[mehrdadn]

Just a layman here but that seems like a misinterpretation of the statute? The idea of the statute seems to be that the government will not void, nullify, or refuse to enforce the terms of an electronic contract. It does not state that in any given contract, private parties must accept the terms signed in any form whatsoever -- that's still left as something for those people to agree on, and Chase very clearly spelled out that that's not valid for the contract. So the "reason" for the invalidity of a contract wouldn't be that it has an electronic signature, but that one of the parties simply didn't follow the terms it set for validity (whatever they were -- in this case, that they be personally signed, and mailed by the actual account holder). So I'm very curious how legal opinions interpret the statute otherwise, since I don't see any hint that it was intended to be interpreted as allowing one of the parties to change the signing terms to include electronic signatures.

[DannyBee]

Non-layman here, no it's not an misinterpretation of the statute.

It makes electronic signatures as good as regular ones in interstate commerce. Period. Full stop. Caselaw supports this in spades.

The only meaningful case otherwise is where statutes explicitly require in-writing signatures (a good example is copyright transfers).

There is an intra-state version of this is UETA.

[mehrdadn]

Could I ask which part of this "case law supports in spades"? I imagine you're not claiming they have to accept emails (?) and otherwise I don't even see how you could e-sign this to begin with; you have to write the letter that ends up in their P.O. Box somehow, so you have to make the statement yourself and put your personal signature on paper (via ink or toner or otherwise is not the point) and mail it to them. But here you don't even write the letter or sign the letter yourself in any sense of the word. Like if a judge asked you "you need to have written and personally signed this letter for it to be valid; did you do that?" would you just give a straight unqualified "yes" and believe that would fly?

[jachee]

"Yes. I personally filled out an electronic signature for my intent to opt out, Your Honor."

[mehrdadn]

"You did not answer my question" is what I would expect after that.

[DannyBee]

The answer to your question would be yes. Your electronic signature, printed out and transformed to a different medium, is still a valid signature.

The whole point of the act is to say that clicking a button on a computer to make a signature that is valid. That it later gets transmitted in some other form is irrelevant.

If i create and print out a docusigned document and mail it, it is still a personally written and signed document.

It is no different if I fill out a form that makes a document for me and click a button to sign it.

If this is confusing, answer my reply above and I'll try to start seeing where the confusion is

[DannyBee]

I'm trying to understand your argument and I guess I don't. So lets start simple so I can understand it better: Do you think a signature made by a human clicking a button on a computer and then printed out is an electronic signature or a physical non-electronic one?

[mehrdadn]

In this case, "a physical non-electronic signature". I could also see it as "a physical copy of an electronic signature" depending on if it's used in circumstances where you're presenting it as merely a copy of the original (e.g. for documentation/records of your contract with that website), but that's not the case here. Either way I don't see it as "an electronic signature" as far as the agreement goes. If it's on paper it's very clearly not "in electronic form".

Actually it's just like how if you send someone a letter via USPS that you typed and printed from Gmail then you've sent them mail, or perhaps a physical copy of an email, but not "an email".

[DannyBee]

Okay, so you are confusing concepts like "what is a signature", "what is an original", and "what would a court accept as valid evidence".

We are going to mostly put aside the third for now.

First: A signature does not change form once created. A physically signed document is a physically signed document, regardless of whether i scan it in. An electronically signed document is electronically signed regardless of whether i print it. Period. The form does not change once created. Only it's originalness and acceptability as evidence.

So then what is electronic.

Second: Your definition of electronic is ... not encompassing enough. Let's go to the E-SIGN act:

"ELECTRONIC– The term 'electronic' means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities."

That's a lot.

"ELECTRONIC SIGNATURE– 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."

Note that because of the definition of electronic in the first part, the second is a lot broader than it looks despite it also being fairly expansive.

It only has to be associated with and then executed/adopted by a person with intent to sign a record. Note that it does not say electronic record (which the act defines) or electronic contract. Other parts of the act are restricted to electronic records/contracts, but given the duality, no court i'm aware of has read the limitation into this part of the act (the opposite is in fact true).

So what i gave you what a clear electronic signature. It was electronic process associated with a contract or record, executed by a person with intent to sign it.

It doesn't matter if it was later printed. The act itself will even support this.

Now we move on to what does the act say about such signatures or contract or ... ;

"

(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;

(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.

...

