CONNECTICUT UNIFORM ELECTRONIC TRANSACTIONS ACT
DRAFT 5 - July 18, 2000
(Deleted language requested by the drafting committee is shown by brackets and strikethroughs. Added language requested by the committee is shown in all caps.
Proposed language to be considered by the committee is shown in italics.)
SECTION 1. SHORT TITLE. This act may be cited as the Connecticut Uniform Electronic Transactions Act.
SECTION 2. DEFINITIONS. In this act:
(1) "Agreement" means the bargain of the parties in fact, as found in their language or inferred from other circumstances and from rules, regulations, and procedures given the effect of agreements under laws otherwise applicable to a particular transaction.
(2) "Automated transaction" means a transaction conducted or performed, in whole or in part, by electronic means or electronic records, in which the acts or records of one or both parties are not reviewed by an individual in the ordinary course in forming a contract, performing under an existing contract, or fulfilling an obligation required by the transaction.
(3) "Computer program" means a set of statements or instructions to be used directly or indirectly in an information processing system in order to bring about a certain result.
(4) "Contract" means the total legal obligation resulting from the parties' agreement as affected by this act and other applicable law.
*["Document security and authentication procedure" means a procedure or methodology established by law, established by agreement of each person who is a party to an electronic record or knowingly adopted by each person who is a party to an electronic record that is used for the purpose of preventing or detecting changes or errors in the informational integrity of the electronic record. The term includes, without limitation, a procedure that requires the use of algorithms or other code, identifying words or numbers, encryption, callback or other acknowledgement procedure, or any other procedures that are reasonable under the circumstances.] WILL REVISIT AT A LATER TIME.
*(5) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. The term includes, among other technologies, facsimile, electronic and ? mail, telex, telecopying and digital scanning.
(6) "Electronic agent" means a computer program or an electronic or other automated means used independently to initiate an action or respond to electronic records or performances in whole or in part, without review or action by an individual.
(7) "Electronic record" means a record created, generated, sent, communicated, received, or stored by electronic means.
*(8) "Electronic signature" means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the [intent to sign] same intent as if the person had affixed the persons handwritten signature to the record. WILL REVISIT AT A LATER TIME.
(9) "Information" means data, text, images, sounds, codes, computer programs, software, databases, or the like.
(10) "Information processing system" means an electronic system for creating, generating, sending, receiving, storing, displaying, or processing information.
(11) "Person" has the meaning given in section 1-1k of the general statutes.
(12) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
* (13) "Security procedure" means a 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. The term includes a procedure that requires the use of algorithms or other codes, identifying words or numbers, encryption, or callback or other acknowledgment procedures. * WILL REVISIT AT A LATER TIME.
*["Signature authentication procedure" means a procedure or methodology established by law, established by agreement of each person who signs an electronic record or knowingly adopted by each person who signs an electronic record that independently verifies (i) the identity of the persons whose electronic signatures are attached to the electronic record and (ii) the time at which either the electronic signatures were attached to the electronic record, or the time at which the electronically signed record was transmitted. The term may include, without limitation, use of third party signature non-repudiation services, including public key certification authorities, provided by any entity that has been authorized to perform such services by the appropriate regulatory authority of any jurisdiction that is not subject to any embargo, export or trade restriction of the United States government.] WILL REVISIT AT A LATER TIME.
(14) "State" means a State of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band, or Alaskan native village, which is recognized by federal law or formally acknowledged by a State.
(15) "Transaction" means an action or set of actions occurring between two or more persons relating to the conduct of business, commercial, charitable or governmental affairs.
For the most part, the drafting committee adopted for this act the definitions proposed by the National Conference of Commissioners on Uniform State Laws (NCCUSL) in the Uniform Electronic Transactions Act (UETA). Deviations are as follows:
(5) The drafting committee added several examples of the kinds of "electronic" technology the act is intended to cover. These examples are not intended to be limiting. To the contrary, they are meant to support a more liberal view of the technologies contemplated by the act and to assure parties that the most commonly used forms of technology fall within the scope of the act. As noted in the commentary to the UETA: "While not all technologies listed are technically "electronic" in nature (e.g., optical fiber technology), the term "electronic" is the most descriptive term available to describe the majority of current technologies.... [W]hether a particular technology may be characterized as technically "electronic"... should not be determinative of whether records and signatures created, used and stored by means of a particular technology are covered by this Act."
