Tuesday, May 22, 2007

Computer Forensics – A Brief Description

Computer Forensics – A Brief Description

Computer Forensics is the function of utilising scientifically proven methods to assemble together and process data found on a digital device, (computer, hard disk drive, mobile phone, memory card etc), and interpret that data for possible use in a court of law or other theatre of investigation. The evidence may assist in the prosecution or a criminal, help in the defence of an accused person, or be of intelligence to an individual who is seeking knowledge for either personal or professional reasons.

The main users of Computer Forensics are law enforcement officers, as a large percentage of crimes in some way utilise digitally stored data. This data could be a phone call made on a mobile phone, (or cell phone), which could place an individual at the scene of a crime, (or of course away from it), accounts for illegal activities such as drug sales, images of paedophilia, human resource issues, hacking, email abuse, unauthorised data duplication, IP theft etc. Corporate organisations are utilising computer forensics more and more now as they often have to investigate incidents such as inappropriate computer use, inappropriate email use, unauthorised data duplication and disloyal employees. Human Resource departments and Internal Security are the biggest users of these specialist corporate services. Private individuals may also use these services. It may be the lover cheating on their partner, or inappropriate internet use by a family member.

Computer Forensics or Cyber Forensics as it is also known, is now taught at many colleges and universities around the world, and is available to both the law enforcement community and private individuals.

What to do if you suspect illegal or inappropriate activity on a computer or digital device:

1. Turn the power off – Pull the plug out if necessary
2. Secure the ‘exhibit’. Don’t allow anyone access to it, security seal it if possible
3. Contact a Computer Forensics Expert

What NOT to do if you suspect illegal or inappropriate activity on a computer or digital device:

1. Call your IT manager, or one of your technical staff
2. Get them to ‘see’ if the user has been looking at ‘dodgy’ websites or if any important files are missing
3. Sack the member of staff

The analogy of the above:

Imaging a body lying in a muddy field. There is a blanket over the body and something petruding from it. By not following procedures, what you will have done is the same as follows:

1. See the body
2. Walk up to the body �n the field
3. Take the blanket off the body
4. Move the body to ‘have a look’
5. Put the blanket back over the body – ‘like it was before’
6. Leave the field

What you have just done:

Entered the scene of a crime, left YOUR footprints all over the muddy field, left YOUR fingerprints on the body and blanket, left YOUR DNA all over the place.

You then expect to call the relevant organisation/authority and have them try and find evidence, which has just been tainted by YOU or YOUR STAFF. This is not a good start, and could make the case in question inadmissible.

Remember that this is a very specialised service provided by experts. Use experts to do the job correctly in the first place, then there shouldn’t be a problem.

