The most significant legal problem with electronic signatures appears to be related to evidentiary rules and who bears the burden to prove that an electronic signature was executed by the party who "owns" the eSignature credentials; see How to Think About Electronic and Digital Signatures A Tutorial From a Litigator's Perspective. The article explains how rules of evidence make it easy to introduce documents as evidence if they are signed with a holographic signature belonging to one of the parties in the case. But when documents are signed with an electronic signature, it may be easy for opposing council to shift the burden of proof that the "owner" of the eSignature credentials actually executed the signature. With holographic signatures there is a common law presumption of attribution from mere ownership, and that presumption may not apply to electronic signatures.

However, it may be possible to rectify this issue by inserting appropriate legal language into the eSignature credential registration and/or signing ceremony processes. For example, in the process of applying for eSignature credentials, an applicant could be asked to accept that whenever an electronic signature is affixed using the applicant's unique credentials, it will be presumed to have been affixed by the applicant, and the burden of proof for repudiation of their electronic signature will be on the applicant. Here is example language from a prior version of the Illinois Electronic Commerce Security Act

In resolving a civil dispute involving a secure electronic signature, it shall be rebuttably presumed that the secure electronic signature is the signature of the person to whom it correlates.

The act quoted has been amended and no longer contains the referenced language, but it may still be effective and appropriate for our limited application. The language presented in the signing ceremony would presumably also reinforce the concept of presumption of attribution.

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