Did the federal E-SIGN Act force New York county clerks to accept real estate deeds and other recordable instruments bearing only electronic signatures (and not handwritten ones)?

Plain-English summary

In 2000, Congress passed the Electronic Signatures in Global and National Commerce Act (E-SIGN), Pub. L. 106-229, which generally requires that an electronic signature not be denied legal effect just because it is in electronic form. New York had enacted its own State Technology Law in the same era, which validated electronic signatures broadly but carved out conveyances and other instruments recorded under Article 9 of the Real Property Law.

Westchester County's Acting County Attorney asked the Attorney General whether E-SIGN forced county recording officers to accept deeds bearing only electronic signatures, despite the state-law carve-out. AG Eliot Spitzer's office answered that there was a "substantial possibility" the answer was no. Three reasons. First, E-SIGN's preemption operates on transactions in or affecting interstate or foreign commerce, and recordation is a "uniquely governmental" function that the bill's congressional record (Congressman Dingell's floor statement, the OMB implementation memo) said was not covered. Second, E-SIGN section 104(a) preserves existing state regulatory standards and formats for filings, which arguably reaches the recording acts. Third, E-SIGN section 101(e) lets a state deny effect when the electronic record cannot be retained and accurately reproduced, which protected county clerks who were not yet equipped to store digital records.

The opinion was cautious. It described the federal preemption analysis as without "clear legal authority that provides a definitive answer" and said the issue might ultimately be decided by the courts.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

In particular, New York and many counties have since adopted electronic recording programs for real property instruments. The State Technology Law has been amended. The Uniform Electronic Transactions Act (UETA), which New York has not adopted, has been the model used by many states and may bear on related questions. Anyone acting today on a recordation question should review current Real Property Law Article 9, the current State Technology Law, the county clerk's procedures, and any applicable e-recording statutes (often added through chapter law amendments to the RPL).

Common questions

Q: What did E-SIGN do at the time?
A: E-SIGN, effective October 1, 2000, established a federal rule that electronic signatures and records cannot be denied legal effect solely because they are in electronic form. It generally preempts contrary state law for transactions in or affecting commerce. It also preserved certain state regulatory authority (section 104) and family-law and probate-law domains (section 103).

Q: Why did the AG describe recording as "uniquely governmental"?
A: The opinion drew on Congressman Dingell's floor statement and President Clinton's signing statement, which said E-SIGN was meant to govern consumer and commercial transactions, not "uniquely governmental" functions. Recording a deed at the county clerk's office is a state-mandated public-record function rather than a private contract between parties.

Q: How did State Technology Law § 107(3) figure in?
A: New York's electronic-signatures statute carved out conveyances recordable under RPL Article 9. Even setting aside the federal preemption question, state law itself did not authorize recording officers to accept electronic signatures on those instruments at the time of the opinion.

Q: Has anything changed since 2001?
A: Yes. State and local e-recording programs have been authorized by later legislation (often through specific RPL amendments and through Article 9 sections enabling electronic recording). The carve-out in State Technology Law has been relaxed. Anyone advising on real-property transactions today should not rely on this opinion's bottom-line conclusion without checking current law.

Q: Was this opinion ever tested in court?
A: Not directly, as far as the AG noted. The opinion expressly flagged that "the issue ultimately may be decided by the courts." In practice, the New York legislature addressed the question by authorizing e-recording programs, which made the federal preemption issue largely moot for current practice.

Background and statutory framework

At the time this opinion was issued, New York's recording regime under Real Property Law Article 9 (centered on § 291) required handwritten signatures on instruments offered for recordation. General Construction Law § 46 defined "signature" broadly enough to potentially include electronic signatures, but State Technology Law § 107(3) expressly excluded RPL Article 9 instruments from the state's electronic-signatures regime in State Technology Law § 104(2).