Simon Steggles
Disklabs Computer Forensics

About the Author:
SIMON STEGGLES Disklabs Data Recovery Disklabs Computer Forensics DIRECTOR Background Simon is an owner of 1st Computer Traders Ltd, the company that owns Disklabs Data Recovery Services and Disklabs Computer Forensics Services. Simon originally set up the Disklabs Data Recovery Services part of the business in 1997, and started Disklabs Computer Forensics Services in 1999. Natural organic growth meant that new business premises were required for the Disklabs companies, and in December 2005, a further building was secured to accommodate the rapidly growing Disklabs Computer Forensics Services. He has a background of military, (Royal Navy communications and intelligence), and has principally dealt with hard disk drives ever since in roles of buying, selling, wiping and repairing, with the last two roles as business owner. Having completed courses in various computer and mobile phone forensics practises, as well as evidence handling procedures, Simon directs the data side of the business, and drives new business. Qualifications and Training  FTK Boot Camp, Dec Wyboston 2005  PRTK Boot Camp, Dec Wyboston 2005  DNA, Dec Wyboston 2005  FST Mobile Phone SIM examination, Southampton Nov 2004  FST Mobile Phone USIM examination, Southampton Nov 2004  .XRY Mobile Phone Examination, Tamworth Jan 2005  Evidence Handling Procedures, Milton Keynes Feb 2004 Simon, along with Matt Jones founded the 1st Computer Traders Ltd in September 1997. The business has steadily grown into the multi division company that now incorporates Disklabs Data Recovery Services, Disklabs Computer Forensics Services, and 1st Asset Management, a new division started in January 2006. The new forensics facility was set up to ensure that proper practise and procedures are adhered to whilst dealing with the law enforcement agencies that have very special security requirements, such as security locked evidence cages, proximity readers that only allow authorised personnel into their respective offices/labs/evidence cages. In 2002, Simon became a co-opted director of the Professional Computer Association, a year later he was voted as a full director of the PCA. In 2006 Simon was promoted to the position of Vice Chairman of the PCA, a not for profit organisation which represents in excess of £50 Billion of revenue within the UK and Ireland. Prior to Disklabs Data Recovery Services and Disklabs Computer Forensics Services, Simon was an active director in 1st Computer Traders Ltd, where he implemented the procedures for the test, repair, and data destruction routines used by the technicians of 1st Computer Traders Ltd. The work was rewarded with accreditations by various hard drive manufacturers including Seagate, Maxtor, Western Digital and Fujitsu. In June of 2002, 1st Computer Traders Ltd was awarded the highly coveted ISO9001-2000 for Quality Control. Prior to 1st Computer Traders Ltd, Simon was the Managing Director of United Computer Services (UK) Ltd, another technology based company, trading exclusively in hard disk drives. Hard drives were bought and sold across the world. Within 5 years, and with only 3 staff, Simon led his team to a turnover of £7,000,000.00, and sold the company to his business partner who continued to trade until the business was bought again. Prior to United Computer Services (UK) Ltd, Simon worked at various computer supplies companies gaining experience. Upon leaving school, Simon was a member of the Royal Navy. Specialising in communications, Simon also worked in the Legal Division and in Naval Intelligence.

Saturday, March 24, 2007

Credit Card Bankruptcy

by Michael Malega

Writing this article for you was a pleasure, I desire it be likewise for your to read it.

As people use credit cards to make payments for items that they are buying, sometimes they overuse their credit card. This will not become a problem if the person has a way of paying off their debt. There are instances where credit card bankruptcy will have to be declared.
This bankruptcy claim can be disputed by the name card issuing agency if they feel that you have obtained the credit card by fraudulent means. If the name card company feels that you are Using the card in an outlaw(a) fashion they can refuse to discharge your debt.

When the credit card company challenges this debt it becomes a non-discharge ability action. In the non-discharge ability activity the credit card issuer will declare that you have obtained your credit card by submitting a fraudulent credit card application. They can also hold that you have received a credit card without any intent to pay any off the debts that you are incurring.

There are many reasons why credit card bankruptcy claims will be challenged. These reasons will include an increased use of your credit card before you register for bankruptcy, or if you have just been issued a new credit card after the credit card company approved your application for the card.

Or perhaps large advancements of cash were made just before you filed for credit card bankruptcy. As these reasons can indicate to your creditors that you are not intending to pay off your debts they will be able to prove to the courts that you are planning on defrauding them.

So if you are intending to file for credit card bankruptcy it is best if you don't use your credit cards for at least Six months before you file for credit card bankruptcy. The less use that can be found with your credit cards will validate your claims that you are in fiscal difficulties.

Before you do file for credit card bankruptcy it is best if you talk the situation over with your lawyer. You can inform your attorney about your integral financial problems and see the assorted courses that you have open.

You must realise that once you have filed for credit card bankruptcy your public record will state that you have undergone bankruptcy for bad credit. This substance that you will need to uprise to various businesses that you are conformable to pay the higher credit rates that you can be charged.

While this course of activity may seem difficult to reflect sometimes it is the only way that you can find a Breathing space to reorganize your financial affairs. Once you have proven that you are in financial difficulties your credit card bankruptcy filing will let you negotiate with your lawyer and creditors the best way to pay their loans back.

I'am glad you have found this article I hope you found the data useful.

About the Author
Michael Malega presents several credit card bankruptcy articles for your information. You can visit Michael's web site at: http://www.bankruptcy-chapter-13-facts.com/Credit-Card-Bankruptcy.php

Saturday, March 3, 2007

What is Litigation Funding?

