The development of telegraphy brought about the same types of dispute that occur in the era of the internet, and judges were required then, as now, to adapt old laws to new technologies. Exchanges of telegrams generally held to provide evidence of intent to contract within the relevant statute of frauds. Documents sent by facsimile transmission have also generally been accepted in common law jurisdictions. There have been cases where judges have implied that a document has been signed even in the absence of a manuscript signature, where there is sufficient evidence to show the person signing the document adopted the content.  Many bureaucratic processes have forms requiring signatures, where there may be no legal authority or requirement for a signature (see e.g. Wynn & Israel 2018). Manuscript signatures have been forged. To test both the validity and the effectiveness of a manuscript signature, various jurisdictions have required the signatures on some classes of documents (e.g., wills, land conveyances, high value contracts, etc.) to be affixed in the presence of a witness or an authorized official, such as a notary. The function of the witness or notary is to provide additional evidence assuring the validity of the signature on the document. This generally requires that witnesses or notaries be independent and have no conflicts of interest (e.g., medical staff witnessing patient legal documents (Starr 2016)). Witnesses and notarial acts are generally required to authenticate a signature for legal purposes.

Sometimes there is a legal need for some form of official to authenticate a document, e.g., for a document to be accepted in some foreign legal processes. Georgia has two separate and distinct state agencies authorized[1] to authenticate documents for use by foreign countries etc. If the document authentication is going to a foreign country that is a participant in Hague Treaty Convention then obtain an Apostille via Georgia Superior Court Clerks. If the document authentication is going to a foreign country that is not a participant in Hague Treaty Convention then authenticate via the Georgia Secretary of State with a Great Seal Certification. For domestic use, a notarial act with Certification of notary public. (Certificate of authority from County court that Notary is authorized by the county) is generally sufficient.

Signatures for legal entities

Legal entities (Companies, LLCs, partnerships, etc.) have many of the same rights and obligations of natural persons that may include a need for a signature e.g., to enter into binding contracts, to endorse government required documents. When signing for the corporation, a simple signature line with the name of the corporate officer is not the legally acceptable method for signature; instead, the signature must be presented in a signature block with the name of the corporation and the name, title and signature of a corporate officer. 

Legal entities can have their own signatures distinct from a natural person. Most states have enabled a Company Seal in their statutes enabling corporations. Generally, the Company Seal acts as a signature executing a document on behalf of the corporation, but see

The seal of the corporation may be affixed to any document executed by the corporation, but the absence of the seal shall not itself impair the validity of the document or of any action taken in pursuance thereof or in reliance thereon. .  

(O.C.G.A. 14-3-846 (c))

In many cases the Company Seal alone is insufficient evidence for company endorsement actions.  Execution of instruments conveying interest in real property or releasing security agreements requires natural person signatures, often two signatures (e.g., Company President and Company Secretary). The Company Seal is not necessary. (O.C.G.A. 14-5-7 (2010))

When a corporation is doing business, it must duly authorize each transaction. Entering contracts, concluding loans and endorsing checks or drafts all require the signature of a corporate officer with the authority to conduct business transactions on behalf of the company. Determining what constitutes a legal signature for a corporation may involve reading the bylaws, securing a board resolution or requesting some other certification of authority. Board resolutions also may give general authority to act on behalf of the corporation or more limited powers to transact business. (e.g., a schedule of authorizations). In some instances, illegal signatures will bind a corporation to protect the interests of innocent third parties. Apparent authority may also exist if two officers of the same corporation, such as the secretary and president, endorse an instrument. Bylaws and board resolutions are not filed with the Secretary of State in the state of incorporation, so you may have to request a copy from the corporation itself.

Notarial acts on signatures

For Notary Law in Georgia, see generally, O.C.G.A. 45-17-1 (2010). Notaries Public have authority anywhere within the State of Georgia to:

1. Witness or attest signature or execution of deeds and other written instruments;
2. Take acknowledgments;
3. Administer oaths and affirmations in all matters incidental to their duties as commercial officers and all other oaths and affirmations which are not by law required to be administered by a particular officer;
4. Witness affidavits upon oath or affirmation;
5. Take verifications upon oath or affirmation;
6. Make certified copies, provided that the document presented for copying is an original document and is neither a public record nor a publicly recorded document, certified copies of which are available from an official source other than a notary; and provided that the document was photocopied under supervision of the notary; and
7. Perform such other acts as notaries are authorized to perform by the laws of the State of Georgia.

A “notarial act” means any act that a notary is authorized to perform and includes, without limitation, attestation, the taking of an acknowledgment, the administration of an oath or affirmation, the taking of a verification upon an oath or affirmation, and the certification of a copy. All notarial acts must be accompanied by the Notary’s seal. “Attesting” and “attestation” are synonymous and mean the notarial act of witnessing or attesting a signature or execution of a deed or other written instrument, where such notarial act does not involve the taking of an acknowledgment, the administering of an oath or affirmation, the taking of a verification, or the certification of a copy. “Notarial certificate” means the notary’s documentation of a notarial act.

