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10 May 2011

Etched in stone

What is the value of a signature? More to the point, what is the value of a "wet" signature? Although some states have taken steps to modernize the requirements for certification of construction documents and other legal documents, others are mired in practices that haven't made sense for a long time.

Of those states that allow something other than a manual signature to certify documents, some allow only software encryption, while others allow a facsimile of a signature. The result is a mix of methods, requiring design professionals to verify requirements for each state. To make things more interesting, states and local agencies are inconsistent in the way they interpret or use state statutes.

What really makes sense? Is a wet signature necessary? What does it prove?

The history of wet signatures is nearly as old as writing. Centuries ago, when few people could read or write, laws allowed a person to sign a contract merely by making an "X" or other mark. I wouldn't be surprised to learn that many documents were explained in terms not used in the documents, then used against those who "signed" them, the argument being that they agreed to the terms, even though they could not read them. Those laws are still with us, and remain subject to abuse.

Despite what is permitted by statutes, many architects and engineers refuse to make use of alternative methods of certification, and insist on manually signing documents. If wet-signed documents are required by statute there is no point in arguing, but when facsimile signatures are acceptable, there is no reason to continue using wet signatures.

With today's technology, anyone can go to the builders exchange, get a certification page, create an image of a signature, and put that signature into another document. After copying or printing, it will be virtually impossible to tell if copies of the new documents were produced from an original with a wet signature. Heck, I could have done the same thing years ago with old-fashioned cut-and-paste.

Consider a document that has a wet signature. Unless you were present when the document was signed, you can't tell if it had been signed by the person whose signature you see, or by someone else. So what does it prove? Should we take it a step further, and require notarization? Then we would have a signature, and a notary seal. But does that really prove anything? Not really; all it would prove is that a person with proper credentials - which might have been forged - signed the document.

It reminds me of a M*A*S*H episode, when Radar asked the colonel to sign a document, then initial his signature to show that he signed it.

Electronic and digital signatures


The terms electronic signature and digital signature often are used interchangeably, but there is a difference. To make it interesting, each state has its own definitions, and its own rules for how they are used, while the federal government has definitions and rules that apply to interstate commerce.

In general, an electronic signature is any electronic thing that is used to show that the intent the person who uses it is to sign a document. In common definitions, it can be a symbol, a process, or even a sound. In many cases, the symbol is a facsimile of the person's signature, reproduced as an electronic image, typically a jpg image or an electronically reproduced document bearing a "real" signature. Most of us use a form of electronic signature without thinking about it; any time you use an ATM or pay a bill online, you are using a process that indicates you agree to making that particular transaction.

In contrast, a digital signature is a form of encryption that can be used not only to verify the origin of a document, but to indicate if the contents have been changed. In practice, it is more "real" than a wet signature. For example, someone could alter the content of a fifty page paper document without much trouble, and with little chance of detection, as long as the page with the signature was left intact. Although technically possible, it is extremely difficult to break the encryption and alter a digital document. Digital signatures would appear to be the best certification method, but I doubt that many firms have the necessary software. Even if encryption were used, it's likely that many recipients would be unfamiliar with it, and would insist on "real" signatures.

Use of both electronic and digital signatures is essential for today's commerce. If we still relied on wet signatures, there would be no ATMs, eBay, or credit cards. We would be required either to appear in person, or to send paper documents with wet signatures (which are easily forged) for every purchase and bank deposit. Not quite what we've become accustomed to!

Federal and state governments not only approve, but encourage the use of both electronic and digital signatures. The Electronic Signatures in Global and National Commerce Act (ESIGN) states that "electronic" means form, and that a contract or signature “may not be denied legal effect, validity, or enforceability solely because it is in electronic form”.

The Government Paperwork Elimination Act (GPEA) required federal agencies to use electronic forms, electronic filing, and electronic signatures to conduct official business with the public whenever possible. A practical result many of us enjoy is electronic filing of our income tax returns, if anything related to the IRS can be considered enjoyable.

Certification of construction documents

Given the widespread acceptance of electronic signatures, requiring wet signatures for construction documents simply doesn't make sense. Beyond that, the statutes that govern certification of construction documents vary widely from one state to another, and can be a problem for the unwary.

Of the states I have worked in, most have a single licensing board for all design professionals, but one has one board for architects and another for engineers and surveyors. In that state, the governing statutes are similar, but not identical, for the different professions.

Some states require the use of a seal, while others allow an electronic image of the seal. Some require wet signatures, others do not. Some require that all drawings be signed, while others allow signatures to appear on only the cover page. All accept a single certification page for project manuals. When wet signatures are required, the number of copies required, and the purposes for which they are required vary. As if that weren't confusing enough, interpretation can vary within a state, and local governments sometimes accept documents that do not comply with statutes.

I think we're making progress, and someday, electronic signatures may be acceptable everywhere. But until you know what is required, ask the agencies you're working with what they require - and then check the applicable statutes.

3 comments:

  1. Thanks for great post

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  2. Nebraska is revising its requirements for certification of construction documents, addressing the need for wet signatures. Another interesting provision requires a "coordinating professional" for each project:

    "Projects involving more than one licensed architect or professional engineer shall have one designated as the coordinating professional. The coordinating professional shall apply his or her seal and signature and the date to the cover sheet of all documents and denote the seal as that of the coordinating professional."

    The coordinating professional must be a licensed engineer or architect, and is not automatically the architect. This new requirement makes sense, and should be considered by other states.

    See http://1.usa.gov/ZX5tJY.

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