, can it show that person signed with intent?
- Properly documented?
- Higher level of care if transaction or process historically the subject of attempted fraud, agency litigation, or agency enforcement actions?
- Comports with legal privacy or confidentiality requirements?
- Eliminate use of superfluous documents and signatures not required by law?
- Meet formal legal requirements for paper documents?
- Electronic records or signatures and all relevant information will be available when needed?
- Electronic signature or record is reliable?
- Electronic record or signature complies with laws and policies other than E-SIGN and UETA?
- Privacy and confidentiality laws, including Mass. Gen. L. ch. 66A.
- Accessibility laws and the Commonwealth's Web Accessibility Standards
- Records Conservation Law, Mass. Gen. L. ch. 30, sec. 42
- Electronic Records Preservation-State Library Advisory
- Public Records Law, Mass. Gen. L. ch. 66, sec. 10
- Does the system ensure that the electronic signature or record will be admissible as evidence under Massachusetts law?
- Official records exception
- Business Records Exemption
- Federal law of evidence?
- Admissible Web pages or data and systems creating dynamic Web pages?
- Electronic Signature Issues:
- Signor's intent
- Proper authentication of signor
- Integrity of electronic document
- Signature permanently bound to electronic document
INVENTORY AND ANALYSIS OF MASSACHUSETTS "QUILL PEN" STATUTES AND REGULATIONS
This appendix sets forth the results of an electronic search of the Massachusetts General Laws and the Code of Massachusetts Regulations for statutory and regulatory provisions that by their express terms might require actual "ink-on-paper" signatures for particular transactions, and would therefore prevent the use of information technology systems. Both bodies of law were searched for the terms "written signature" and "manual signature" as well as for the words "handwriting" and "handwritten." Please note that this search is not exhaustive, because there are other formulations that could be interpreted to preclude the use of IT systems (such as a statute or regulation requiring that something be delivered "by hand").
A. Statutory Provisions
1. "Written Signature"
There are 24 sections of the General Laws that contain the term "written signature." One of these (MGL c. 4, §7. cl. 38) is the definition section that provides that "if the written signature of a person is required by law, it shall always be his own handwriting or, if he is unable to write, his mark." Of the 23 remaining sections, 14 use the term merely to provide that a facsimile signature shall have the same validity and effect as a "written signature *11." For example, MGL c. 3, §12a provides as follows: "Facsimiles of the signatures of the clerk of the senate and the clerk of the house of representatives on endorsements of bills, reports of committees and other legislative documents shall have the same validity and effect as their written signatures *12."
In addition, two of these 14 sections apply to two other sections that on their face require a "written signature." Thus, MGL c. 36, § 18 states that a Register of Deeds may attest records by means of a "written signature." However, MGL c. 36, § 19 provides that a facsimile signature of any Register of Deeds shall have the same validity as his "written signature." There is a comparable pair of sections (MGL c.41, §§ 18a, 18b) relating to "written signatures" and facsimile signatures of city clerks.
Thus, there are only seven sections of the General Laws that use the term "written signature" in a way that could be construed to preclude the use of information technology systems. Interestingly, most of these sections actually authorize the use of facsimile signatures, but in doing so create one or more exceptions. Note that six of the seven sections apply to the Judiciary.
- MGL c. 121B, § 15. In cases where a bond or note issued by an Urban Renewal Operating Agency is required to bear the signatures of two or more officers, it is sufficient if the signature of any one such officer is a "written signature" and the remaining signatures are "engraved, printed or stamped facsimile signatures."
- MGL 185 § 9. A facsimile signature by a Land Court Recorder shall have the same validity as his written signature except in the case of a decree for transcription in a registry of deeds and the case of an execution.
- MGL c. 185C, § 14. Housing court clerks and assistant clerks may sign documents by facsimile "except search warrants and process authorizing arrests or commitments" and such facsimile signatures shall have the same validity as their written signatures.
- MGL c. 217, § 15. A Register of the Probate Court may attest the records of the court by the volume, and the attestation shall be sufficient when the volume containing the same bears the attest, with the written signature of the register or other person lawfully authorized.
- MGL c. 217, § 22. The facsimile signature of a Register of the Probate Court on any document issued by the probate court, other than executions, shall have the same validity as his written signature.
- MGL c. 218, § 14. Clerks and assistant clerks of district courts may sign documents issued by said courts by means of a facsimile signature, except search warrants and process authorizing arrests or commitments.