By Amanda Bellview

Litigation funding is a concept that most individuals that are involved in a lawsuit will find beneficial to them. It is most commonly used in personal injury cases, but can be used for any type of lawsuit in which the individual is seeking funds in a settlement for their hardships, whatever those may be. It has been used in a variety of cases from sexual harassment to worker's compensation and many more. But, what is litigation funding and how do you know if it will benefit you? Take into consideration the number of things that it can offer to you and what will happen if you decide not to use it.

Funding A Lawsuit Through A Loan

Litigation funding is the process of securing a loan in order to pay for the cost of a lawsuit. It costs a good amount of money to see your lawsuit from start to finish. If you are suffering from medical problems and can not work, you probably need the funds to help you to pay your daily living expenses as well. These costs can be covered by your lawsuit loan, as they are often called. Believe it or not, these funds are available to you through litigation funding lenders, who are offering a wide range of options for those that need them.

Another benefit to litigation funding is the fact that you don't need to pay the funds back that you borrow to make these payments unless you actually win your case. When you do win your case, the settlement that you receive will be lessened the amount that you've borrowed to pay for your needs. But, if you lose the case or do not receive a settlement, then these funds are no longer you obligation to pay and the lender will not be able to recover them. It's completely legal and its part of the process of securing litigation funding in the first place.

Other Options?

Are there are other options to consider to fund the loan that you need to pay for the lawsuit that you know you should be filing? You could use a personal loan, credit cards or your own funds to pay these things. Many people don't have the funds necessary and they may not be able to secure these types of loans because of lack of employment or a back credit history due to the restrictions on their funds. Even if you do have these funds, you'll be risking your own money on these expenses, which means that if you do lose the case, you are out all that you've invested in it. That's an expensive risk for you to take.

Working with a litigation funding firm is a good option for those that know they deserve a fair share of the settlement. If you know this and you want to secure the funds that you need to make sure that your case reaches settlement, you'll want to consider litigation funding. It could mean funding a lawsuit that you deserve to win or giving up on it.

Amanda Bellview writes to expand the question base of attorneys and litigants looking for lawsuit litigation or pre settlement funding.

Article Source: http://EzineArticles.com/?expert=Amanda_Bellview

Friday, January 26, 2007

The 5 Most Common Mistakes Made by a New Limited Liability Company (LLC)

The 5 Biggest Mistakes Made by New Limited Liability Companies (LLC) By: Amyli McDaniel, Esq.

Mistake #1 Doing business Before the LLC is Formed

You are personally liable for any business activities or transactions that take place before your LLC is formed. A person can sue you years later for something you did today. If your business becomes successful, those early acts could cause you to be personally sued. Don't think it has not been done. With over 70,000 lawsuits filed a day, this world is filled with people and their predatory litigation attorneys looking for successful small businesses to attack.

Many new business owners put off the formation of their LLC while they work on the other details of starting a business. Once you have decided to start a business, it is a much smarter move to form your LLC at once and then have the LLC itself engage in the other start up activities as opposed to you personally. This is the best way to ensure your liability protection.

Another mistake many business owners make is thinking that once their formation documents (known as "Articles of Organization") have been sent into the state agency, their LLC has been formed. This may be wrong! In many states, an LLC is not formed until the state agency has processed the paperwork and entered the new LLC into the official LLC database. This process can take as long as 30 days or more in some states. The Certificate of Organization is the birth certificate of the LLC and you should wait until you have received this before you enagage in LLC activities.

Now, if you have found that you waited too long and you now need to open a bank account to conduct business or your business needs to sign a contract, hire an employee or otherwise conduct business, most states offer expedited services. The expedite services usually requires the filing of an additional document and paying an expedite fee in addition to the filing fee they charge for the filing itself. In most states, you can have your LLC formed in 3 business days but it will cost you significantly more.

In summary, once you have decided to start a business, form your LLC right away. This will ensure you have more liability protection and it will save you the money and stress of having to form one on an expedited basis to avoid losing business or delaying other start up activities. Mistake #2 Failing to Actually Issue Ownership Interests in the LLC

Many business owners create an LLC but never actually issue ownership interests (known as Membership Units) to the persons that are going to be owners of the LLC (known as Members). It can be easy for you mistakenly think that because you created the LLC, you are automatically the owner of the LLC.