(8) WILL REVISIT AT A LATER TIME
(11) The definition of "person" for purposes of this act is the same as that found in section 1-1k of the Connecticut General Statutes (CGS).
(13) WILL REVISIT AT A LATER TIME
(15) The drafting committee added "charitable" to the list of transactions governed by the act. E.g., the preparation and administration of charitable trusts, including investing trust funds, may be done electronically, and should be covered by the same principles as the other kinds of transactions included in the definition.
SECTION 3. SCOPE.
(a) Except as otherwise provided in subsection (b), this act applies to electronic records and electronic signatures relating to a transaction.
(b) This act does not apply to a transaction to the extent it is governed by:
(1) A law governing the creation and execution of wills, codicils, or testamentary trusts;
(2) the Uniform Commercial Code other than Sections 1-107 and 1-206, Article 2, and Article 2A;
(3) SECTIONS 47-10, 47-12, 47-12a, 47-14g, 47-14j, 47-14k, 47-15, 47-16, 47-17, 47-18a, AND 47-19 OF THE GENERAL STATUTES; [WHICH OF THESE RECORDING STATUTES SHOULD STAY IN/COME OUT? ANY OTHERS?]
(4) COURT ORDERS OR NOTICES, OR OFFICIAL COURT DOCUMENTS (INCLUDING BRIEFS, PLEADINGS, AND OTHER WRITINGS) REQUIRED TO BE EXECUTED IN CONNECTION WITH COURT PROCEEDINGS;
(5) ANY NOTICE OF:
(A) THE CANCELLATION OR TERMINATION OF UTILITY SERVICES (INCLUDING WATER, HEAT, AND POWER);
(B) DEFAULT, ACCELERATION, REPOSSESSION, FORECLOSURE, OR EVICTION, OR THE RIGHT TO CURE, UNDER A CREDIT AGREEMENT SECURED BY, OR A RENTAL AGREEMENT FOR, A PRIMARY RESIDENCE OF AN INDIVIDUAL;
(C) THE CANCELLATION OR TERMINATION OF HEALTH INSURANCE OR BENEFITS OR LIFE INSURANCE BENEFITS (EXCLUDING ANNUITIES); OR
(D) RECALL OF A PRODUCT, OR MATERIAL FAILURE OF A PRODUCT, THAT RISKS ENDANGERING HEALTH OR SAFETY; OR
(6) ANY DOCUMENT REQUIRED TO ACCOMPANY ANY TRANSPORTATION OR HANDLING OF HAZARDOUS MATERIALS, PESTICIDES, OR OTHER TOXIC OR DANGEROUS MATERIALS.
(c) This act applies to an electronic record or electronic signature otherwise excluded from the application of this act under subsection (b) to the extent it is governed by a law other than those specified in subsection (b).
(d) A transaction subject to this act is also subject to other applicable substantive law.
(a) Section 102 of the federal Electronic Signatures in Global and National Commerce Act (the Federal Act) preempts state law pertaining to interstate and foreign commerce as to the matters covered by the act; except that, as provided in section 102 (a) of the act:
A State statute, regulation, or other rule of law may modify, limit or supersede the provisions of section 101 with respect to State law only if such statute, regulation, or rule of law
(1) constitutes an enactment or adoption of the Uniform Electronic Transactions Act as approved and recommended for enactment in all the States by the National Conference of Commissioners on Uniform State Laws in 1999, except that any exception to the scope of such Act enacted by a State under section 3(b)(4) of such Act shall be preempted to the extent such exception is inconsistent with this title or title II, or would not be permitted under paragraph (2)(A)(ii) of this subsection....
This section conforms to the UETA as adopted by the National Conference of Commissioners on Uniform State Laws in 1999, except as noted in the comments to subsection (b) (4) (6).
The scope of the act is limited by its own terms to "transactions" as that term is defined in section 2 (15) (i.e., actions taken by two or more persons in the context of business, commercial, charitable or governmental affairs). Thus, transactions that occur in other contexts or records that are not part of a transaction would not be covered by the act.
