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    April 2011

    Electronic Waivers

    Many educational institutions use electronic waivers to transfer risk in a variety of programs involving students and others.  Examples include releases pertaining to school health insurance, club sports, enrollment, and summer programs. United Educators (UE) members often seek guidance on how to establish legally enforceable electronic waivers.


    E-SIGN and UETA

    Legal standards have been put in place to govern the use of electronic documents to conduct binding transactions. In 2000, the federal  Electronic Signatures in Global and National Commerce Act (E-SIGN) authorized electronic formats as legally binding agreements. In addition, most states and the District of Columbia have adopted a version of the Uniform Electronic Transactions Act (UETA), which governs electronic transactions. E-SIGN and UETA differ in some respects and institutions should confer with legal counsel to confirm the requirements in their state.   

    While E-SIGN and UETA share the common purpose of making contracts and signatures obtained in electronic form valid and enforceable, neither requires the use of an electronic format. Moreover, certain types of documents, such as an eviction of residence and termination of health insurance, require a written signature.

    E-SIGN requires that a “consumer” consent to the electronic transaction and be provided the right to conduct the transaction in paper form.

    Both E-SIGN and UETA provide that electronic records may be used to satisfy record retention requirements imposed under other laws. Retained records must remain available to persons entitled to access them. In addition, educational institutions need to have good storage procedures so that they can retrieve such records in response to a legal claim.


    Validity

    Electronic waiver, assumption of risk, and release forms must have the same essential attributes as their paper and ink counterparts to be legally enforceable. Generally, they must pertain to a voluntary activity, be drafted in a clear and conspicuous manner, and be signed by persons who are qualified under law to sign a binding contract. 

    The following issues also carry special importance for electronic waivers:

    • Authentication. A process must be in place to verify the identity of users who electronically “sign” the forms. This may be accomplished through creation of a user name and password and confirmation of receipt of a verification email. Or, the user’s personal information may be matched to previously stored information such as a student ID number. “Digital signature” systems developed by vendors such as Verisign also provide a reliable means of verifying users. 
    • Integrity and Confidentiality. A mechanism must also be in place to ensure that electronic documents are not modified after they are signed. Encryption algorithms are a common way to guard against unauthorized changes by “locking” a file once it has been signed. A related requirement is that electronic documents are secure from unauthorized disclosure, especially if the file contains personal information.  
    • Attribution. To establish that the user intends to be bound by his or her electronic signature, institutions commonly require that one or more dialog boxes be “clicked through” to acknowledge the effect of signing the document.

    Resources

    Checklist: Drafting Effective Releases
    E-Discovery Toolkit
    U.S. Federal Trade Commission: Electronic Signatures in Global and National Commerce Act


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