The fundamental premise of an LLC is that it is its own separate entity. When an LLC is formed by a state agency, it does not have owners. Membership Units or a percentage ownership interest in the LLC must be issued to the persons who will be the owners. This issuance transaction needs to be in writing.

The LLC Operating Agreement is the typical place where the LLC issues shares to Members and usually the Members agree to contribute a certain amount of money to the LLC for those Membership Units (this money ob�igation is known as a Capital Contribution).

Make sure that after your LLC is formed, you complete this next step. It is vital to your LLC business because an LLC once formed is a shell entity without any ownership attributes until Membership Units are issued to Members.

If you need a customized LLC Operating Agreement, please visit www.TheLLCExpert.com

Mistake #3 Failing to Create a Management Structure and Appoint Officers

An LLC needs to have a management structure. A management structure determines who has the authority to make decisions on behalf of the LLC. There are two management structures. A member-managed LLC is when the members automatically have the rights to operate and manage the LLC business.

The second is a manager-managed LLC which creates a corporate type structure. A Board of Managers is created and persons who are appointed to that Board have the authority to run the business. All LLCs should appoint the officers (President, Secretary, Treasurer) of the LLC.

The best place to create a management structure and appoint initial officers is in the LLC's Operating Agreement. All LLC's should have an Operating Agreement as this agreement creates the set of rules for your LLC.

If you are a single member LLC, this becomes even more important because you run a higher risk of losing liability protection if you ignore your entity as a separate entity. Remember, your LLC is a separate and distinct entity and this is important to preserve the layer of limited liability protection afforded by LLCs.

If you do not comply with the standard protocols for LLCs, a predatory attorney can try to sue you personally and say that you should be personally liable for the LLC activities because you did not treat the LLC as an entity separate and apart from yourself.

Now, the LLC Acts of most states will have default management provisions that apply if your LLC does not have an Operating Agreement, but those laws are always changing and they can be difficult to apply. Plus, if you have other Members, then disputes can arise as to what voting requirements, profit allocations and other rules apply. The laws may include provisions that you do not want for your LLC.

Another great benefit of LLCs is that the Members can decide amongst themselves how they operate their LLC. Use a well drafted Operating Agreement for your LLC and get all of your Members to sign the Operating Agreement. A great customized LLC Operating Agreement is available at www.TheLLCExpert.com

Mistake #4 Failure to Get Investment Obligations in Writing

The LLC Acts of most states require that all agreements by a Member of an LLC to contribute money to the LLC must be in writing. An oral agreement is not enforceable under the law.

If you are planning on starting a new business with other persons, you will likely get together and decide on how much of the business each of you will own and on what obligations each of you are agreeing to with respect to that business.

Obligations usually include how much money you are each going to contribute to the business and what kind of services and time commitment each of you will devote to the business.

At the beginning of a business, these conversations take place and everyone agrees. An important discussion is how much will the business require in money before it can generate its own cash to operate the business. This amount is known as start-up capital. A typical conversation goes like this: Anne: "John, we are going to need $20,000 over the next year to start this business. If we are going to each work equally and you agree to put in $ 5,000 of the capital, I agree to issue to you 25% of the ownership of the business." John: "Anne, that sounds fair. We will each work equally in the business but because you will be contributing $15,000 and I will contribute only $5,000, the 75%-25% allocation makes sense. Now, I am looking at our budget and most of the money will not be required until 5 months from now when we will move into office space and need to pay our vendors for products purchased- I will contribute my $5,000 then- is that okay?" Anne: "Sure, as long as we are in agreement as to amount, I can front the initial expenses until the 5th month and then the LLC will need your $5,000."

Then John and Anne form their LLC and starts their business. . . forgetting to ever document the agreement among LLC owners (known as Members) in any written agreement. Five months later, Anne asks John to contribute $5,000 and he says he does not feel like he should contribute this money because he has worked more on the business than Anne or. . . perhaps he decided to invest the money elsewhere at that point.

