More than 20 years after California first approved the use of electronic signatures for state government business, officials are still trying to sort out how to implement and support them.
One of the newer areas of focus is differentiating between electronic signatures and digital signatures within the language of California's government code. You might assume that e-signatures and digital signatures mean the same thing and are interchangeable words. But within the e-signature industry, they tend to be thought of as distinct.
For instance, ESignLive explains that "essentially, the e-signature is the legally binding record and the digital signature is the underlying technology that helps verify the authenticity of the transaction." DocuSign, another vendor in the e-signature business, says there are many types of e-signatures and digital signatures are one of them: "However, there are differences in purpose, technical implementation, geographical use, and legal and cultural acceptance of digital signatures versus other types of eSignatures."
The confusion extends into California's government code dating back more than two decades. In 1995 the state of California added code section 16.5 so that "the use of a digital signature shall have the same force and effect as the use of a manual signature" — what people often call a "wet" signature. Meanwhile, four years later in 1999, California enacted the Uniform Electronic Transactions Act (UETA), which most states adopted to make records laws the same state to state. UETA speaks of e-signatures, not digital signatures.
Legislation introduced earlier this year backed by Secretary of State Alex Padilla and brought forward by Assemblymember Evan Low, D-Campbell, aims to clarify the situation by deeming that "a 'digital signature' authorized by Section 16.5 of the Government Code and subject to regulations adopted by the Secretary of State is one type of 'electronic signature' that a public agency may choose to adopt under the Uniform Electronic Transactions Act."
"The definition of 'digital signature' in Section 16.5 of the Government Code and the definition of 'electronic signature' in the Uniform Electronic Transactions Act are similar, and neither statute includes any cross-reference to the other, leading to confusion in the marketplace and among public agencies as to what law governs," the bill (AB 2296) says.
Low asserts the bill would remove an obstacle to adopting digital transactions.
"A lack of clarity in the law creates a barrier to public agencies utilizing fully digital transactions that require a signature. The confusion is limiting the signature solutions agencies adopt, or leading them to retain paper-based processes to avoid noncompliance. As a result, the benefits of digital transactions and online services — efficiency, cost savings, convenience, and paper reduction — are not being fully realized," a fact sheet on the bill from Low's office says.
AB 2296 has passed the Assembly and Senate, and the bill is supported by the California Chamber of Commerce, CompTIA, the Electronic Signature and Records Association, and other industry groups. There was no opposition on file as of June.
"Government agencies will have the ability to create document workflows and acceptance processes using all of the technological options available. Section 16.5 was meant to speed government processes, not slow them. Assembly Bill 2296 ensures that original goal is met," the Electronic Signature and Records Association wrote in support.
Digital signatures and e-signatures for internal and public use are one of the services the California Department of Technology plans to add to its portfolio of vendor-hosted solutions in the cloud. Former state CIO Carlos Ramos told an Assembly subcommittee earlier this year that the Secretary of State's Office — not the Department of Technology — owns the authority for digital signatures in the state.
"They want to establish a policy that says, 'Hey, it's OK, departments, to use digital signatures," Ramos said in March about the Secretary of State's Office. "So then that makes it easier for us to offer it up as a service, and for agencies to come in and adopt it."