(b)(1) The drafting committee noted that wills and testamentary trusts have traditionally been executed with a higher degree of formality than other documents and that those formalities, such as requiring the signatures of sworn witnesses, should be retained. While these matters may be accomplished electronically, the prevailing view is that many courts and practitioners are uncomfortable doing so at this time. The committee believes that the better approach is to exclude these items from the act initially, with the possibility of extending coverage to them in the future as individuals grow more comfortable with conducting their affairs electronically.
In addition, as the commentary to the UETA observes: "This exclusion is largely salutary given the unilateral context in which such records are generally created and the unlikely use of such records in a transaction as defined in this Act...."
(2) The act does not apply to Connecticuts Uniform Commercial Code, except as noted.
(3) The specified statutes are the Connecticut recording statutes. The drafting committee wanted to make clear that, although real property transactions may be completed electronically, documents related to those transactions that are to be recorded must be in paper form and meet all other statutory requirements.
(4) (6) These exclusions are taken from section 103(b) of the Federal Act. The drafting committee believed the same exclusions should apply at the state level and hoped that including them in the state act will provide consistency between state and federal law for parties participating in both intrastate and interstate commerce.
(c) This subsection makes clear that an electronic record used for purposes of a law that is excluded from this act may nevertheless be covered by the act when that same record is used for purposes of other laws not excluded from the act. The commentary to the UETA explains: "For example, this Act does not apply to an electronic record of a check when used for purposes of a transaction governed by Article 4 of the Uniform Commercial Code [which is excluded from the Act].... However, for purposes of check retention statutes [which are not excluded from the Act], the same electronic record of the check is covered by this Act...."
SECTION 4. PROSPECTIVE APPLICATION. This act applies to any electronic record or electronic signature created, generated, sent, communicated, received, or stored on or after the effective date of this act.
The drafting committee adopted this section of the UETA as drafted by the NCCUSL. The act applies only to validate electronic records and signatures generated subsequent to the effective date of the act. The validity of those generated prior to the effective date of this act must be determined by other law.
SECTION 5. USE OF ELECTRONIC RECORDS AND ELECTRONIC SIGNATURES; VARIATION BY AGREEMENT.
(a) This act does not require a record or signature to be created, generated, sent, communicated, received, stored, or otherwise processed or used by electronic means or in electronic form.
(b) This act applies only to transactions between parties each of which has agreed to conduct transactions by electronic means. Whether the parties agree to conduct a transaction by electronic means is determined from the context and surrounding circumstances, including the parties' conduct.
(c) A party that agrees to conduct a transaction by electronic means may refuse to conduct other transactions by electronic means. The right granted by this subsection may not be waived by agreement.
(d) Except as otherwise provided in this act, the effect of any of its provisions may be varied by agreement. The presence in certain provisions of this act of the words "unless otherwise agreed", or words of similar import, does not imply that the effect of other provisions may not be varied by agreement.
(e) Whether an electronic record or electronic signature has legal consequences is determined by
this act and other applicable law.
The drafting committee adopted this section of the UETA without revision.
This section limits applicability of the act to transactions which parties have agreed to conduct electronically. The act is intended to encourage and facilitate the use of electronic means to conduct business, but does not require it.
(b) Whether the parties have agreed to an electronic transaction is determined from the
surrounding circumstances. As the commentary to the UETA notes: "If this Act is to serve to facilitate electronic transactions, it must be applicable under circumstances not rising to a full fledged contract to use electronics.... Indeed, such a requirement would itself be an unreasonable barrier to electronic commerce, at odds with the fundamental purpose of this Act. Accordingly, the requisite agreement, express or implied, must be determined from all available circumstances and evidence."
(c) A party may refuse to conduct a transaction electronically, even if the person previously has conducted transactions electronically.
(e) The commentary to the UETA makes the following observation about this subsection: "While this Act validates and effectuates electronic records and electronic signatures, the legal effect of such records and signatures is left to existing substantive law outside this Act except in narrow circumstances.... Where a rule of law requires that the record contain minimum substantive content, the legal effect of such a record will depend on whether the record meets the substantive requirements of the other applicable law."