E-SIGN's preemptive sweep in section 101(a)(1) covered "transactions in or affecting interstate or foreign commerce." Section 106 defined "transaction" to mean actions relating to "business, consumer, or commercial affairs," and the conference report deliberately excluded "governmental transactions" from that definition. Section 104(a) preserved existing federal and state regulatory authority to require records "in accordance with specified standards or formats," and the legislative history made clear that "standards and formats" could include paper-only requirements. Section 101(e) let a state deny effect to an electronic record that could not be retained and accurately reproduced, protecting state agencies still building digital infrastructure.

The opinion stitched these provisions together. Recording is a governmental rather than commercial function, so the core preemption rule did not reach it. Even if it did, sections 104(a) and 101(e) gave New York grounds to maintain paper-signature requirements at the time. The Second Circuit's decision in Ace Auto Body & Towing Ltd. v. City of New York, 171 F.3d 765 (2d Cir. 1999), supported the broader proposition that federal definitions of "State" can be elastic enough to cover local agencies acting under state law, which mattered because county clerks operate at a sub-state level but exercise state-derived recording authority.

Citations and references

Statutes:
- 106 P.L. 229, Electronic Signatures in Global and National Commerce Act (E-SIGN)
- E-SIGN §§ 101, 103, 104, 106, preemption, exceptions, government authority, definitions
- Real Property Law Art. 9, § 291, recording of conveyances
- General Construction Law § 46, definition of signature
- State Technology Law §§ 104(2), 107(3): New York electronic signatures and Article 9 carve-out

Cases:
- Ace Auto Body & Towing Ltd. v. City of New York, 171 F.3d 765 (2d Cir. 1999), federal definitions of "State" can include local agencies acting under state law

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2001-3_pw.pdf

Original opinion text

E-SIGN §§ 101(a)(1), (b)(2), (c)(1) and (e); 103, 104, 106;
GENERAL CONSTRUCTION LAW § 46; REAL PROPERTY LAW, ART. 9, § 291;
STATE TECH. LAW §§ 104(2), 107(3); 106 P.L. 229.
There is a substantial possibility that E-SIGN does not
preempt Article 9 of the RPL or otherwise obligate county
recording officers to accept for recordation a filing that
contains only an electronic signature but lacks what you term an
“original signature.”

June 8, 2001
Stacey Dolgin-Kmetz, Esq.
Acting County Attorney
County of Westchester
Michaelian Office Building
148 Martine Avenue, 6th Floor
White Plains, NY 10601

Informal Opinion
No. 2001-3

Dear Ms. Dolgin-Kmetz:
You have inquired whether recently-enacted federal legislation, the
Electronic Signatures in Global and National Commerce Act (“E-SIGN”), 106
P.L. 229, 114 Stat. 464 (2000), preempts the New York State Recording Act
(the “Recording Act”), see Real Property Law (“RPL”), Art. 9, which
pertains to the recording of instruments affecting real property.
Specifically, you have asked whether E-SIGN obligates a county recording
officer to accept documents submitted for recordation that bear only an
electronic signature, or whether the Recording Act “still requires the
rejection of documents that are submitted for recordation that lack an
original signature but bear an electronic signature.” We understand that
by “original signature,” you mean a signature affixed by hand, as opposed
to an “electronic signature,” which E-SIGN defines as “an electronic
sound, symbol, or process, attached to or logically associated” with a
record “executed or adopted by a person with the intent to sign the
record.” E-SIGN § 106(5).
The question you pose is complex, and there is no clear legal
authority that provides a definitive answer. Nevertheless, it is our
view that E-SIGN probably does not preclude a county recording officer
from rejecting a filing submitted for recordation that bears only an
electronic signature but lacks an “original signature.”
A.

Statutory Framework
1.

