CHIEF JUSTICE HECHT delivered the opinion of the Court, in which JUSTICE GUZMAN, JUSTICE LEHRMANN, JUSTICE DEVINE, JUSTICE BLACKLOCK, JUSTICE BUSBY, JUSTICE BLAND, and JUSTICE HUDDLE joined. JUSTICE BOYD filed a dissenting opinion. Contracts are increasingly signed electronically, with an online click for every kind of transaction imaginable—from simple, everyday retail purchases to complex matters of great consequence. The utility of digital contracts depends heavily, of course, on their enforceability as a matter of law. The Texas Uniform Electronic Transactions Act (the Act)[1] states that “[a]n electronic record or electronic signature is attributable to a person [by] showing . . . the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.”[2] The issues before us are how the efficacy of a security procedure is shown and, once it is, whether the alleged signatory’s simple denial that he signed the record is sufficient to prevent attribution of an electronic signature to him. We hold here that attribution was conclusively established and therefore reverse the judgment of the divided court of appeals.[3] I A Aerotek hires employees globally by the hundreds of thousands to work as contractors for client companies. To keep hiring efficient, Aerotek worked with a software developer to build an online-only hiring application. Aerotek exclusively uses this computerized hiring application to guide employee candidates through the hiring process—a process sometimes referred to as “onboarding”. Aerotek’s hiring application automatically sends a welcome email to the email address the candidate has provided during the recruitment and initial interview process. The welcome email includes a unique hyperlink for the candidate to use to navigate to the hiring application’s online account-registration page. Once there, the candidate creates a unique user ID and password and selects security questions. To later log in to the hiring application, the candidate must enter this user ID, password, and security-question combination correctly. This login process takes place each time the candidate leaves and returns to the hiring application. The computerized hiring application presents the candidate with employment information and various contracts to sign electronically. The first document requiring an electronic signature is an Electronic Disclosure Agreement (EDA). By signing the EDA, the candidate consents to “be bound” by Aerotek’s electronic hiring documents “as though . . . signed . . . in writing.” After the candidate signs the EDA, the application presents other documents to the candidate for completion and signature. These documents ask for personal information, such as addresses and emergency contacts. The application requires candidates to complete and electronically sign the documents in a particular order. After the candidate completes the initial documents, the application unlocks four additional documents, including a Mutual Arbitration Agreement (MAA). The candidate may electronically sign these documents in any order, but he must complete all four before the computerized application will allow him to continue and complete the hiring process. As the candidate enters information and signatures on the documents, the hiring application tracks his progress. For nearly every action the candidate takes, the hiring application stores an electronic record in a database. For instance, each time a candidate electronically signs a document the hiring application stores a new electronic record that includes the candidate’s unique identifier, the type of document, and a timestamp showing the date and time the document was signed. Once the application records that information, Aerotek cannot change it. A candidate who claims to lack the ability to use the computerized hiring application is invited to Aerotek’s office for assistance. But the candidate must still go through the hiring application step by step, providing the same information and signatures that would be required if he were not assisted. B Trojuan Cornett, Michael Marshall, and Lerone Boyd each completed Aerotek’s computerized hiring application on his own. Jimmy Allen completed his in Aerotek’s office with assistance from Sybil Harper, an administrative assistant. Their completed applications all include an MAA, timestamped with their signature just a few minutes after they signed the EDA.[4] Aerotek hired all four (the Employees) to work as contractors on a construction project for Aerotek’s client, J.R. Butler, Inc. All four were terminated not long after starting work and sued Aerotek, Butler, and others for racial discrimination and retaliation.[5] Aerotek moved to compel arbitration. It attached to its motion each Employee’s timestamped EDA and MAA, along with database records showing the timestamp for every other action taken by each Employee in completing the hiring application. The Employees opposed the motion. Represented by the same lawyer, each submitted a sworn declaration acknowledging that he had completed the online hiring application but denying that he had ever seen, signed, or been presented with the MAA. In substance, the four declarations are word-for-word identical; Allen’s differs only in its acknowledgment that he was assisted by Harper.