Program Letter 16-2

Electronic Signatures and LSC Requirements for "Signed" Documents
To:  All Executive Directors
From:  James J. Sandman, President

Summary

LSC requires that grantees obtain signatures on certain documents. Grantees may accept electronic signatures (e-signatures) when the grantee can document that that the e‑signature meets the legal standard for use of e-signatures for attribution purposes, as provided in federal and state laws creating a presumption that e-signatures are equivalent to written signatures.

Background

LSC requires that grantees obtain signatures on certain documents. For example:

  • 45 C.F.R. § 1611.9-executed written retainer agreement
  • 45 C.F.R. § 1620.6-staff agreement to grantee priorities
  • 45 C.F.R. § 1626.6-client attestation of citizenship
  • 45 C.F.R. § 1636.2-client statement of identity and facts
  • 45 C.F.R. § 1635.3-part-time staff certification regarding restricted activities

The federal Electronic Signatures in Global and National Commerce Act (ESIGN) ( 15 U.S.C. §§7000-7006) and laws in 47 states and D.C. following the Uniform Electronic Transactions Act (UETA) ( 1999 model act approved by the American Bar Association) state that e-signatures satisfy statutory requirements for signatures and that e‑signatures have the same legal effect as written signatures. See Robert A. Wittie & Jane K. Winn, Electronic Records and Signatures under the Federal E-Sign Legislation and The UETA , 56 Bus. Law. 293 (2000). These laws do not affirmatively require that parties accept e-signatures; rather, they create a presumption that e-signatures are valid and effective. Id.

ESIGN and UETA define an electronic signature as:

  • 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.

15 U.S.C. § 7006(5); UETA §2(8) . Furthermore, as a consumer protection measure, entities accepting e-signatures should provide clear notice that the electronic action (such as clicking a box, entering the individual's initials, or sending a text to a designated address) will constitute a legally binding signature. They should also clearly identify the terms of agreement accepted by the e-signature. Electronic agreements used for most smart-phone applications follow this approach.

Policy

Consistent with ESIGN and UETA, LSC grantees may accept LSC-required signatures in electronic form when the grantee can document that the e-signature meets the three elements of ESIGN. Grantees must also comply with any other applicable laws regarding the use of e-signatures. The following examples elaborate on the three elements of ESIGN.

1. Means of signing. Grantees can use any process as long as it requires an affirmative step by the individual "signing" the document. The grantee's records should provide clear documentation of that process. For example:

a. Receipt of an email or text from the email or phone account provided by the applicant for services and used for correspondence regarding that application.

b. Logging of a checkbox and typed initials on a webform that provides a data trail connecting that form with other information supplied, such as a user account or an open web session from a device associated with a unique identification (such as a cookie or device identification code).

2. Association. The record must clearly associate the e-signature with the terms agreed to. For example:

a. An email or text stating "Yes, I agree" and containing text or an attachment with the terms sent by the grantee to the applicant. If a link is used, then the record should contain a copy of the content of the link at the time of the agreement.

b. Electronic confirmation that a checkbox was selected and the signer's initials were entered on a webform that displayed the terms of the agreement. The record should also contain a copy of the exact terms shown at the time of the agreement.

3. Intent to sign. The record must clearly show that the individual had notification that the e-signature process would create a legally binding agreement with the identified terms. For example:

a. A clear statement in an email or text directly associated with the agreement stating that agreeing by email or text is a legally binding signature, followed by a confirmation email or text stating that (i) the e‑signature was accepted, (ii) the individual had agreed to the terms, and (iii) the individual could reject the agreement by immediately sending a cancellation email or text.

b. Electronic confirmation of the use of a webform using a similar statement as in the first example and followed by a confirmation through the webform system and by email or text with a method of cancellation.

The e-signature process should include accommodations for disabilities. These could include immediate access to a live person or alternate technology. For example, blind applicants who do not use adaptive technology to access email, text, or websites could use audio systems that read the terms aloud and capture e-signatures through keytones or voice commands.

Example

The following example illustrates one approach to meeting the requirements for a valid e-signature:

An applicant executes a retainer through a website.

1. The applicant completes an online application and provides an email address for contact.

2. The grantee accepts the case for extended service and emails the applicant at the provided email address a link to a retainer agreement containing the terms of engagement based on the online application.

3. The webpage shows the applicant the language of the completed retainer agreement.

4. The webpage shows the applicant all of the eligibility information that she provided.

5. The applicant cannot get to the signature page without seeing all of that information on one page, or on multiple pages on which she has to click "Yes, this is correct."

6. The webpage has two check boxes that the applicant must check:

a. By accepting this retainer, you say that all of the information that you provided is true and complete.

b. You understand that this retainer is a legal contract between you and us.

7. After checking the boxes, the applicant types her initials and enters her email address.

This description serves solely as an example. Grantees may use other methods for meeting the requirements of a valid e-signature, and LSC encourages grantees to develop methods best suited to specific circumstances. For example, email addresses, phone numbers, and physical addresses are all acceptable identifying contact information. A person can sign or e-sign a document based on using the same email address, phone number, or physical address that she uses for other communications with the grantee.

I encourage you to contact LSC to discuss e-signature methods during development.

Contact Information

Please direct questions or requests for further information to Mark Freedman, Senior Associate General Counsel, at 202-295-1623 or mfreedman@lsc.gov.