Dr. Jeffrey Kahn and rehabwoRx Physical Medicine and Rehabilitation, PLLC
5000 Brittonfield Parkway, Suite A122, East Syracuse, NY 13057
Phone (315) 234-9679 Fax (315) 234-9680
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NY State Electronic Signatures and Records Act (ESRA) Guidelines
The federal Electronic Signatures in Global and National Commerce Act ("E-Sign"), 15 U.S.C.A. §§ 7001-7031 (West Supp. 2003) provides that electronic records may not be denied legal effect, validity or enforceability solely because they are created electronically.
New York State enacted the Electronic Signatures and Records Act ("ESRA") as part of Chapter 4 of the Laws of 1999, adding the State Technology Law as new Chapter 57-A. ESRA is consistent with federal E-Sign. The term "electronic signature" is defined in N.Y. State Tech. Law § 102(3) (McKinney 2003) as:
Chapter 314 of the Laws of 2002, adopted on August 6, 2002, amended ESRA to provide consistency between state and federal laws that support and promote the use and acceptance of e-signatures and e-records in electronic commerce and electronic government applications. The amended ESRA definition of electronic signature (subdivision 3 of Section 302) has been modified to conform to the definition found in the Federal Electronic Signatures in Global and National Commerce Act (E-Sign). ESRA now defines an electronic signature as:
*****an electronic sound, symbol, or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record.
N.Y. State Tech. Law § 104 (McKinney 2003) authorizes the electronic facilitator to establish rules and regulations governing the use of electronic signatures to which you may wish to refer. See N.Y. Comp. Codes R. & Regs. tit. 9, Part 540 (2003). N. Y. State Tech. Law § 105(3) (McKinney 2003) provides that an electronic record has the same force and effect as non-electronic records. Neither the law, nor the Office of Technology regulations implementing the law, mandates the use of any particular electronic signature technology.
Both federal E-Sign and ESRA authorize the use and acceptance of electronic signatures and electronic records in commercial transactions, and confirm their legal validity. The Department issued Circular Letter No. 33 (1999) in which it advised that insurance transactions may be effected by electronic means since most existing provisions of the Insurance Law do not proscribe such activities. This Department has consistently encouraged the use of electronic transactions in the insurance business. In addition, the Department has opined that an electronically signed document may constitute a record that is maintained in a durable medium within the meaning of N.Y. Comp. Codes R. & Regs. tit. 11, § 243 (1996) (Regulation 152).
Nonetheless, every Department licensee that chooses to incorporate electronic signatures into its business operation must decide for itself which electronic signature technology is best for it. Before a licensee implements an electronic business process, the process should be reviewed in order to assure that the electronic technology it wishes to adopt and the business process changes such technology entails will keep it fully in compliance with applicable provisions of the New York Insurance Law and regulations.
The information and Electronic Signature analysis listed above was provided by the Office of General Counsel. For further information regarding Electronic Signature please visit: www.dfs.ny.gov .