[6] The trial court conducted an evidentiary hearing on Aerotek’s motion to compel. Phaedra Marsh, a program manager who had worked for Aerotek for nearly 20 years, testified that while Aerotek personnel did not write the computer code themselves, she helped design and develop the application by defining how it would operate—specifications sometimes referred to as “business rules”.[7] The software developer then reduced those business rules to computer-readable code. Marsh testified that although she was neither part of Aerotek’s IT department nor an IT expert, she did all the hiring application’s testing, managed its updates and enhancements, and directed the training that Aerotek provided internally. Marsh also performed an in-court demonstration on a laptop and external monitor to show how each step in the hiring-application process worked. Asked whether there was any possible way the Employees could have completed their applications without executing the MAA, Marsh answered: “Not with this process. It’s locked throughout . . . , so they have to complete everything in that section before they can get to the finalize-and-submit section. So everything has to be signed and completed before they get there.” Further, she added, “[w]e don’t have the ability to alter [forms] after they’re submitted” by a candidate. Marsh testified that the hiring-application process had not changed since the Employees used it. The only glitch she described in the use of the hiring application was when one of the four servers housing the data for the system went down, with the result that a candidate could not immediately respond to the welcome email’s invitation to use the application. Aerotek’s only other witness was the administrative assistant that assisted Allen, Sybil Harper. She testified that while she assisted Allen in completing his application as shown by the computer record, she did not recall the event specifically. Harper testified that she uses a “very strict” and “very structured” process for assisting candidates with the hiring application. Over “a hundred times” she has sat “next to” candidates in “a designated computer lab” to personally assist them with completing the hiring application. She starts out by helping the candidate to retrieve Aerotek’s welcome email from the candidate’s personal email. Then she assists candidates, as needed, with using the welcome email to navigate to the hiring application and create their user name and password. From there, Harper assists the candidate with “start[ing] the on-boarding process.” Harper ensures that “[e]verything is entered” and “signed electronically”, including the “electronic disclosure”, “biographical information”, and other documents, such as the “arbitration agreement”. Harper also testified that at “each step as [they] go through with the process” she gets renewed “consent” to continue. She also stated that she cannot “bypass” the hiring application’s business rules and has never “electronically attached someone’s signature to any document”— including an arbitration agreement—without the person’s consent. “[E]verything has to be done in order,” Harper explained, and “[b]y the end of it” she assists the candidate with finishing the application through “the finalize and submit process.” The Employees offered only their declarations as evidence, the parties having agreed that the court could consider the declarations as sworn testimony in open court. The trial court denied Aerotek’s motion to compel arbitration. A divided panel of the court of appeals affirmed. The majority rejected Aerotek’s argument that it had conclusively established the MAAs’ validity. The majority concluded that Marsh had “insufficient capacity to establish the system was failsafe” since she was “not an IT expert”.[8] Her in-court demonstration of the hiring application, the majority said, showed merely “what happened in the system that day in court”, not necessarily what the Employees had actually experienced.[9] The majority reasoned that “Marsh never vouched for the [database] records’ integrity, nor could she adequately explain the security measures Aerotek took.”[10] The majority noted that Aerotek “did not bring a witness from” the software developer that created the hiring application “to provide technical explanation and vouch for the system security.”[11] In any event, the majority concluded, Marsh was an interested witness whose testimony the trial court was free to discount, especially if there were demeanor and credibility issues not apparent on the face of the record.[12] The Act did not influence its analysis, the majority reasoned, because it does not provide a “framework of appellate review”.[13] The majority also concluded that Harper’s “total lack of specific memory as to her dealings with” Allen failed to conclusively establish that he had signed the MAA.[14] The dissent took issue with the majority’s analysis, arguing that it set “a standard that would make electronic contract formation practically impossible and write section 322.009 out of the law.”