The Recording Act

The centerpiece of New York’s Recording Act is RPL § 291, which
reads in relevant part as follows:

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A conveyance of real property, within the state, on
being duly acknowledged by the person executing the
same, or proved as required by this chapter, and
such acknowledgment or proof duly certified when
required by this chapter, may be recorded in the
office of the clerk of the county where such real
property is situated, and such county clerk shall,
upon the request of any party, on tender of the
lawful fees therefor, record the same in his said
office. Every such conveyance not so recorded is
void as against any person who subsequently
purchases or acquires by exchange or contracts to
purchase or acquire by exchange, the same real
property or any portion thereof, . . . in good
faith and for a valuable consideration, from the
same vendor or assignor, his distributees or
devisees, and whose conveyance, contract or
assignment is first duly recorded . . . .
In other words, a person who purchases real property situated in New York
from a vendor for valuable consideration and in good faith, and who
promptly records the transaction with the clerk in the county where the
property is located, has superior rights to that property as against a
person who also purchases the same property from the same vendor but
fails to record the transaction first in time.
In order for the county recording officer to record the transaction
properly in accordance with RPL § 291, the “acknowledgment or proof duly
certified” must include a generally accepted form of signature.
See
General Construction Law (“GCL”) § 46 (defining “signature” as “any
memorandum, mark, or sign, written, printed, stamped, photographed,
engraved or otherwise placed upon any instrument or writing with intent
to execute or authenticate such instrument or writing”).
Article 9 of the RPL does not specify standards and formats for the
documents that the purchaser files with the recording officer, and it
makes no mention of electronic signatures. With its expansive definition
of “signature,” GCL § 46 seemingly paves the way for the use of
electronic signatures. Moreover, several months prior to the passage and
effective date of E-SIGN, New York enacted the Electronic Signature and
Records Act (“ESRA”), which generally provides that “an electronic
signature may be used by a person in lieu of a signature affixed by hand”
and that “an electronic signature shall have the same validity and effect
as the use of a signature affixed by hand.” St. Tech. Law § 104(2).
However, squarely applicable to your inquiry, ESRA specifically
excepts from its scope “any conveyance or other instrument recordable
under article nine of the real property law.” St. Tech. Law § 107(3).
Thus, we agree that State law bars recording officers at the present time
from accepting filings submitted for recordation that contain electronic
signatures.

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2.

Relevant Provisions of E-SIGN

As your letter to us suggests, the question thus arises
whether State law barring the acceptance of electronic signatures
in recordations of real property is preempted by E-SIGN, a federal
law governing the legal validity of electronic signatures.
Relevant provisions of this federal statute are briefly reviewed
below.
E-SIGN § 101(a)(1). Effective October 1, 2000, E-SIGN
establishes a general rule of validity for electronic signatures
and generally preempts state laws that deny legal recognition to
electronic signatures.
E-SIGN § 101(a)(1) provides that
“[n]otwithstanding any statute, regulation, or other rule of law .
. . with respect to any transaction in or affecting interstate or
foreign commerce, a signature, contract, or other record relating
to such transaction may not be denied legal effect, validity, or
enforceability solely because it is in electronic form.” E-SIGN
does not require private parties to conduct transactions
electronically – to the contrary, a consumer must affirmatively
consent to the use of electronic records as part of a transaction
– but if private parties opt to do so, E-SIGN preempts state courts
from refusing to recognize the legal validity of the transaction
solely
because
of
its
electronic
component.
See
E-SIGN
§§ 101(b)(2), 101(c)(1). Notwithstanding this preemptive effect,
the legal effect of an electronic record may be denied, however, if
it is “not in a form that is capable of being retained and
accurately reproduced for later reference.” E-SIGN § 101(e).
The full import and scope of E-SIGN § 101(a) may be gleaned
only from a close reading of the terms defined in E-SIGN § 106.
E-SIGN § 106(13) provides that “transaction” means “an action or
set of actions relating to the conduct of business, consumer, or
commercial affairs between two or more persons,” including “(A) the
sale, lease, exchange, licensing, or other disposition of (i)
personal property, including goods and intangibles, (ii) services,
and (iii) any combination thereof; and (B) the sale, lease,
exchange or other disposition of any interest in real property.”
Moreover, to cover situations when a unit of government acts as a
market participant, ESIGN § 106(8) defines “person” as, inter alia,
a “governmental agency.”
Finally, E-SIGN § 106(1) defines
“consumer” as “an individual who obtains, through a transaction,
products or services which are used primarily for personal, family,
or household purposes.”
Thus, it appears that the activities covered by E-SIGN §
101(a) relate to the transfer of an interest in real property from
one person (which may include a governmental agency, when it acts

