ESRA’s Public Policy: A 2017 Primer

Public Policy is at the core of ESRA’s reason for being, and the focal point for much of our activity. The current driver of Public Policy for ESRA, Ken Moyle, sat down to discuss these initiatives in depth.

Ken’s Background

In 2006, I was tapped to be general counsel for a then very small electronic signatures company. Back then, no one knew what that meant. I was so intrigued with the concept and idea of doing online contract execution that I fell in love with the technology and concept immediately. I was fortunate that role was not just general counsel but also about increasing acceptance of using e-signatures.

I have been advocate and evangelist for it ever since.

My ESRA involvement happened just after that. Things were just being kicked off back then and ESRA was a natural fit for many people and vendors in the business, especially in financial services.

Driving Public Policy for ESRA

It doesn’t take long before you bump up against obstacles created by current law and current thinking about law that hinder e-signatures. They’re either accidents of legislation or attitudes that never considered that what was previously done on paper can now be done on a computer. Attitudes and policies didn’t magically change with the new laws.

Public policy is inextricably intertwined with that. Over the past two years, I’ve been committing full-time efforts toward moving public policy initiatives forward for ESRA.

Early Wins for ESRA’s Public Policy Initiative

If you look at ESRA’s formation, it was originally the Electronic Financial Services Council, so public policy is in ESRA’s DNA. In the past, things were very reactive and driven by emergencies. For example, in 2009, right after the mortgage meltdown, the Federal Housing Administration was converted from an outlier that had underwritten about 2% of first-time mortgages to 51%. They had a policy where they weren’t sure if they should be accepting e-signed purchase agreements from realtors, which put a major hold on accepting e-signatures.

ESRA worked with FHA to inform and educate and create a policy on third party documents that allowed e-signed documents.

We’ve also worked closely with the IRS and helped them understand e-signatures and come out with public policies around certain documents being e-signed.

We continue to move forward with certain states, like California, Washington, and Virginia, where efforts to adopt e-signatures have moved forward.

Today’s ESRA Public Policy Committee

Members are all volunteers helping move things forward. We have a very high priority issue around electronic notary and the issues around notary. Both are related but have their own issues. There’s been a very uneven application and acceptance for those around the United States, and ESRA is about uniform adoption.

Certain states have non-uniform laws that don’t comport with the laws of other states, including California and others that don’t have a uniform law for electronic transaction acts. Consumers are at a disadvantage in some of those states because of that.

Electronic recording and electronic title are both in the offing and have their own public policy issues that need to be resolved before they’re universally accepted. There are 3,600 jurisdictions in the US that oversee recording of deeds and other documents. How do we get uniformity when each one has its own rules? We work with organizations dealing with that to make sure e-signed documents aren’t treated differently. If the documents themselves are electronic, that’s a challenge that we’re also addressing.

We are also working on a lobbying day in DC and have just adopted a keen interest in electronic will legislation. Wills and codicils aren’t automatically covered by laws in most states, so there’s new interest in removing those exclusions and moving forward with that. There’s also interest in getting electronic wills going.

There are also federal agencies that aren’t uniformly accepting electronic documents, such as parts of the Social Security Administration, so we are working on those too.

The Tactics Used to Move Initiatives Forward

We have a well-documented series of steps we go through for an issue. Our members can bring any issue they deem appropriate to the committee. They have to do a WOT analysis (weakness, opportunity, threat) and tell us what we’re trying to achieve with it and who the audience is for the initiative.

That helps us decide how to move forward with the initiative.

The Lobbying Day in DC

This will be the third one. The lobbying days are meant to be educational and enjoyable. The primary purpose is to advance interest in the policies we’re currently moving forward, which involves meetings with federal agencies, in addition to members of Congress. It’s a great opportunity to create relationships.

If there are no pending bills in Congress, our real work is dealing with agencies affecting the outcomes we want, such as FHA, the IRS, the Office of Management and Budget, and so forth. There are outcomes we want to achieve out of those meetings.

How ESRA Members Can Become Involved in Public Policy

There are many opportunities to do so. Well over half the ESRA members are represented on the public policy committee in some form. There are many ways to get involved. As issues become more salient to our members, we listen to them.

One of the things involved in the analysis of issues is the threat. Sometimes legislation comes along that has the best of intentions but threatens the long-term goals of ESRA, so we need to deal with potentially redirecting that legislation.

The Public Policy Committee’s Schedule

We meet by conference call on the third Thursday of each month at 2 pm Eastern time. Members can use their credentials to log into the SANA database and see what the committee is dealing with. People who don’t have credentials yet can email me at ken.moyle@esignrecords.org.

Once you’re in the committee, you can add yourself to projects and participate in any way you deem fit.

There’s also a Public Policy tab on the ESRA Records website. 

(Ed. note: Right here – ESRA Public Policy Page)

The National and Global Status of E-Signatures

In an era where driverless cars have been introduced in the past couple years and rules are already being created around them, it’s distressing that we even need an association for e-signatures. But it’s because we’re dealing with change in a sacred rite and ritual that’s been around for a thousand years, which is written contracts signed by hand.

So much of our current laws and mindset are rooted in the presumption that writing has to be on paper and the signature has to be in ink. Even though we’ve changed all that with legislation, hearts and minds change slowly and laws change even more slowly. I don’t think we’re in a place that everyone thought we would be when the first law was signed by President Clinton, but we do feel there’s a ramping up in activity around the issues we’re dealing with right now.

How to Get in Touch with Ken and Get Involved

Email me at ken.moyle@esignrecords.org or email K6 Partners at info@k9partners.com.