[15] The court denied Aerotek’s motion for rehearing en banc over a dissent joined by four Justices.[16] We granted Aerotek’s petition for review. II To compel arbitration, a party must prove that a valid arbitration agreement exists.[17] For the MAAs to be valid, the Employees must have consented to them.[18] The Employees argue only that they did not consent to the MAAs because the electronic signatures on the agreements are not theirs. They admit that they completed Aerotek’s online hiring application but deny that they were presented with the MAAs during that process. The trial court believed them. We must defer to the trial court’s factual finding that the Employees did not sign the MAAs if that finding is “supported by evidence”.[19] Aerotek contends that it conclusively established that the Employees signed the MAAs by proving that the security procedures for its hiring application would have made it impossible for the Employees to complete their applications without signing the MAAs during that process. “Evidence is conclusive only if reasonable people could not differ in their conclusions, a matter that depends on the facts of each case.”[20] For a paper document with a handwritten, wet-ink signature, the genuineness of the signature can be proved by direct evidence—for example, testimony by an eyewitness, a witness familiar with the signatory’s handwriting, or an expert who has compared the signature against a genuine specimen.[21] But these authentication methods may not be applicable to a purely electronic signature.[22] While handwritten signatures are unique to an individual, electronic signatures sometimes involve nothing more than clicking a box online and recording the information in an electronic database.[23] Once parties to a transaction have “agreed to conduct [it] by electronic means”,[24] the Act provides a standard for attributing electronic signatures to them. Section 322.009(a) provides that an “electronic signature is attributable to a person if it was the act of the person.”[25] That “may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.”[26] Section 322.002(13) defines a security procedure as any “procedure employed for the purpose of verifying that an electronic signature, record, or performance is that of a specific person or for detecting changes or errors in the information in an electronic record”, including “the use of algorithms or other codes, identifying words or numbers, encryption, or callback or other acknowledgment procedures.”[27] Thus, security procedures may include requiring personal identifying information—such as a social security number or an address—to register for an account;[28] assigning a unique identifier to a user and then tying that identifier to the user’s actions;[29] maintaining a single, secure system for tracking user activities that prevents unauthorized access to electronic records;[30] business rules that require users to complete all steps in a program before moving on or completing it;[31] and timestamps showing when users completed certain actions.[32] These examples are illustrative and not exclusive under Section 322.009(a). The efficacy of the security procedure provides the link between the electronic record stored on a computer or in a database and the person to whom the record is attributed. A record that cannot be created or changed without unique, secret credentials can be attributed to the one person who holds those credentials. The Employees do not disagree. They concede that they completed Aerotek’s computerized hiring application and electronically signed the documents included—save for one, the MAA. Aside from their denials, they offered no evidence to support their allegation that they did not electronically sign the MAAs that Aerotek introduced into evidence. Instead, they simply argue that Aerotek’s evidence fell short of establishing the efficacy of the hiring application’s security procedures. According to the Employees, the trial court was free to disregard Aerotek’s witnesses. Aerotek’s evidence showing the security procedures its hiring application used to verify that a candidate electronically signed his MAA was uncontroverted. To enter the application, a candidate was required to create for himself a unique identifier, a user ID, a password, and security questions, all unknown to Aerotek. The candidate was required to enter personal information and sign documents by clicking on them. The application recorded and timestamped the candidate’s every action. The application’s business rules made it so that the application could not be submitted until all steps were completed and all required signatures provided, including on the MAA. Once a candidate submitted his application, Aerotek could not modify its contents. Aerotek provided the signed MAAs marked with timestamps identical to those in its database records showing each Employee’s progress through the application. The Employees argue that Marsh did not testify that it was impossible to complete the hiring application without signing the MAA, but that was exactly her testimony. Asked whether there was “any possible way” she could “imagine” that happening, she answered, “[n]ot with this process.” Marsh