- MGL c. 221, § 17. "A facsimile of the signature of the clerk of any court in the Commonwealth, imprinted by him upon any writ, summons, subpoena, order of notice or order of attachment, except executions, shall have the same validity as his written signature."
2. "Manual Signature"
There are three sections of the General Laws, all of them in Chapter 44 (Municipal Finance), that contain the term "manual signature." One of them provides, as to a particular type of transaction, that a facsimile signature shall have the same legal effect as a manual signature. The other two sections, which could be construed to preclude the use of information technology systems, provide as follows:
- MCL c. 44, § 16A. "Any officer authorized to sign bonds or notes of a city, town or district may execute such bonds or notes or cause them to be executed by a facsimile signature in lieu of his manual signature, provided that at least one signature required or permitted to be placed thereon shall be manually subscribed."
- MCL c. 44, § 28C. Debt obligations for municipal solid waste projects shall be signed by the manual or facsimile signature of the treasurer and countersigned by the manual or facsimile signature of the chief executive officer. "Unless provision is made for the authentication of the debt obligations of an issue by the manual signature of trustee or other authenticating agent, each debt obligation shall bear at least one manual signature of the aforementioned officers."
There are 13 sections in the general laws that contain the work "handwriting." There are four noteworthy groups of statutory sections.
- Consumers' Right to Terminate Sales Agreements. Two sections of the General Laws (MGL c.93, § 48 and MGL c.255D, §9) give consumers a three-day window in which to terminate sales agreements consummated at a place other than the seller's place of business. Each statute creates an exception for cases in which the buyer initiates the transaction to address a bond fide personal emergency and furnishes the seller "with a separate dated and signed personal statement in the buyer's handwriting describing the situation requiring immediate remedy and expressly acknowledging and waiving the right to cancel the sale within three business days."
- Prescription Drug Substitutions. By far the most explicit "quill pen" statute is found at MGL c.112, § 12D which relates to prescription forms used by doctors. This section provides that physicians can instruct a pharmacist to dispense a brand-name drug rather than a generic drug "by writing in the practitioner's own handwriting the words 'no substitution'" The section goes on to state that "no other form or procedure, including initialing, checking or initialing a box, or pre-printing or stamping a prescription form shall be deemed by the pharmacist to be the equivalent of the practitioner's hand written statement 'no substitution'."
- Brand Name Drug Prescriptions. MGL c.118E , § 17, which establishes caps on reimbursements provided by the Division of Medical Assistance, allows DMA to provide higher reimbursements for brand-name drugs if a physician submits written documentation and also "writes on the face of the prescription in his or her own handwriting the words 'brand name medically necessary'."
- Real Estate Transactions. MGL c. 36, § 15 requires Registers of Deeds to "record all instruments upon the pages of the record books in fair and legible handwriting or in print *13." Chapter 183 of the General Laws provides that deeds may only be recorded if they are accompanied by a certificate of acknowledgment from the grantor, which must be executed before an "officer" (such as a justice of the peace or a notary public). MGL c.183, § 33 requires certificates of acknowledgment executed by grantors who reside outside the Commonwealth to be accompanied by a certificate from the secretary of state or the clerk of a court stating "that said secretary of state or clerk of court is well acquainted with his [the "officer's"] handwriting and verily believes the signature affixed to such certificate of proof or acknowledgment is genuine. In cases where a grantor has died or is otherwise not available to execute an acknowledgment, the due execution of a deed may be established by the testimony of a subscribing witness. MGL c.183, § 35 provides that "if all the subscribing witnesses to the deed are also dead or out of the commonwealth, the due execution thereof may be proved before such court by proving the handwriting of the grantor and of a subscribing witness." Finally, MGL c.183, § 37 provides that "if a grantor refuses to acknowledge his deed and the subscribing witnesses thereto are all dead or out of the commonwealth, its execution may be proved before any court of record in this commonwealth by proving the handwriting of the grantor and of a subscribing witness."
- Application for Plumber's License. MGL c.142, § 4 provides that applications for licensing examinations for master plumbers, journeyman plumbers, master gas fitters, journeyman gas fitters, and undiluted liquefied petroleum gas installers "shall be in the handwriting of the applicant."
There are five sections of the General Laws that contain the word "handwritten," of which one is restrictive and one is merely interesting.
- Check Cashing. MGL c.167, § 46 requires every bank doing business in the Commonwealth to honor and cash checks presented by pensioners and retirees whether or not they have an account with that bank if they do certain things, including registering with the bank. As part of the registration process, the pensioner and retiree must include their "handwritten signature" on the application card.