Notaries are commissioned for a four-year term by the Clerk of Superior Court in their county. Requirements are generally age, legal residency of the state (or bordering state, but employed in GA), be able to read and write English. The process[2] in GA requires an application form, fee, oath of office, notary seal.

The advent of COVID-19 has accelerated a trend towards electronic signatures and records. Groups like the Electronic Signature and Records Association[3] have been promoting uniform statutes and rules in areas such as eNotary, IRS eSignature policy, Electronic Will legislation, Blockchain, etc.  Remote Online Notaries (RON) have been enabled in many states[4] as a result of the COVID-19 outbreak. This authorization may be via RON legislation or emergency authorizations by State Authorities.  For example, in Arizona, ARS 44-7011 allows completion of notarial act on an electronic message or document without imprint of notary seal. In Georgia, the Executive Order[5] by Governor Kemp (dated 3/31/2020) authorizes use of real time audiovisual communications for notarizations.  

Legislative activity is often broadly framed so as to enable a variety of technical and commercial solutions to evolve. Public Key cryptography has emerged as a technology with widespread commercial adoption. Other technologies like blockchains build on public key cryptography to enable larger systems. Cryptography research also continues to enable new capabilities in fields like security and privacy; but also more specifically relevant to signature process roles like witnesses and notaries.  

References

Starr, K. T. (2016). Should you witness a signature on a patient’s personal legal document?. Nursing2019, 46(12), 14.

Wynn, L. L., & Israel, M. (2018). The fetishes of consent: Signatures, paper, and writing in research ethics review. American Anthropologist, 120(4), 795-806.

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[1] https://www.gsccca.org/notary-and-apostilles/apostilles/general-apostille-information

[2] https://www.gsccca.org/notary-and-apostilles/notaries/notary-public-application

[3] https://esignrecords.org/

[4] https://www.nationalnotary.org/notary-bulletin/blog/2020/03/states-emergency-action-remote-notarization#:~:text=Effective%20March%2031%2C%20an%20executive,related%20to%20real%20estate%20transactions.

[5] https://gov.georgia.gov/document/2020-executive-order/03312001/download

Smart contracts and other blockchain transactions (e.g., transfers of assets represented by digital tokens) are purported to have legal significance. That legal significance hinges on assent by the parties usually captured in a contract signature. Blockchains, distributed ledgers, smart contracts and similar technologies rely on cryptographic signatures for authentication and authorization of account transactions. Cryptographic keys are often considered as signatures representing account holder identities.  Technologists speak of “signing” documents with keys in public key cryptography. These cryptographic signature operations do not always have all the same characteristics as traditional manuscript signatures.

The function of a signature is generally determined by the nature and content of the document to which it is affixed (e.g., indicating agreement or endorsement of the material above the signature).  Historically, manuscript signatures have included a variety of formats – handwritten names, initials, symbol (e.g., X). In legal context, a signature can provide a number of functions – primary evidential functions, secondary evidential functions, cautionary functions, protective functions, channeling functions, record keeping functions (Mason 2016, Ch 1). Evidence relevant to manuscript signatures includes identity of person affixing the signature, intention to authenticate and adopt the document.  For legal entities (partnerships, corporations etc.), the scope of signature authority can also be a significant factor. Several legal defenses may be applicable to manuscript signatures: forgery, conditionality, misrepresentation, not an act of the person signing, mental incapacity, mistake, document altered after signature, person signing did not realize the document had legal significance, and other defenses based on unreasonableness or unfairness.

The ESIGN Act (2000) established the general validity of electronic signatures, and electronic contracts. A definition for an electronic signature is provided as:

The term “electronic signature” means 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 USC 7006 (5))

An example of an electronic signature is a biometric signature. A biometric signature is a binary coded representation of a person’s biometric characteristics used for authentication purposes in distributed computing systems (Bromme 2003). Another example definition of a type of electronic signature is the  S-signature from the USPTO:

(d)(2) S-signature. An S-signature is a signature inserted between forward slash marks, but not a handwritten signature … (i)The S-signature must consist only of letters, or Arabic numerals, or both, with appropriate spaces and commas, periods, apostrophes, or hyphens for punctuation… (e.g., /Dr. James T. Jones, Jr./)..

