Prescribing Technology by Law

Lately we discussed on this blog U.S. legislation appearing to validate contracts or signatures done by blockchain, by saying that ‘electronic record’ and ‘electronic signature’ under the states’ e-transactions legislation included blockchain. There was considerable thought that this was not necessary, that the conclusion was obvious (or badly wrong, if there could be a non-electronic blockchain).

Apparently this kind of legislation has been around for a long time. Here is a note (h/t Ian Kyer) about Pennsylvania legislation in the 1890s saying that typewriting was writing for all legal purposes. Could this have been previously in doubt, given that printed material was already considered to be writing (as the note says)?

The note raises some interesting policy issues – notably about whether typewriter ribbon ink was as durable as ink for pens – but the legislation did not deal with that issue.

I would suggest that if doubt needed to be removed, it would have been preferable to follow the example of the UK’s Interpretation Act of 1889, which provided that ‘writing’ included a number of specific techniques such as printing, lithography, photography(!) “and other modes of representing or reproducing words in a visible form.”

Most Canadian provinces – probably all of the common-law ones – followed the UK example before long. Recently some of them have been amended to accommodate electronic communications. When Ontario moved the Interpretation Act into a part of the Legislation Act, 2006, it dropped the extended definition of ‘writing’, so as to avoid deciding if an electronic record was itself writing, as popular usage was beginning to accept. One issue with doing so was that the Electronic Commerce Act, 2000, was based on the principle that an electronic document was NOT writing, but under the legislation could serve as a functional equivalent of writing.

In short, in the 19th century as in the 21st (and the one in between), technology-neutral legislation is usually to be preferred to technology-specific laws.

Do you agree?

Comments

  1. For purposes of accessibility, would an electronic voice recording suffice as a signature to accomodate persons with a disability preventing use of their limbs and who are mentally competent to enter into a contract? In other words, would a voice recording be considered an electronic document or electronic signature?

  2. Verna, it is my personal opinion that an electronic voice recording – a voice-mail message, for example – can be both an electronic document and (if the content is created intending to sign the document) an electronic signature.

    Not everyone agrees, and not everyone is comfortable with this idea, in part because of evidence questions: how easy is it to save the voice-mail message and demonstrate its reliability?

    Some of the early e-commerce enabling legislation (Australia’s sticks in my mind on the point, though they have amended it since for other reasons) made it clear that recordings of oral messages, say in a voice-activated- response system, were not covered by the statute and not recognized as equivalents of writing.

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