SECTION 6. CONSTRUCTION AND APPLICATION. This act must be construed and applied:
(1) to facilitate electronic transactions consistent with other applicable law;
(2) to be consistent with reasonable practices concerning electronic transactions and with the continued expansion of those practices; and
(3) to effectuate its general purpose to make uniform the law with respect to the subject of this act among States enacting it.
[(4) CONFORMITY WITH FEDERAL ACT.] [THE FEDERAL ACT REQUIRES THAT WE REFERENCE IT IN OUR ACT. SHOULD WE DO IT HERE? ELSEWHERE?]
The drafting committee adopted this section of the UETA unrevised, except for the addition of (4).
The following is from the commentary to the UETA:
This Act has been drafted to permit flexible application consistent with its purpose to validate electronic transactions. The provisions of this Act... allow the courts to apply them to new and unforeseen technologies and practices. Accordingly, this legislation is intended to set a framework for the validation of media which may be developed in the future and which demonstrate the same qualities as the electronic media contemplated and validated under this Act."
[(4) The drafting committee added this provision to clarify that this act is intended to comply with the Federal Act.]
SECTION 7. LEGAL RECOGNITION OF ELECTRONIC RECORDS, ELECTRONIC SIGNATURES, AND ELECTRONIC CONTRACTS.
(a) EXCEPT AS PROVIDED IN SECTION 8 OF THIS ACT, a record or signature may not be denied legal effect or enforceability solely because it is in electronic form.
(b) A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation.
(c) If a law requires a record to be in writing, an electronic record satisfies the law.
(d) If a law requires a signature, an electronic signature satisfies the law.
Subsections (a) and (b) establish that the form or medium "in which a record, signature or contract is
created, presented or retained does not effect its legal significance" (UETA, Commentary to Section 7), and that the medium alone may not be reason for denying either the legal effect or enforceability of a record.
However, the section does not prevent a record from being denied validity for other reasons, such as failure to comply with statutory requirements other than that the record be in writing or the absence of agreement between the parties that the transaction be conducted electronically.
Subsections (c) and (d) "are particularized applications of subsection (a). The purpose is to validate and
effectuate electronic records and signatures as the equivalent of writings, subject to all rules applicable to the efficacy of a writing, except as such rules are modified by the more specific provisions of the Act" (UETA, Commentary to Section 7).
SECTION 8. CONSUMER DISCLOSURES (NEW SECTION)
(a) Notwithstanding subdivision (1), if a statute, regulation, or other rule of law requires that information relating to a transaction or transactions be provided or made available to a consumer in writing, the use of an electronic record to provide or make available (whichever is required) such information satisfies the requirement that such information be in writing if:
(1) The consumer has affirmatively consented to such use and has not withdrawn such consent;
(2) the consumer, prior to consenting, is provided with a clear and conspicuous statement:
(A) informing the consumer of (i) any right or option of the consumer to have the record provided or made available on paper or in nonelectronic form, and (ii) the right of the consumer to withdraw the consent to have the record provided or made available in an electronic form and of any conditions, consequences (which may include termination of the parties' relationship), or fees in the event of such withdrawal;
(B) informing the consumer of whether the consent applies (i) only to the particular transaction which gave rise to the obligation to provide the record, or (ii) to identified categories of records that may be provided or made available during the course of the parties' relationship;
(C) describing the procedures the consumer must use to withdraw consent as provided in subdivision (A) and to update information needed to contact the consumer electronically; and
(D) informing the consumer (i) how, after the consent, the consumer may, upon request, obtain a paper copy of an electronic record, and (ii) whether any fee will be charged for such copy;
(3) the consumer:
(A) prior to consenting, is provided with a statement of the hardware and software requirements for access to and retention of the electronic records; and
(B) consents electronically, or confirms his or her consent electronically, in a manner that reasonably demonstrates that the consumer can access information in the electronic form that will be used to provide the information that is the subject of the consent; and
(4) after the consent of a consumer in accordance with subdivision (1), if a change in the hardware or software requirements needed to access or retain electronic records creates a material risk that the consumer will not be able to access or retain a subsequent electronic record that was the subject of the consent, the person providing the electronic record:
(A) provides the consumer with a statement of (i) the revised hardware and software requirements for access to and retention of the electronic records, and (ii) the right to withdraw consent without the imposition of any fees for such withdrawal and without the imposition of any condition or consequence that was not disclosed under subparagraph (A) of subdivision (2); and
(B) again complies with subdivision (3).