This is a common situation that multi-member LLCs find themselves in often. Any monetary or services obligations should be set forth in writing.

Mistake #5 Thinking that an LLC is a Foolproof Layer of Liability Protection

Yes, it is established that a Member of a properly formed and maintained LLC is not liable for the debts, obligations and lawsuits of the LLC merely by being a Member of the LLC. But, in a realistic business context, persons who are Members are usually not passive owners of the LLC. They are also active managers and operators of the LLC business.

In today's litigious world, all businesses should be run through a limited liability entity such as an LLC. The LLC liability protection is a significant protection vehicle. However, the LLC layer of protection does not extend to all potential liabilities that can arise in the midst of running an LLC.

For example, you may be in a company car driving to see a client when you are in an accident. You will be personally liable for that accident regardless of the fact that, at the time, you were working on behalf of your LLC business. The LLC laws do not cover personal negligence. Your LLC should always have insurance to cover these types of business related accidents. Do not ever think that the LLC is enough to protect you in these circumstances.

Similarly, there are some laws that hold you liable regardless of whether you are operating through an LLC. The most obvious one that might apply is if you are a licensed professional. Doctors, lawyers, accountants, real estate brokers and dentists, for example, are always personally liable for acts of malpractice. If you are a licensed professional, make sure you get the proper insurance. Also, there are certain tax, environmental and securities laws that you can be held personally liable for if your LLC is in violation of those laws and you were the responsible manager.

Do your homework in performing the administrative and other tasks of your LLC and retain the proper professionals to advise you when appropriate.

Finally, you cannot use your LLC to engage in fraud or hide behind the LLC to protect yourself when you engage in fraudulent or unlawful acts. If you break the law or try to defraud others, the law will hold you personally accountable. * * * In summary, the LLC is a wonderful vehicle for providing Members with limited liability protection. But, in order to preserve that protection, you cannot just form an LLC and then forget it exists. Make sure you do the necessary things to honor your LLC as a separate entity and also know that the LLC should not be your sole means of protection- get insurance when it makes sense and always invest in the required knowledge for operating your business which includes getting the right help when needed in your business! www.TheLLCExpert.com
About the Author

Amyli McDaniel is a business attorney with over 10 years experience representing small businesses and small business owners. She has developed particular expertise forming and advising on limited liability entities, commonly known as an LLC. She has written a book "The Six Step LLC Formula for Limited Liability Protection" which is available as an eBook.

Amyli is the founder of the The LLC Expert website where there is a lot of great

Sunday, January 14, 2007

The UFO Lawyer

The UFO Lawyer
By: Francesca Black

Copyright 2006 Francesca Black

If you thought UFO sightings only belonged in science fiction movies and late night TV, and that believers existed on the fringe of society, think again. It is a little known fact that for over thirty years UFO investigations and contact with ETs have been debated even in our respected US courtrooms.

Peter Gersten, AKA the UFO lawyer, is a maverick who for the last twenty years has been blazing a trail for those who have experienced frightening and unexplainable events, by giving them a voice in a society where they have been previously shunned. The founding director of CAUS (Citizens Against UFO Secrecy), Gersten is opposed to keeping UFO information from the American public. Lacking the sensationalism of other publicized court cases, the success of CAUS is not generally known, except among UFO researchers. It may come as a surprise to know that Gersten, representing Ground Saucer Watch, won his first UFO-related case in 1977 against the CIA, which resulted in the release of over 900 pages of UFO-related documents. Even more interesting is the fact that 57 documents were allowed to be withheld, claiming national security considerations. Since that day, Gersten has challenged this claim, forming CAUS and bringing even more relevant issues into the spotlight by bringing them into the courtroom.

CAUS is a non-profit organization dedicated to ending the secrecy that is associated with UFO and ET contact. Targeted projects include the release of information from the government, the investigation into UFO phenomenon and the appropriate collection and dispersal of information.

Gersten and the people involved in CAUS are so dedicated that services are offered pro bono to eye witnesses or individuals who possess physical or other genuine evidence. As would be expected in any lawyer-client relationship, confidentiality is guaranteed.