(g) Notarization and Acknowledgment.--If a statute, regulation, or other rule of law requires a signature or record relating to a transaction in or affecting interstate or foreign commerce to be notarized, acknowledged, verified, or made under oath, that requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable statute, regulation, or rule of law, is attached to or logically associated with the signature or record.

...

(h) Electronic Agents.--A contract or other record relating to a transaction in or affecting interstate or foreign commerce may not be denied legal effect, validity, or enforceability solely because its formation, creation, or delivery involved the action of one or more electronic agents so long as the action of any such electronic agent is legally attributable to the person to be bound. "

Remember again our definition of electronic is very broad here.

The first says the signatures and contracts are valid even when they were in electronic form. That is again true even if i print it out and later mail it. You may run into the issue about what is acceptable evidence to a court for the document itself, but you will not run into the issue of "is the signature on this document, which was originally electronic, valid as a signature".

The second says that a contract (again, very broad definition, definitely includes letter like this one!) can't be denied validity just because you used an electronic record or signature in forming it.

The printing it out doesn't make it less of an electronic signature. The section on notarization makes this even more clear.

It doesn't even require an electronic record (as other parts of the statute explicitly do), it says you can electronically notarize a regular record, as long as you attach or associate it somehow.

Even further, e-sign destroys the argument that you didn't make the contract. It even allows me to use an electronic agent to make, form, and deliver contracts if i like, as long as it's attributable to me.

UETA is even more straightforward (though inapplicable in this particular case):

" (c) If a law requires a record to be in writing, an electronic record satisfies the law. (d) If a law requires a signature, an electronic signature satisfies the law. "

It even says email does not change form:

"“Electronic mail message” means an electronic message or computer file that is transmitted between two or more telecommunications devices; computers; computer networks, regardless of whether the network is a local, regional, or global network; or electronic devices capable of receiving electronic messages, regardless of whether the message is converted to hard copy format after receipt, viewed upon transmission, or stored for later retrieval."

Note the last sentence. There are lots of state court and federal court opinions on this.

Outside of other laws, etc, clicking a button on this form will be considered mailing a physical copy of an electronically generated signature.

[wdewind]

I have some questions about this model. Big ask I know but I am wondering if you'd reach out to me to discuss your interpretation of it (contact info in profile). I think there are some missing pieces here, and I'd really like to discuss this issue in depth with someone who understands the tech and the law as I think there may be a startup in some other places this law is applicable.

[mehrdadn]

Thank you a ton for taking the time to patiently explain all this. So here's where I'm currently stuck. Or actually, I'm stuck in a few places right now:

(1) This is less relevant to this particular debate, but it's highly relevant to the actual opt-out page. On the webpage, I don't see the word "sign" at all. I imagine merely filling in your name into that box and clicking "Submit" doesn't turn your name into your signature. In fact the page explicitly says "the information for the Chase account holder"... which need not be you, so it definitely can't account as the account holder's signature... right? So regardless of the electronic vs. paper issue we still seem to have a pretty fundamental problem that even this page hasn't been signed by the account owner in any shape or form.

(2) This is more specific to our discussion. So if there were a signature box on that form and you put your name in as your electronic signature, what exactly would you have electronically signed? I never (I think) said that you wouldn't have electronically signed anything at all, but rather, that what you signed electronically would not have been the agreement of interest, i.e. the one to be sent to Chase. Rather, as I see it, you would have signed something separate from that -- more like a contract (if it even counts as a contract... not sure how considerations play into this, given it's free) with whoever's running that website, to write your intended letter, put a copy of your signature on it, and basically impersonate you in sending this to Chase. Leaving aside the question of whether this is fraud (which is also something I've been pondering, since Chase would seem to think it came from you), that would mean you never signed that agreement at all. At best, I feel you could only try to argue you gave this site a power of attorney to represent you... not sure how valid a court would find that with the form currently as-is. So I'm still struggling to see how you could claim to have signed the agreement sent to Chase.

(3) The "electronic agent" thing seems like a red herring (I'm not sure why you brought it up) since it seems to refer the software, not the human on the other side.