(b) Nothing in this act affects the content or timing of any disclosure or other record required to be provided or made available to any consumer under any statute, regulation, or other rule of law.
(c) If a law that was enacted prior to this act expressly requires a record to be provided or made available by a specified method that requires verification or acknowledgment of receipt, the record may be provided or made available electronically only if the method used provides verification or acknowledgment of receipt (whichever is required).
(d) The legal effectiveness, validity, or enforceability of any contract executed by a consumer shall not be denied solely because of the failure to obtain electronic consent or confirmation of consent by that consumer in accordance with subparagraph (B) of subdivision (3) of subsection (a).
(e) Withdrawal of consent by a consumer shall not affect the legal effectiveness, validity, or enforceability of electronic records provided or made available to that consumer in accordance with subsection (a) prior to implementation of the consumer's withdrawal of consent. A consumer's withdrawal of consent shall be effective within a reasonable period of time after receipt of the withdrawal by the provider of the record. Failure to comply with subdivision (4) of subsection (a) may, at the election of the consumer, be treated as a withdrawal of consent for purposes of this paragraph.
(f) This section does not apply to any records that are provided or made available to a consumer who has consented prior to the effective date of this title to receive such records in electronic form as permitted by any statute, regulation, or other rule of law.
(g) An oral communication or a recording of an oral communication shall not qualify as an electronic record for purposes of this subsection except as otherwise provided under applicable law.
(h) Notwithstanding the requirements of subsection (a), if information required to be provided or made available to a consumer in writing under subsection (a) is provided by electronic record in accordance with subsection (c) of section 101 of the Electronic Signatures in Global and National Commerce Act, as from time to time amended, the use of the electronic record to provide or make available such information satisfies the requirement that the information be provided in writing.
This section does not appear in the UETA. The language is from Section 101(c) of the Federal Act. The drafting committee believed that these consumer protections are appropriate for the state act and that parties engaged in both intrastate and interstate transactions will benefit from having identical consumer provisions with which to comply.
(a) Subsection (a) is sometimes called the "opt-in" provision. The subsection permits information, required to be given to a consumer in writing, to be given electronically if the consumer consents after being provided with the information specified in subdivision (2) of the subsection, and if the consumer demonstrates that he can access the information in the electronic form to be used. The consumer also must be informed of any changes in the hardware or software requirements for accessing the information, and the person providing the information must again comply with subdivision (2).
Subsections (b) and (c) confirm that electronic notices must comply with other requirements of law.
Subsection (d) permits the underlying contract between the parties to remain in force despite the failure to obtain the consumers consent as required in subsection (a)(3) (which requires that the consumer be given the hardware and software requirements for accessing the information), if that failure is the sole basis for challenging the validity of the contract.
Subsection (e) permits a consumer to withdraw his consent and validates electronic records provided to the consumer prior to that withdrawal.
Subsection (f) validates any records given electronically to a consumer who agreed prior to the effective date of the act to receive the information in that manner.
Subsection (g) prohibits oral communications or "recordings of oral communications" from being deemed consent in accordance with the section, except as may otherwise be provided by law.
The drafting committee added subsection (h) to permit compliance with the Federal Act, as it may be subsequently amended, to constitute compliance with this section. The drafting committee considered simply referencing the Federal Act and any amendments without including the provisions of Section 101(c) in this act. However, it concluded that including the provisions in the act clearly informed parties subject to the section of their obligations to consumers without requiring them to consult the Federal Act.
[I WOULD LIKE TO RAISE SOME OF THE PREEMPTION MATTERS WE SPOKE OF AT THE LAST MEETING IN THE CONTEXT OF THIS SUBSECTION FOR FURTHER DISCUSSION.
WHAT HAPPENS IF THE FEDERAL ACT IS AMENDED? DOES IT RESULT IN TWO DIFFERENT CONSUMER STANDARDS IN CONNECTICUT ONE FOR INTRASTATE AND ONE FOR INTERSTATE TRANSACTIONS?
