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Electronic Signatures and Records Act (ESRA)

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The Electronic Signatures and Records Act (ESRA) provides that "signatures" made via electronic means will be legally binding just as hand-written signatures now are. 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 other formats such as paper and microfilm.

 

The legislation also designates the state Office of Information Technology Services as the Electronic Facilitator responsible for promulgating rules and regulations for programs authorized by the bill. As the Electronic Facilitator, ITS assists private and public sector parties in understanding and using the Electronic Signatures and Records Act (ESRA) to support and encourage electronic commerce and electronic government in New York State.


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Question:
What does ESRA do?

 

Answer:
The Electronic Signatures and Records Act (ESRA) gives electronic signatures and electronic records used or accepted in New York State the same legal validity and effect as hand-written signatures and paper-based records, subject to certain exceptions stipulated in ESRA. ESRA also enhances and clarifies the authority of government to create, accept and retain records in electronic form, and designates the Office of Information Technology Services (ITS) as the Electronic Facilitator responsible for promulgating regulations and guidelines regarding the use of electronic signatures and records in both the public and private sectors in New York State.


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 State.

 

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

 

Answer:
Yes, since March 27, 2000, when the first regulations took effect, electronic signatures and records used in New York State have the same validity and effect as non-electronic signatures and records, subject to certain exceptions stipulated in ESRA.


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, including persons and entities in the public and private sectors.


Question:
Can electronic signatures be used for everything?

 

Answer:
No. Certain documents are excluded including: wills, trusts, decisions consenting to orders not to resuscitate, powers of attorney and health care proxies, with the exception of contractual beneficiary designations, and other documents specified in ESRA or as determined by the Electronic Facilitator. While generally negotiable instruments and other instruments of title are excluded from the provisions of ESRA, those which are electronically created, stored or transferred in a specific manner stipulated by ESRA are not excluded.

 

ESRA has been amended to allow individuals to make anatomical gifts to the New York State Donate Life Registry for Organ and Tissue Donations using an electronic signature, thereby removing anatomical donations from the exception in ESRA which prohibits the use of an electronic signature or record to dispose of an individual's person or property upon death.

 

Effective September 23, 2012, ESRA will allow the use and acceptance of electronic signatures and records with conveyances and other instruments recordable under Article Nine of the Real Property Law, and permit recording officers to electronically accept for recording or filing digitized paper documents or electronic records of real property instruments such as deeds, mortgages and notes, and accompanying documents.


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

 

Answer:
The use of electronic records and signatures is voluntary, unless otherwise provided by law; however, electronic signatures and records used in New York State have the same validity and effect as non-electronic signatures and records, subject to certain exceptions stipulated in ESRA.


Question:
What are the Electronic Facilitator's responsibilities?

 

Answer:
The Electronic Facilitator (Office of Information Technology Services) 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.
  • Providing informal consultations and opinions on the application of ESRA to parties in the public and private sectors.

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

 

Answer:
ESRA is a statutory law adopted by the State Legislature and Governor. ESRA authorizes ITS to adopt a regulation to help implement ESRA. Title 9 NYCRR Part 540 is the regulation adopted for that purpose, and has the effect of law just like ESRA.

 

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