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in a proprietary and nongovernmental capacity) to another. The
provision does not, however, cover the related but distinct
activity of recordation of a private transaction, which is purely
governmental in nature.
The statute’s legislative history confirms this reading of ESIGN § 101(a).
The Congressional record demonstrates that the
federal
legislature
carefully
crafted
the
definition
of
“transaction” to exclude uniquely “governmental” functions from its
scope. Congressman John Dingell of Michigan explained the kinds of
transactions covered by E-SIGN:
You will note that the definition of
“transaction” includes business, commercial,
or
consumer
affairs.
The
Conferees
specifically rejected including “governmental”
transactions. Members should understand that
this bill will not in any way affect most
governmental
transactions,
such
as
law
enforcement actions, court actions, issuance
of Government grants, applications for or
disbursement of Government benefits, or other
activities that the Government conducts that
private actors would not conduct. Even though
some aspects of such governmental transactions
(for example, the Government’s issuance of a
check reflecting a Government benefit) are
commercial in nature, they are not covered by
this bill because they are part of a uniquely
governmental operation.
H.R. Conf. Rep. No. 00-106, at H4357 (June 14, 2000) (emphasis
added).
In fact, in signing E-SIGN into law, President Bill Clinton
stated that he did so “with the understanding” reflected by
Congressman Dingell’s statement that “this legislation principally
addresses consumer and commercial activities, not governmental
activities.” Attachment to Memorandum dated September 25, 2000 of
the Office of Management and Budget (“OMB”), Guidance On
Implementing the Electronic Signatures in Global and National
Commerce Act (E-SIGN), at Appendix A (“OMB Mem.”) (found at
www.whitehouse.gov/omb); see also id. at 3 (“Congress specifically
rejected the inclusion of the term ‘governmental transaction’ in
the definition of transactions to E-SIGN, although that term did
appear in earlier versions of the bill. . . . E-SIGN does not
prescribe requirements pertaining to activities that are
governmental (as opposed to business, consumer, or commercial) in

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nature . . . .”); Jim Whitter (“Whitter”), What Governors Need to
Know About E-SIGN: The Federal Law Authorizing Electronic
Signatures and Records (Sept. 22, 2000), at 4 (found at
www.nga.org) (“Governmental affairs are not included in the E-SIGN
definition of ‘transaction.’”).
E-SIGN § 103. E-SIGN § 103 sets forth various exceptions from
the general rule of preemption established by E-SIGN § 101. It
provides that E-SIGN § 101 does not apply to, inter alia, statutes,
regulations or other rules of law governing the creation and
execution of wills, codicils, or testamentary trusts (E-SIGN §
103(a)(1)); statutes, regulations or other rules of law governing
adoption, divorce or other matters of family law (E-SIGN §
103(a)(2)); or court orders, court notices, or official court
documents “required to be executed in connection with court
proceedings” (E-SIGN § 103(b)(1)). E-SIGN’s legislative history
reveals that the Senate version of E-SIGN at one time included a
specific exception for “documents of title which are filed of
record with a governmental unit until such time that a State or
subdivision thereof chooses to accept filings electronically,” but
that exception later was dropped by the Conference Committee
responsible for harmonizing the different versions of the bill
passed by the Senate and the House. H.R. Conf. Rep. No. 00-106, at
H4354 (June 14, 2000); S. Conf. Rep. No. 00-106, at S5285 (June 16,
2000).
E-SIGN § 104(a).
E-SIGN § 104 clarifies E-SIGN’s
applicability with respect to “federal and state governments.”
E-SIGN § 104(a) provides that nothing in E-SIGN § 101(a) “limits or
supercedes any requirement by a Federal regulatory agency, selfregulatory organization, or State regulatory agency that records be
filed with such agency or organization in accordance with specified
standards or formats.” Although E-SIGN § 104(a) makes no express
mention of paper filings, and while other subsections of E-SIGN §
104 generally forbid state agencies from enacting any new
regulations related to filings that “impose or reimpose any
requirement that a record be in a tangible printed or paper form,”
E-SIGN § 104(c)(1), the legislative history of E-SIGN § 104(a)
makes clear that “standards and formats” exempt from E-SIGN’s
general rule according legal validity to electronic signatures and
records may include requirements for “paper filings or records.”
H.R. Conf. Rep. No. 00-106, at H4354; S. Conf. Rep. 00-106, at
S5286; see also Whitter at 4 (“The federal act recognizes that
states need to control how and when information is submitted to
their agencies.”).
E-SIGN § 104(a) grandfathers existing state regulations that
make no provision for the filing of documents containing electronic