(4) Is this really a question of whether the agreement is valid "solely because it is in electronic form"? In my view it's a question of whether it's valid "because its terms for it taking effect are followed". One of the terms was signing it in electronic form, but that's just (if you will) an implementation detail the way I see it. This may be my CS-y brain but the law sounds like it's intended to address governmental "discrimination" against electronic signatures (if you will), not private decisions on how to form valid agreements. It seems kind of like how, even though the law requires that a $100 bill be valid as legal tender for all private debts, no store owner is obligated to accept a $100 bill as a payment of $100 for goods you haven't officially bought yet.

[paulgb]

I spent an afternoon looking into this a few weeks ago (I ran a mass opt-out campaign for Equifax a few years ago[1] and wanted to do it again for Chase) and I came to the exact same conclusion you did. I want to appreciate what’s going on here but at the same time it seems irresponsible to give people the impression that they have opted out when they haven’t.

[1] https://news.ycombinator.com/item?id=15207151

[JumpCrisscross]

> the idea of the statute seems to be that the government will not void, nullify, or refuse to enforce the terms of an electronic contract

Unless Chase explicitly said wet signature, then a government court would find the electronic signature valid.

[mehrdadn]

While I disagree on that point, what about the fact that the terms require you to mail it yourself.

Edit: Also, I'm not sure what "wet signature" means. The claim was not quite that the signature has to be in ink. The debate is over whether you (not someone else) are performing the signing, and whether you (not someone else) are mailing (not emailing etc.) it on paper (not e.g. a flash drive) or not. Which, to me, means you could sign on your computer/tablet/etc., then print that as your signature with a printer and then mail the form, with no ink involved anywhere in the process. That seems like a pretty reasonable interpretation of "personally signing" the letter and "mailing" it, so Chase would have a hard time arguing you didn't do that. But to type your name on a random website for someone else to print and mail the contract on your behalf? You neither personally signed that letter (whether on the computer or on the paper) nor did you mail it... all you did was casually tell some random guy on the internet to impersonate you to your financial institution.

[Cogito]

Reading the above comment, where does it say it has to be personally mailed?

> Your notice must be mailed to us at P.O. Box 15298, Wilmington, DE 19850-5298.

That sounds like it has to be mailed, but who does the mailing doesn't matter. Similarly, wouldn't matter if you used the post or a courier.

[mehrdadn]

I didn't mean "mail" as in "literally drop off the envelope in the post box", I just meant "mail" as in "write the letter to be mailed". And no, when I say "write" I don't mean it necessarily precludes voice recognition or whatever new counterexample you might be trying to think of now either.

[Cogito]

Fair enough.

I'm not sure what that means though. If I printed off the form from the website would that count as me writing the letter to be mailed?

In any case, in the stuff quoted up top, I don't read this concept that it must be done personally. For example, it seems like it would be fine for my accountant to do it for me (though they may need me to sign it? maybe they can affix a seal or something)

There must be a way for a business to opt out of this clause, right?

[mehrdadn]

Well I imagine the business case (if they even send the same kind of notification to businesses, which I don't know to be true or false) is easy since presumably the business's name is on the account and said business has someone authorized to take care of such paperwork, and I doubt the letter would (or should, for that matter) be accepted if it comes from someone else in the business. Presumably Chase could call back the business's legal department and ask if they weren't sure if it's valid? Dunno, but I don't see it as a very realistic question.

In terms of you as a consumer using the template they gave you, I mean, in principle I would assume it would count (you put your signature on it and mailed it; it clearly signals your own volition and intent to opt out), but I could see a judge saying no if Chase gave a convincing counterarguments why (e.g. hypothetically if Chase had a habit of getting a lot of legitimately fake opt-outs that they couldn't distinguish from yours, and if it would be obviously bad public policy to accept them, then yours probably shouldn't be valid either). Ultimately I'm not claiming gray areas are nonexistent...

[JumpCrisscross]

I agree with you on the mailing part. Was just pointing out that a personal signature and electronic signature are identical unless specifically stated otherwise due to the E-Sign Act.

[mehrdadn]

Re: that part: but you don't even have any way to sign this electronically to begin with. They did not provide you with an electronic form/page/whatever to sign, nor an electronic address to send your signature to. The contract required you to personally sign and mail a letter into that P.O. Box, and unless you plan on downloading your signature into that P.O. Box, you don't really have any other option besides paper (unless you get clever with papyrus or something I guess). No matter how I slice and dice it I don't see how the E-Sign act has any kind of relevance here... except perhaps for the part that if you keep a scanned copy of your letter for your records, that'd be considered just as valid of a record as a photocopy?