- Online Campaign Finance Filing. MGL c.55, § 18C directs the Office of Campaign and Political Finance to develop an electronic reporting system for the submission, retrieval, storage and public disclosure of campaign finance reports and financial activity statements required to be filed with the director. It further provides that "the Director shall develop or employ encryption technology and other means of ensuring the integrity of transmitted data which may be used by filers in lieu of a handwritten signature for verification purposes and to constitute signature under penalties of perjury."
B. Regulatory Provisions
1. "Written Signature"
The only section of the CMR that contains the term "written signature" relates to claims for payment submitted by pharmacies to the Division of Medical Assistance (130 CMR 450.304) and provides that "if a pharmacy claim is submitted through the Pharmacy On-Line Processing System, no written signature is required."
2. "Manual Signature"
There are three sections of the CMR containing the term "manual signature," all of which are issued by the Division of Insurance and relate to audits of insurance firms by independent CPAs. The first section (211 CMR 19.09) requires that financial statements filed with DOI must be audited by an independent CPA whose opinion letter "shall bear original manual signatures." The second section (211 CMR 19.10), which relates to Securities and Exchange Commission form 10Ks filed with DOI, requires such forms to "bear original manual signatures of the officers of the insurer and its independent certified public accountants." The third section (211 CMR 19.11) requires that the CPA audits also include a report on the insurer's internal controls and that the report "shall bear original manual signatures."
3. "Handwriting" and "Handwritten"
There are 24 sections of the CMR that contain one or both of the words "handwriting" and "handwritten."
- DMA Regulations. Of the 24 CMR sections containing these words 11 are issued by the Division of Medical Assistance. Of these, nine merely restate the statutory rule that physicians that wish to prescribe brand-name drugs must indicate this fact on the prescription form in their own handwriting (105 CMR 720.200, Appendix A, 105 CMR 721.030, 105 CMR 721.031, 130 CMR 406.413, 130 CMR 406.432, 130 CMR 410.463, 130 CMR 420.418, 130 CMR 424.419, 130 CMR 433.443). Another section provides that emergency room services can only be compensated if there is a "handwritten or time-stamped documentation of the length of the recipient's stay in the emergency room" (130 CMR 410.411). The final DMA section relates to signatures on claim forms and provides that "signature, whether handwritten or mechanically applied, and submission of a claim form, or for pharmacies, submission of a claim through the Pharmacy On- Line Processing System, constitute certification of the claims thereon" (130 CMR 450.306).
- Hazardous Waste Manifests. Three CMR sections issued by the Department of Environmental Protection require handwritten signatures. The first (310 CMR 30.314) requires generators of hazardous waste to obtain the "handwritten signature" of the initial transporter of hazardous waste on the hazardous waste manifest. The second section (310 CMR 30.333) requires the hazardous waste generator to undertake certain steps if it does not receive, within certain time periods, a copy of the manifest with the "handwritten signature" of the owner or operator of the facility to which the hazardous waste was shipped. The third section (310 CMR 30.405) requires transporters of hazardous waste to obtain the "handwritten signature" of any other transporter or designated facility to which it delivers the hazardous waste.
- Regulation of Engineers. Two CMR sections (250 CMR 3.05, 780 CMR Appendix B-3) provide that engineers licensed by the Board of Registration shall include the engineering discipline in which they are registered as part of their seal or it may be "handwritten above the registrant's signature."
Miscellaneous Provisions. There are eight other CMR sections that contain the word "handwriting" or "handwritten." One issued by the Division of Banks (209 CMR 35.02) restates the statutory requirement that applications for check cashing privileges by pensioners and retirees that do not have accounts with the bank shall include the applicant's "handwritten signature." A regulation issued by the Board of Registration in Optometry (246 CMR 3.02) defines a "prescription for ophthalmic lenses or spectacle eyeglasses" as a written order "bearing the original handwritten or electronic signature" of a licensed optometrist. 261 CMR 2.02 requires applications for a license in respiratory care to be "typewritten or handwritten in a legible manner." Another regulation (360 CMR 1.07) requires papers filed with the Massachusetts Water Resources Authority to be "handwritten or typewritten." The Labor Relations Commission requires that all hearings be recorded by "audio tape, stenographic transcription, handwritten transcription, or other equivalent method approved by the Commission" (456 CMR 13.11). The Department of Housing and Community Development requires local housing authorities to "maintain permanent handwritten ledgers of it's master file, waiting lists, and vacancy ledger" (760 CMR 5.16). The Secretary of State's office requires notices submitted for publication in the Central Register to be on forms provided by the Secretary and further states that "handwritten or newspaper copies will not be printed" (950 CMR 21.04). Finally, the Treasurer's regulations relating to the abandoned property list (960 CMR 4.06) provides that "handwritten agreements or contracts" with heir finders "will not be accepted".