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signatures, but nowhere does the statute define the term “State
regulatory agency.”
Cf. E-SIGN § 106(6) (defining “Federal
regulatory agency”); id. § 106(11) (defining “self-regulatory
organization”); id. § 106(12) (defining “State”). It therefore is
unclear whether the term “State regulatory agency” encompasses the
duties of county recording officers, who work at a local level of
government and do not technically perform “regulatory” functions of
the State in discharging their duties pursuant to Article 9 of the
RPL.
B.

Analysis

It is our view, shared by commentators and the federal Office
of Management and Budget alike, that E-SIGN probably does not
preempt state recording acts like Article 9 of the Real Property
Law.
We believe that county recording officers in New York
therefore are not obligated by E-SIGN to accept any filing for
recordation that contains only an electronic signature.
Although the text and scope of E-SIGN § 101(a)(1) is not
entirely clear on its face in some respects, the comments by
Congress Dingell in E-SIGN’s legislative history, combined with a
close reading of the relevant terms defined in E-SIGN § 106 and
discussed above, indicate that the recordation contemplated by
Article 9 of the RPL is precisely the type of “uniquely
governmental” transaction unaffected by the preemptive sweep of ESIGN § 101(a)(1). See H.R. Conf. Rep. No. 00-106, at H4357; see
also OMB Mem. at 5 (“[t]he statutes and regulations affected by ESIGN . . . relate to business, consumer, or commercial, rather than
governmental, activities”); id. at 14 (“distinctively governmental
activities are not within the scope of E-SIGN”); Craig C. Page
(“Page”), Electronic Transactions, Digital Signatures, & Electronic
Recordation, at 7 (located at www.ctla.org/e-commerce/electronic
transactions) (“The general consensus is that . . . the legislation
was not intended to apply to county recorders . . . .”) (emphasis
in original).
E-SIGN paves the way for private parties engaged in a
transaction for the sale of real property situated in New York to
conduct (by express mutual agreement) their transaction through the
use of electronic records, but private parties simply cannot opt to
perform recording functions themselves. See H.R. Conf. Rep. No.
00-106, at H4357. Under New York law, that task falls squarely on
the shoulders of recording officers. See RPL § 291. Given this
circumstance, we believe that E-SIGN § 101(a)(1) is without force
in the context about which you inquire, and applicable State law
prohibits recording officers from accepting a filing that contains
an electronic signature. See St. Tech. Law § 107(3).