One might ask how someone becomes a UFO lawyer. Not surprisingly, there is no field specific to this practice. To date, Gersten is the only attorney to successfully sue the government for UFO documents. He trained and practiced as a traditional lawyer for years before finding his niche and committing himself to these projects. Before he became the UFO lawyer, he practiced criminal law in New York for 25 years. He now practices law in Arizona, where he currently is a trial attorney with the Navajo County Public Defenders Office. Maybe in the near to distant future, as more information is released and the public becomes more aware of UFO phenomenon, there will be a greater call for lawyers in this field, and firms may be established for that end. Until then, interested persons would certainly be wise to study science and technology, as well as the traditional courses required for a JD.

Article Source: http://www.articlerich.com

Francesca Black a long time science fiction buff, manages content for UFO Gifts www.ufo-gifts.com and Science Fiction Corner www.science-fiction-corner.com

Monday, January 8, 2007

Where the Law is Headed in 2007?

Where the Law is Headed in 2007?
Author: Gerard Simington

As we approach the end of December, it is time to open gifts and start thinking about 2007. So, what can we expect in the legal field next year?

Where the Law is Headed in 2007?

Predicting practically anything in the future is a risky endeavor indeed. Okay, I think I am safe predicting the sun will rise tomorrow. After all, I am hardly going to hear any objections if it does not. When considering the law, predictions of specific events are a bit iffy, but some general trends can certainly be foreseen.

When it comes to the law, everything begins with the Supreme Court. 2006 was a fairly calm year at the court with few revolutionary decisions. The reason? The changing of the guard when it comes to the justices. We have a new Chief Justice and Associate Justice, both who are known for their conservative views. Although 2006 was calm, both justices lived up to their conservative reputations, which gives us a hint of what is coming in 2007.

The coming year is going to be one of minor and major changes in the case law of the land. With the appointments of Chief Justice Roberts and Associate Justice Alito, the court has shifted to the right. The swing vote on many cases is now Justice Kennedy, who leans to the conservative side of the scale. This will equate in decisions that reduce the rights of individuals, increases the authority of the federal government and limits the regulation of business. On the hot button topic of abortion, it is more likely that the court will put limits on Roe v. Wade instead of simply overturning it, but a complete reversal of the decision is certainly possible.

Moving away from the court system, the other area of law we are likely to see major changes in is intellectual property. Intellectual property law is simply case law and statutes that deal with business assets that are intangible, but valuable. This includes areas such as copyright, trademark and patent law. Forefront in the battle will be the continuing evolution of how these issues translate to the Internet. One can specifically expect to see a lot of lawsuits involving YouTube.

YouTube, of course, is a site that allows people to post videos. The site is hugely popular and was recently purchased by Google. With deep financial pockets, it is now a target for litigation on issues related to copyright and trademark infringement. Specifically, the problem is going to be how these rights translate to videos being posted by people on YouTube, which they do not own. For instance, what is the responsibility of YouTube when someone posts a music video or something? In practical terms, we are looking at the Napster litigation scenario all over again, but with video this time.

Obviously, the legal arena is a huge one. There are many different areas of law and each will be modified in 2007. That being said, a conservative pull back on current law can be expected in Supreme Court decisions, and the application of intellectual property law to the net should be the most volatile areas in the coming year.

Gerard Simington is with FindAnAttorneyForMe.com - find attorney online with our free directory.

This article is free for republishing
Source: http://www.articlealley.com
Gerard Simington is with FindAnAttorneyForMe.com - find an attorney online with our free directory.

Sunday, January 7, 2007

Legal Significance Of Digital Signatures

Legal Significance Of Digital Signatures
by: Nicholas J. Deleault

A cornerstone of United States contract law is the general application of the Statute of Frauds to contractual agreements. Emerging forms of electronic commerce and new types of contractual relationships have begun challenge the very idea of defining the four corners of a contract. Many obstacles concerning contractual relationships arise with the proliferation of electronic commerce, most notably determining what constitutes a valid signature. Traditionally, the Statute of Frauds is a collective term describing various statutory provisions that deny enforcement of certain forms of contracts unless they are reduced to writing and signed by the party to be charged. The problem with this traditional idea of the Statute of Frauds is how it relates to electronic commerce in determining whether the party being charged with the contract has actually “signed” the contract for purposes of enforcement.

