Question:
What does ESRA do?

Answer:
The Electronic Signatures and Records Act (ESRA) provides that the use of "signatures" made via electronic means shall have the same validity and effect as the use of a signature affixed by hand. The law also enhances and clarifies the authority of government to create and retain records in computer produced electronic form. There is now no doubt that electronic records have the same legal force as those produced in formats such as paper and microfilm.

The legislation also designates the Office for Technology as the Electronic Facilitator responsible for promulgating rules and regulations regarding the use of electronic signatures and records.

Question:
What are electronic signatures and records?

Answer:
An electronic signature is an electronic sound, symbol or process attached to or logically associated with an electronic record and adopted by a person as their signature. ESRA and its implementing regulation further define what will constitute an electronic signature in New York.

An electronic record is information created, stored, generated, received, or communicated by electronic means in a form that a person can perceive and which can be accurately reproduced.

Essentially, electronic signatures and records will allow us to conduct electronic transactions subject to the same legal standards as paper transactions.

Question:
How does NYS define an electronic signature?

Answer:
NYS defines an electronic signature, the use of which has the same force and effect as the use of a signature affixed by hand, in Section 302.3 of ESRA.

Question:
Can people now use electronic signatures and records under this law?

Answer:
Yes, since March 27, 2000, when the first regulations took effect (180 days after the law was signed) electronic signatures could be used in New York State. The most recent amendments to the law went into effect on August 6, 2002, allowing a broader range of technology solutions to now be used for electronic signatures, as appropriate for a particular transactin or document. OFT has developed revised regulations and guidelines based on the recent change in law.

Question:
Who is affected by New York State's ESRA?

Answer:
The law and its regulations apply to anyone using or accepting electronic records and signatures in New York State. Additionally, when electronic records or signatures are used in interstate or foreign commercial transactions, a federal law entitled the Electronic Signatures in Global and National Commerce Act (E-Sign Law) governs their use.

Question:
Can electronic signatures be used for everything?

Answer:
No. Certain documents are excluded including: wills, trusts, negotiable instruments, deeds, mortgages and others specified in the law, or as determined by the Electronic Facilitator. However, negotiable instruments and certain other instruments of title, that are electronically created, stored or transferred in a certain manner are not excluded.

Question:
Will I be required to use or accept electronic signatures and records?

Answer:
No, the use of electronic records and signatures is entirely voluntary. In fact, government agencies that accept electronic records and signatures must also accept paper documents from citizens and business, unless otherwise provided by law.

Question:
What are the Electronic Facilitator's responsibilities?

Answer:
The Electronic Facilitator (Office for Technology) has and will continue to implement ESRA through

• Promulgating rules and regulations in consultation with state and local government officials, private sector businesses, and e-commerce experts.
• Promoting the use of electronic signatures and records by developing guidelines and standards, and working with state and local entities on relevant projects.
• Providing up-to-date information to the public on the regulations, standards, guidelines and the use of electronic signatures and records in NYS via the Internet.

Question:
What is the difference between the ESRA law, regulations and guidelines?

Answer:
ESRA is a statutory law adopted by the State Legislature and Governor. ESRA authorizes OFT to adopt a regulation to help implement ESRA. Part 540 is that regulation which also has the effect of law just like the ESRA statute.

ESRA also authorizes OFT to develop guidelines to promote the use of electronic means in commercial and government transactions. OFT’s ESRA Guidelines do not have the effect of law but instead are informational and suggestive in nature.