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If the text of E-SIGN § 101(a)(1) were as clear as its
legislative history in this regard, our response to your inquiry
would be at an end. But because E-SIGN § 101(a)(1) does not, at
least at first blush, explicitly reflect Congressman Dingell’s
comments about the definition of “transaction,” we also think it is
useful to consider other provisions of E-SIGN that may shed light
on whether E-SIGN preempts Article 9 of the RPL.
As described above, E-SIGN § 104(a) expressly permits a state
regulatory agency to continue to require that records be filed with
an agency “in accordance with specified standards or formats.”
Moreover, the legislative record relating to E-SIGN § 104(a) makes
clear that “specified standards or formats” may entail “paper
filings or records.”
H.R. Conf. Rep. No. 00-106, at H4354; S.
Conf. Rep. 00-106, at S5286; see also OMB Mem. at 3 (E-SIGN
“preserves an agency’s existing authority to specify standards and
formats for records filed with the agency”). Thus, E-SIGN § 104(a)
allows a state agency to reject electronic records submitted for
filing if existing regulations do not provide for filings in that
format.
See Whitter at 3 (“E-SIGN does not compel a state to
accept electronic signatures . . . [in] filings it accepts from the
general public or regulated entities.”).
Yet, E-SIGN § 104(a)’s particular exception to the statute’s
general rule of preemption applies by its terms only to “federal
and state governments,” and not local units of government, which is
the level at which New York law provides for recordation to take
place. See RPL § 291. Nonetheless, the fact that county recording
officers in New York conduct themselves pursuant to State and not
local law supports our conclusion that E-SIGN does not preempt
Article 9 of the RPL. See Ace Auto Body & Towing Ltd. v. City of
New York, 171 F.3d 765, 775 (2d Cir.), cert. denied, 528 U.S. 868
(1999) (no preemption where state delegated its regulatory
authority to a municipality). Furthermore, even though E-SIGN defines
“State” to include “the District of Columbia and the territories
and possessions of the United States,” E-SIGN § 106(12), and makes
no mention of county or other local governments, we think that the
statute’s broad definition of “State” is elastic enough to
encompass local units of government.
See Page at 7 (“county
recorders . . could be found to fall within the definition of
‘state agency’”); see also Ace Auto, 171 F.3d at 775 (finding no
preemption of municipality’s authority where federal statute
defined “State” to include only the fifty states and the District
of Columbia).

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E-SIGN § 104(a) also only relates to State “regulatory”
authority, whereas the duties of recording officers stem from a New
York statute, not a regulation. However, as at least one prominent
commentator has suggested, E-SIGN § 104(a) addresses recording acts
that are derived from state statutory law:
Both State and federal law impose a number of
requirements on individuals, companies, and
organizations to file various documents which
then become part of a publicly accessible
database.
Examples of such filings may be
found under the real property recording acts,
personal property security filings, [and]
entity filings. . . . E-Sign § 104(a)
preserves any requirement that records be
filed with the agency or organization in
specified
standards
or
formats.
This
provision should protect recording systems and
other filing systems from any obligation to
immediately convert to electronic records.
Patricia Brumfield Fry, A Preliminary Analysis of Federal and State
Electronic Commerce Laws, at 11 (located at www.nccusl.org).
Furthermore, E-SIGN § 101(e) provides that the legal effect of
an electronic signature may be denied if it is “not in a form that
is capable of being retained and accurately reproduced for later
reference.”
E-SIGN § 104(a)’s reluctance to force states to
immediately adopt new standards and formats that accommodate
electronic filings is tied in part to concerns about record
retention and accuracy. If the integrity and authenticity of a
paperless record cannot be assured over time because a state
cannot, for example, properly store and retrieve filings that
contain electronic signatures, then E-SIGN § 101(e) provides that
the state may refuse to accept such filings.
Finally, practical considerations are furthered by our
conclusion that E-SIGN does not preempt Article 9 of the RPL. To
be sure, if E-SIGN does not preempt Article 9 of the RPL, the
further question is presented of when exactly county recording
officers in New York will be required to make the transition toward
the acceptance of electronic filings absent amendments to pertinent
federal or state law. But an even more compelling, countervailing
concern is the likelihood that if E-SIGN obligates county recording
officers to presently accept filings for recordation that contain
electronic signatures, the recording system for real property
transactions will suffer grave inefficiencies until such time as
recording officers are fully prepared to handle such filings. In

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the interim, persons affected by an area of the law in which the
need for certainty is paramount may be compromised irreparably.
In sum, although the issue ultimately may be decided by the
courts, it is our estimation, for the foregoing reasons, that there
is a substantial possibility that E-SIGN does not preempt Article
9 of the RPL or otherwise obligate county recording officers to
accept for recordation a filing that contains only an electronic
signature but lacks what you term an “original signature.”
The Attorney General renders formal opinions only to officers
and departments of State Government. This perforce is an informal
and unofficial expression of the views of this office.
Very truly yours,
JAMES D. COLE
Assistant Solicitor General
In Charge of Opinions

By:_______
ROBERT EASTON
Assistant Solicitor General