Various forms of legislation dealing with internet law have attempted to define and describe digital and electronic signatures for purposes of determining enforceability.

Generally, there are two broad categories of signatures when dealing with electronic contracts.

1. Electronic Signatures (“E-Signatures”)
2. Digital Signatures

I. Electronic Signatures

The Uniform Electronic Transactions Act (UETA) defines electronic signature as “an electronic sound, symbol, or process attached to or associated with, an electronic record and executed or adopted by a person with the intent to sign the record.” UETA, §2. Often referred to as ‘click-wrap’ agreements, these forms of electronic signatures are given a broad presumption of enforceability through acts such as UETA and the Electronic Signatures in Global and National Commerce Act (ESGNCA/ “E-Sign”). These acts make it clear that binding contracts may be created by the exchange of email or by simply clicking “yes” on those click-on licensing agreements that we have all accepted w ith all types of internet transactions. Like the UETA, the ESGNCA does require that consumers affirmatively consent to the click agreements and that the vendor must provide the consumer with a clear and conspicuous statement regarding the effect of agreeing to click, but parole evidence is rarely allowed in order to prove or disprove intent to contract. ESGNCA§101(c)1. By simply clicking “I agree” intent is presumed.

The widespread enforceability of electronic signatures is also recognized as completely valid for purposes of liability protection by the Digital Millennium Copyright Act. DMCA§512(3)(A)(i). As a relatively settled area of internet law, it is important to understand the enforceability of electronic signatures, whether or not intent is manifest from the face of the agreement itself. Since these click wrap agreements are presumptively enforceable, it is important to advise your clients regarding the potential pitfalls accepting terms of an online transaction without fully understanding what they are agreeing to. Simply accepting these terms may interfere with your client’s right to the judicial system for dispute resolution, as click-on arbitration clauses are also generally enforceable. Your clients will not be able to rely on the Statute of Frauds in order to demonstrate that there was no intent to contract. With electronic signatures, intent is an objective standard, generally determined by the simple click of a mouse.

II. Digital Signatures

Unlike electronic signatures, digital signatures are more often than not used as a means of demonstrating affirmative intent. The problems with digital signatures do not stem from inadvertent agreement to terms, but rather from the security and confidentiality of the digital signatures. Generally speaking, digital signatures are encrypted electronic signatures that a third party (often referred to as the certification authority) authenticates as genuine. Unlike the more general electronic signature, a digital signature must be unique and strictly under the sole custody of the party using it. Unlike electronic signatures, where a typed name, a company name or even a logo can all bind the party to be charged by its mere presence, digital signatures offer the agreeing party greater levels of security and efficiency. The general types of signatures will not be enforceable as a digital signature. Because of the authentication requirements of a digital signature, it should be recommended that clients rely on the use of digital signatures for any high-profile or high liability electronic contract.

Digital signature use will only increase in use in the future, as parties to all transactions will seek a heightened level of information security without the fear of accidentally agreeing to unfavorable terms. While there is an inherent fear of paperless transactions, especially with more traditional attorneys and companies, the use of digital signatures makes commerce faster, more secure and more effective and should be recommended to clients when appropriate. The use of digital signatures is even more effective when dealing in international trade, making it no longer necessary to fly overseas in order to demonstrate intent to sign a contract.

While understanding and zealously advising clients to the use of various forms of signatures for electronic commerce is important, it is also imperative to understand that we are still in the early years of a technological revolution, and that part of being an effective advocate is keeping up to date on advancements in the law. Electronic and digital signatures are only the beginning. Advancements in technology will soon allow for the widespread use of biometric identification as a means of demonstrating intent to contract. Principles of contract law will continue to evolve with technology and while the application of contract principles and the Statute of Frauds will not substantially change, their interpretation and use surely will.

About The Author

This article was written by Nicholas J. Deleault, Pierce Law Center ‘07. Nicholas writes select legal articles for the Law Firm of http://www.goldsteinandclegglaw.com/blog, a http://www.goldsteinandclegglaw.com