*3 E-SIGN exempts the following: certain disclosures required by law to be provided to consumers; laws governing the creation and execution of wills and other testamentary instruments; laws governing adoption, divorce or other matters of family law; Articles 3 through 9 of the Uniform Commercial Code; court orders, notices and items required to be executed in connection with judicial proceedings; any notice of the cancellation or termination of utility services; any notice of default, acceleration, repossession, foreclosure, or eviction, or the right to cure, under a credit agreement secured by, or a rental agreement for, a primary residence of an individual; any notice of the cancellation or termination of health insurance or benefits or life insurance benefits; any notice of recall of a product, or material failure of a product, that risks endangering health or safety; and any document required to accompany any transportation or handling of hazardous materials, pesticides, or other toxic or dangerous materials. In such cases, the validity or invalidity of electronic signatures and records is determined by state law.
*4 One area where E-SIGN has direct implications for state government is record retention rules. E-SIGN provides that any statute or regulation that imposes a records retention requirement is satisfied by the retention of an electronic record that accurately reflects the information set forth in the record and that remains accessible in a form that is capable of being accurately reproduced for later reference. E-SIGN expressly limits the authority of state regulatory agencies to continue imposing requirements for the use of paper signatures and records on private parties in the conduct of their affairs, a prohibition with important implications for state government's dealings with regulated entities.
*5 Appendix B to this document lists some of the state statutes and regulations that may require the use of "wet" signatures and/or paper records.
*6 "A writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall not be inadmissible in any civil or criminal proceeding as evidence of the facts therein stated because it is transcribed, or because it is hearsay or self serving, if the court finds that the . . . writing or record was made in good faith in the regular course of business and before the beginning of the . . . proceeding . . . and that it was the regular course of business to make such . . . record. . . "
*7 Agency counsel may hear the term "non-repudiation" used in connection with electronic signatures. Non-repudiation is defined in the ABA Digital Signatures Guideline as "[s]trong and substantial evidence of the identity of the signer of a message and of message integrity, sufficient to prevent a party from successfully denying the origin, submission or delivery of the message and the integrity of its contents." Non-repudiation has proved to be an elusive goal so far with respect to electronic signature technology. As a legal theory, it remains untested in Massachusetts.
*8 Part III of this document, as yet unpublished, will assist agencies in assessing the risks and benefits of particular types of electronic signature technology.
*9 Standards for use of electronic records and signatures related to procurements are being developed by OSD and CTR and departments may not implement electronic signatures or records until these standards are published.
*10 Although E-SIGN would validate electronic signatures and records used in state procurement, agencies may not use them in connection with procurement until the Office of the State Comptroller and the Operational Services Division complete their current effort to develop and publish standards for such signatures and records.
*11 To date, there is no case law in Massachusetts that examines the requirements for a "facsimile" signature. Note that when they were enacted these facsimile signature statutes referred to physical stamps that bore the imprint of a particular official's signature and not to signatures transmitted by electronic facsimile machine. Legislative acceptance of stamped facsimile signatures could be seen as an indication that an electronic signature would also be allowed. On the other hand, because of their physical nature, facsimile stamps are clearly distinguishable from electronic signatures. Agency counsel considering a statute that authorizes facsimile signatures should look to the broader context of a particular statute and transaction in order to make a determination on the validity of electronic signatures. Five of the fourteen sections authorizing the use of a facsimile signature require that the written signature of the person signing by facsimile must be on file with some other public official.
*12 Five of the fourteen sections authorizing the use of a facsimile signature require that the written signature of the person signing by facsimile must be on file with some other public official.
*13 Notwithstanding this statutory requirement, registries long ago abandoned the practice of handwritten record books (moving from typed record books, to microfilmed and printed record books, and now to scanned and laser-printed record books). The validity of these innovations has never been challenged or decided. An issue likely to arise before long is whether scanned instruments need to be laser-printed (as is now the practice) or whether the electronic data alone constitutes an electronic "record book".