explained that every part of the application had to be “signed and completed” before the application could be “finalize[d] and submit[ted]“—statements backed up by her in- court demonstration of the very hiring application that the Employees used. The Employees argue that their signatures could have been added after their applications were completed. Again, Marsh testified to the contrary: “[w]e don’t have the ability to alter [forms] after they’re submitted” by a candidate. The Employees argue that Marsh’s in-court demonstration of the application showed only how it had worked that day, not how it worked when they used it. But Marsh specifically testified that the hiring application process had not changed since the Employees used it. The Employees argue that the application they used may have had a glitch. But Marsh testified that the only time a glitch occurred was when a server went offline and a candidate could not immediately respond to his invitation to use the system. The Employees argue that no evidence supports a finding that they signed the MAAs because Marsh did not “observe” them doing so. But Marsh did not need to observe them because the hiring application did, invisibly storing in a database an electronic record of each action the Employees took. The Employees argue that testimony from a computer programmer, or at least an IT expert, was required to prove the application’s operation and security procedures. But Marsh testified that she had helped develop the application and managed its use in hundreds of thousands of instances. She was sufficiently familiar with the hiring application to give testimony on its actual operation. The Employees argue that Marsh was an interested witness whose testimony the trial court was free to discount. “Testimony by an interested witness may establish a fact as a matter of law only if the testimony could be readily contradicted if untrue, and is clear, direct and positive, and there are no circumstances tending to discredit or impeach it.”[33] Marsh’s testimony was certainly “clear, direct, and positive”. The Employees argue that their four affidavits averring that they never saw nor signed the MAA have a collective weight that discredits Aerotek’s evidence. But Marsh explicitly testified that the hiring application’s business rules would have prevented them from completing the hiring process without their signing the MAAs. Moreover, the Employees could have requested forensic tests of the hiring application to show that it did not operate as Marsh described, but they did not. In addition, Allen argues that Sybil Harper, the Aerotek employee who assisted him with his hiring application, must have signed his MAA without his consent. But Harper testified that she routinely uses a “very strict” and “very structured” process for assisting candidates with the hiring application, having helped candidates over “a hundred times” as she sat “next to” them. From retrieving Aerotek’s welcome email, to “creat[ing] a user name and password”, to inputting “biographical information”, to signing the “arbitration agreement”, Harper testified that she makes sure that “[e]verything is entered” and “signed electronically”. And at “each step as [they] go through the process” Harper gets renewed “consent” to continue. Allen does not argue that Harper acted any differently in assisting him. For the same reason, his argument that Harper’s testimony lacks probative value since she does not specifically remember assisting him falls short. More importantly, he asserts with the other three Employees that he intended to complete the hiring application, which could not have been done without his signing the MAA. The Employees also contend that Aerotek’s evidence cannot be conclusive for other reasons. The Employees argue that their “printed name[s]” on the MAAs cannot qualify as “ a signature of any kind—not an actual signature or even an electronic signature.” But both our caselaw, for wet-ink signatures,[34] and Section 322.002(8), for electronic signatures,[35] plainly provide otherwise. The Employees argue that Aerotek cannot conclusively prove they electronically signed the MAAs because “people onboarding with Aerotek can, from anywhere, create their ID and password, and can also login from anywhere.” In addition to proving too much,[36] that argument does not account for Aerotek’s evidence, which conclusively established that the only way a person could access each Employee’s information was through a secret combination of unique user ID, password, and security questions known only to the Employee. The Employees complain that Aerotek’s prevailing here would establish “an irrebuttable presumption” that electronic signatures on corporate records are valid. That is simply untrue. The Employees were free to seek discovery to discredit Aerotek’s evidence. They chose not to. Rather than attacking the reliability of the hiring application’s security procedures with evidence of their own, they chose to rely on mere argument. Because arguments are not evidence,[37] no evidence supports the Employees’ contentions. Finally, we cannot agree with the dissent’s suggestion that merely denying an electronic signature qualifies as some evidence in showing an electronically signed arbitration agreement’s invalidity. The dissent makes much of the Commission of Appeals’ decision in Ward v. Weaver,[38] a 90-year-old case in which we approved the Commission’s recommendation that judgment on a verdict failing to find that Mrs. Weaver signed a deed be affirmed.