DOES ADOPTING UETA PERMIT US TO SUPERSEDE OR MODIFY SECTION 101(c) OF THE FEDERAL ACT PER SECTION 102(a)(1) OF THAT ACT? IN THAT CASE, AN AMENDMENT ON THE FEDERAL LEVEL WOULDNT BE EFFECTIVE IN CONNECTICUT. WOULD CONNECTICUT THEN HAVE DIFFERENT STANDARDS FROM THE FEDS AS TO INTERSTATE TRANSACTIONS AS WELL? OF COURSE, A PARTY COULD ALWAYS MEET BOTH STANDARDS BY SIMPLY COMPLYING WITH THE FEDERAL STANDARD. BUT WHAT IF THOSE STANDARDS BECOME MORE STRINGENT, AND PARTIES WOULD RATHER COMPLY ONLY WITH CONNECTICUTS STANDARDS? IS THAT OK?
ALTERNATIVELY, DOES MODIFYING UETA BY INCLUDING SOME OF THE FEDERAL PROVISIONS MEAN THE FEDERAL ACT PREEMPTS ENTIRELY? IF SO, WHAT IS THE EFFECT OF THIS ACT?]
SECTION 9. PROVISION OF INFORMATION IN WRITING; PRESENTATION OF RECORDS.
(a) If parties have agreed to a conduct transaction by electronic means and a law requires a person to provide, send, or deliver information in writing to another person, the requirement is satisfied if the information is provided, sent, or delivered, as the case may be, in an electronic record capable of retention by the recipient at the time of receipt. An electronic record is not capable of retention by the recipient if the sender or its information processing system inhibits the ability of the recipient to print or store the electronic record.
(b) If a law other than this act requires a record (i) to be posted or displayed in a certain manner, (ii) to be sent, communicated, or transmitted by a specified method, or (iii) to contain information that is formatted in a certain manner, the following rules apply:
(1) The record must be posted or displayed in the manner specified in the other law.
(2) Except as otherwise provided in subsection (d)(2), the record must be sent, communicated, or transmitted by the method specified in the other law.
(3) The record must contain the information formatted in the manner specified in the other law.
(c) If a sender inhibits the ability of a recipient to store or print an electronic record, the electronic record is not enforceable against the recipient.
(d) The requirements of this section may not be varied by agreement, but:
(1) to the extent a law other than this act requires information to be provided, sent, or delivered in writing but permits that requirement to be varied by agreement, the requirement under subsection (a) that the information be in the form of an electronic record capable of retention may also be varied by agreement; and
(2) a requirement under a law other than this act to send, communicate, or transmit a record by [first-class mail, postage prepaid] [regular United States mail], may be varied by agreement to the extent permitted by the other law.
SECTION 10. ATTRIBUTION AND EFFECT OF ELECTRONIC RECORD AND ELECTRONIC SIGNATURE.
(a) An electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person 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.
(b) The effect of an electronic record or electronic signature attributed to a person under subsection (a) is determined from the context and surrounding circumstances at the time of its creation, execution, or adoption, including the parties' agreement, if any, and otherwise as provided by law.
SECTION 11. EFFECT OF CHANGE OR ERROR. If a change or error in an electronic record occurs in a transmission between parties to a transaction, the following rules apply:
(1) If the parties have agreed to use a security procedure to detect changes or errors and one party has conformed to the procedure, but the other party has not, and the nonconforming party would have detected the change or error had that party also conformed, the conforming party may avoid the effect of the changed or erroneous electronic record.
(2) In an automated transaction involving an individual, the individual may avoid the effect of an electronic record that resulted from an error made by the individual in dealing with the electronic agent of another person if the electronic agent did not provide an opportunity for the prevention or correction of the error and, at the time the individual learns of the error, the individual:
(A) promptly notifies the other person of the error and that the individual did not intend to be bound by the electronic record received by the other person;
(B) takes reasonable steps, including steps that conform to the other person's reasonable instructions, to return to the other person or, if instructed by the other person, to destroy the consideration received, if any, as a result of the erroneous electronic record; and
(C) has not used or received any benefit or value from the consideration, if any, received from the other person.
