We get lots of questions about security when people reach out to us and are ready to switch from paper waivers to electronic documents. 

It’s natural to wonder if digital and electronic signatures are legally binding when you’re so used to people signing with a pen. On top of that, when people learn that digital signatures and electronic signatures are actually two different things, they want to know which one is better and what types of signatures WaiverForever supports.

If you’re one of those people, don’t worry – this post explores what the main differences are between digital and electronic signatures, how they are implemented, and which is more secure.

What is an Electronic Signature?

An electronic signature, as set out in the U.S. ESIGN Act, is an “electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a person with the intent to sign a record.” In the context of our waivers, this is when someone signs the waiver with their finger on a tablet. This created the electronic signature that is then imprinted on the saved waiver.

In the digital era, an electronic signature is much less secure than a digital signature when signing documents online.

What is a Digital Signature?

Digital signatures provide an added layer of security compared to an electronic signature, and the signer can either draw or type their signature out. This technology uses algorithms to encrypt the document and also later validate the authenticity of the document.

How to Create a Digital Signature

Digital signing results in the creation of a digital certificate, which uses both a private key and public key infrastructure (PKI) to authenticate the signer and associate a digital ID with their signed document. When a user signs a WaiverForever document, their signature links a “fingerprint” of the document to your identity and it is permanently embedded into the document, and the document will show if someone comes in and tries to tamper with it after you’ve signed it. 

WaiverForever Supports Both Types of Signatures

WaiverForever supports both electronic signatures and digital signatures. All of our waivers are fully compliant with the Electronic Signatures in Global and National Commerce (ESIGN) Act.

What is the ESIGN Act?

The ESIGN Act was enacted in 2000 to ensure electronic documents and signatures are legally binding in the United States, along with providing guidelines for how signatures must be implemented and stored. Other countries and territories have similar laws such as the Uniform Electonic Transactions Act.

Key elements of the ESIGN Act include:

General Intent

(1) a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and

(2) a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation.

Consumer disclosure

Section 101 of the ESIGN Act, sub-section (b), preserves the rights of individuals to NOT USE electronic signatures. Here the law provides that individuals reserve the right to use a paper signature. Sub-section (c) is in direct support of (b) by requiring a “Consumer Disclosure” that the signatory has consented to use an electronic format.

Section 101(c)(1)(C) states that the consumer also “consent electronically, in a manner that reasonably demonstrates that the consumer can access information in the electronic form that will be used to provide the information that is the subject of the consent”

The consumer must provide affirmative consent, meaning that it cannot be assumed that a consumer has given consent simply because he/she has not chosen the option to deny consent, or has not responded to an option to grant consent.

The first public implementation of Section 106 of the ESIGN Act came nine months prior to its approval, when in October of 1999, Eric Solis, Founder and CEO of SaveDaily.com Inc. a Web-based micro-investing solution and creator of the eSolis Brokerage Account, pioneered the use of an Electronic Signature to establish paperless brokerage accounts. Solis overcame the requirements of Section 101(c)(1)(C) by causing the Consumer to agree in advance via Consumer Disclosures that all communications, including signatures would be executed and delivered electronically.

Retention of contracts and records

Section 101(d) provides that if a law requires that a business retain a record of a transaction, the business satisfies the requirement by retaining an electronic record, as long as the record 1) “accurately reflects” the substance of the original record in an unalterable format, 2) is “accessible” to people who are entitled to access it, 3) is “in a form that is capable of being accurately reproduced for later reference, whether by transmission, printing or otherwise”, and 4) is retained for the legally required period of time.

Which Type of Signature Does WaiverForever Recommend?

While both forms of signatures are legally binding, we highly recommend you use a digital signature, as it is more likely to be defendable in court.

Click here to learn how to set up your digital waiver security settings.

Please also note that whenever a waiver is signed, the customer will also receive a copy via e-mail. These records are also maintained.

Learn More About How WaiverForever Protects Your Business

For any other questions you have about WaiverForever’s security features, we’re happy to personally answer any additional questions you may have. You can reach out to us by visiting our homepage and clicking the contact us button that appears.

If you’re new to the WaiverForever electronic document signing platform, we encourage you to start your free trial (no credit card required) to explore all the powerful security and business management features we provide in all of our plans.

Try WaiverForever For Free Today!