[39] Whatever Ward‘s continued validity is today, it does not control here. For starters, the case is not binding on this Court. As we have explained many times, “our approval of the judgment recommended by the Commission . . . is not to be construed as an approval by the Supreme Court of the opinion of the Commission in the particular case, or the reasons given in the Commission’s opinion for its conclusion.”[40] And even if the case were binding, it dealt with circumstances materially different from those now before us. By allegedly signing a deed in ink, Mrs. Weaver did not opt into a statutory framework such as the one that the Act provides for electronic signatures, as Aerotek and the Employees did. Under Section 322.009′s framework for electronic-signature attribution, once Aerotek proved its security procedures, the burden shifted to the Employees to demonstrate how their electronic signatures could have wound up on the MAAs without their having placed them there themselves. Mere denials do not suffice. As the dissent agrees, evidence cannot be disregarded when it “demonstrates ‘physical facts that cannot be denied,’ so that ‘reasonable people could not differ in their conclusions.’”[41] Aerotek’s evidence did exactly that. In sum, Aerotek’s evidence of the security procedures for its hiring application and its operation is such that reasonable people could not differ in concluding that the Employees could not have completed their hiring applications without signing the MAAs. The Employees’ simple denials are no evidence otherwise. III We agree with the dissenting Justices in the court of appeals that the significance of this case extends far beyond the parties’ dispute.[42] As Texans continue to move online, the pace of innovation and change in everyday life continues to accelerate. When it comes to social interaction, some commentators suggest that as many as 72% of all Americans use social media to interact online.[43] Although “applying old doctrines” to these interactions “is rarely straightforward”,[44] it would be even less so if the electronic contracts governing them—terms of use or service, in many cases—were unnecessarily invalidated. When it comes to access to justice, the courts today are likewise heavily dependent on electronic signatures. For instance, our power to hear this case turns on the validity of the electronic, typed signatures that counsel submitted in their briefs.[45] And the same is true for commerce. The United States Census Bureau estimates that as many as 14% of all retail sales in 2020 happened online—up 32.4% from 2019—and all of them involved a contractual exchange of some sort.[46] Our policymaking branch of government, the Legislature, has expressly declared it to be the policy of this State to facilitate those transactions.[47] Courts cannot unnecessarily stand in the way of the Legislature’s attempts to keep pace with that innovation. Moreover, the Legislature is not the only policymaking body trying to keep pace: so, too, is Congress. In 2000, Congress enacted the Electronic Signatures in Global and National Commerce Act (the ESIGN Act).[48] Section 7001 expressly provides that “with respect to any transaction in or affecting interstate or foreign commerce . . . a contract relating to such transaction may not be denied legal effect, validity, or enforceability because an electronic signature or electronic record was used in its formation.”[49] States may “modify, limit, or supersede” Section 7001 “only if” their changes are either consistent with the Uniform Electronic Transactions Act or the ESIGN Act itself.[50] Because online interactions increasingly affect “interstate” and “foreign commerce”, courts must be wary of construing the Act in a way that raises preemption’s specter. It may be that the use of electronic contracts already exceeds the use of paper contracts or that it will soon. The Act does not limit the ways in which electronic contracts may be proved valid, but it specifically states that proof of the efficacy of the security procedures used in generating a contract can prove that an electronic signature is attributable to an alleged signatory.[51] An opposing party may, of course, offer evidence that security procedures lack integrity or effectiveness and therefore cannot reliably be used to connect a computer record to a particular person. But that attribution cannot be cast into doubt merely by denying the result that reliable procedures generate. * * * * * Aerotek conclusively established that the Employees signed, and therefore consented to, the MAAs, and the trial court erred in denying Aerotek’s motion to compel arbitration. The judgment of the court of appeals is reversed, and the case is remanded to the trial court for further proceedings. Nathan L. Hecht Chief Justice OPINION DELIVERED: May 28, 2021