(iii) The signer’s name must be:

(A) Presented in printed or typed form preferably immediately below or adjacent the S-signature, and

(B) Reasonably specific enough so that the identity of the signer can be readily recognized. (37 CFR Sec. 1.4)

Other Federal regulations (e.g., CFTC regulations, see 17 CFR Part 1 Sec. 1.3)havevery similar definitions for electronic signatures to the ESIGN Act. The UETA electronic signature definition (Uniform Law Commission 2019, Sect 2 (7) (8)) as enacted by most states also has very similar language to the ESIGN Act (see e.g., Georgia’s O.C.G.A. 10-12-2 (2010)). Arizona, Nevada, Tennessee, however, have amended their UETA statutes to incorporate blockchain and smart contracts (see e.g. A.R.S. 44-7061). The Uniform Law Commission guidance (2019b) considered this redundant and subject to preemption by the federal act.  Beyond electronic signatures, the FDA regulation identify and distinguish a digital signature:

(5) Digital signature means an electronic signature based upon cryptographic methods of originator authentication, computed by using a set of rules and a set of parameters such that the identity of the signer and the integrity of the data can be verified.

(7) Electronic signature means a computer data compilation of any symbol or series of symbols executed, adopted, or authorized by an individual to be the legally binding equivalent of the individual’s handwritten signature. (21 CFR Sec. 11.3)

Internationally, this distinction between electronic and digital signatures is also captured in UNCITRAL’s Model Law on Electronic Signatures (United Nations 2001) and its associated guide which examined various electronic signature techniques that purported to provide functional equivalents to (a) handwritten signatures; and (b) other kinds of authentication mechanisms used in a paper-based environment (e.g. seals or stamps). Electronic signatures were categorized into digital signatures based on public key cryptography and other electronic signature mechanisms (e.g., biometrics, PINs, clicking an acknowledgement box, etc.). NIST’s Digital Signature Standard (Barker 2013) defines a digital signature algorithm based on the work of (Rivest, Shamir and Adelman 1978). ANSI (1998) also defines an algorithm based on Elliptic curve cryptography. Other jurisdictions have similar standards developed by other standards bodies (e.g., ETSI, ISO).

Use of cryptography for authentication purposes by producing a digital signature does not necessarily imply the use of cryptography to make any information confidential, since the encrypted digital signature may be merely appended to a non-encrypted message. A “hash function”, is used in both creating and verifying a digital signature. A hash function is a mathematical process, based on an algorithm which creates a standard length, compressed, substantially unique, digital representation (often referred to as a “message digest”, “hash value” or “hash result) of the message. The most common algorithms for encryption are based on an important feature of large prime numbers: once they are multiplied together to produce a new number, it is particularly difficult and time-consuming to determine which two prime numbers created that new, larger number. The cryptographic algorithms such as RSA or Elliptic curves have no publicly-known methods for rapid decryption of the keys. Brute force approaches relying on massive computation resources become more feasible with technology trends (e.g., Moore’s law) reducing the cost of computing and the commercial availability of massive cloud computing resources (e.g., Microsoft Azure, Amazon EC2 etc.). Quantum computing developments also threaten to undermine these algorithms.  Hence there has been recent interest in improved (“Post Quantum”) cryptographic algorithms (see e.g., Alagic et al 2019).

Cryptographic signatures, then, are the basis that blockchains and smart contracts rely on for asserting the legal significance of transactions binding parties to blockchain transactions. Beyond the creation of a signature it is the operations and processes around those cryptographic signatures (in contrast to the operations and processes around manuscript signatures) that  sustains any legal significance to these bits of information.

References

Alagic, G., Alperin-Sheriff, J. M., Apon, D. C., Cooper, D. A., Dang, Q. H., Miller, C. A., … Robinson, A. Y. (2019). Status Report on the First Round of the NIST Post-Quantum Cryptography Standardization Process. NIST Interagency/Internal Report (NISTIR) – 8240.

ANSI, (1998). X. 63: Public Key Cryptography for the Financial Services Industry, Key Agreement and Key Transport Using Elliptic Curve Cryptography. American National Standards Institute.

Barker, E. B. (2013). Digital Signature Standard (DSS). Federal Inf. Process. Stds. (NIST FIPS) – 186-4.

Bromme, A. (2003, July). A classification of biometric signatures. In 2003 International Conference on Multimedia and Expo. ICME’03. Proceedings (Cat. No. 03TH8698) (Vol. 3, pp. III-17). IEEE.

ESIGN, Pub.L. 106–229, 114 Stat. 464, enacted June 30, 2000,

Mason, S. (2016). Electronic signatures in law . University of London Press.

Rivest, R. L., Shamir, A., & Adleman, L. (1978). A method for obtaining digital signatures and public-key cryptosystems. Communications of the ACM, 21(2), 120–126.

Uniform Law Commission (2019a)  Electronic Transactions Act available online at: https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=fd76ae1a-1298-e59e-d1fe-68029b97711b&forceDialog=0 

Uniform Law Commission (2019b) Guidance Note Regarding the Relation Between the Uniform Electronic Transactions Act and Federal Esign Act, Blockchain Technology and “Smart Contracts” available online at: https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=d2026984-1040-3c6f-62c8-a676b12d7bff&forceDialog=0 United Nations (2001) Model Law on Electronic Signatures of the United Nations Commission on International Trade Law, Resolution adopted by the General Assembly 12 December 2001 A/Res/56/80