(3) If neither paragraph (1) nor paragraph (2) applies, the change or error has the effect provided by other law, including the law of mistake, and the parties' contract, if any.
(4) Paragraphs (2) and (3) may not be varied by agreement.
SECTION 12. NOTARIZATION AND ACKNOWLEDGMENT. If a law requires a signature or record to be notarized, acknowledged, verified, or made under oath, the requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable law, is attached to or logically associated with the signature or record.
SECTION 13. RETENTION OF ELECTRONIC RECORDS; ORIGINALS.
(a) If a law requires that a record be retained, the requirement is satisfied by retaining an electronic record of the information in the record which:
(1) accurately reflects the information set forth in the record after it was first generated in its final form as an electronic record or otherwise; and
(2) remains accessible for later reference.
(b) A requirement to retain a record in accordance with subsection (a) does not apply to any information the sole purpose of which is to enable the record to be sent, communicated, or received.
(c) A person may satisfy subsection (a) by using the services of another person if the requirements of that subsection are satisfied.
(d) If a law requires a record to be presented or retained in its original form, or provides consequences if the record is not presented or retained in its original form, that law is satisfied by an electronic record retained in accordance with subsection (a).
(e) If a law requires retention of a check, that requirement is satisfied by retention of an electronic record of the information on the front and back of the check in accordance with subsection (a).
(f) A record retained as an electronic record in accordance with subsection (a) satisfies a law requiring a person to retain a record for evidentiary, audit, or like purposes, unless a law enacted after the effective date of this act specifically prohibits the use of an electronic record for the specified purpose.
(g) This section does not preclude a governmental agency of this State from specifying additional requirements for the retention of a record subject to the agency's jurisdiction.
SECTION 14. ADMISSIBILITY IN EVIDENCE. In a proceeding, evidence of a record or signature may not be excluded solely because it is in electronic form.
SECTION 15. AUTOMATED TRANSACTION. In an automated transaction, the following rules apply:
(1) A contract may be formed by the interaction of electronic agents of the parties, even if no individual was aware of or reviewed the electronic agents' actions or the resulting terms and agreements.
(2) A contract may be formed by the interaction of an electronic agent and an individual, acting on the individual's own behalf or for another person, including by an interaction in which the individual performs actions that the individual is free to refuse to perform and which the individual knows or has reason to know will cause the electronic agent to complete the transaction or performance.
(3) The terms of the contract are determined by the substantive law applicable to it.
SECTION 16. TIME AND PLACE OF SENDING AND RECEIPT.
(a) Unless otherwise agreed between the sender and the recipient, an electronic record is sent when it:
(1) is addressed properly or otherwise directed properly to an information processing system that the recipient has designated or uses for the purpose of receiving electronic records or information of the type sent and from which the recipient is able to retrieve the electronic record;
(2) is in a form capable of being processed by that system; and
(3) enters an information processing system outside the control of the sender or of a person that sent the electronic record on behalf of the sender or enters a region of the information processing system designated or used by the recipient which is under the control of the recipient.
(b) Unless otherwise agreed between a sender and the recipient, an electronic record is received when:
(1) it enters an information processing system that the recipient has designated or uses for the purpose of receiving electronic records or information of the type sent and from which the recipient is able to retrieve the electronic record; and
(2) it is in a form capable of being processed by that system.
(c) Subsection (b) applies even if the place the information processing system is located is different from the place the electronic record is deemed to be received under subsection (d).
(d) Unless otherwise expressly provided in the electronic record or agreed between the sender and the recipient, an electronic record is deemed to be sent from the sender's place of business and to be received at the recipient's place of business. For purposes of this subsection, the following rules apply:
(1) If the sender or recipient has more than one place of business, the place of business of that person is the place having the closest relationship to the underlying transaction.
(2) If the sender or the recipient does not have a place of business, the place of business is the sender's or recipient's residence, as the case may be.
(e) An electronic record is received under subsection (b) even if no individual is aware of its receipt.
(f) Receipt of an electronic acknowledgment from an information processing system described in subsection (b) establishes that a record was received but, by itself, does not establish that the content sent corresponds to the content received.
(g) If a person is aware that an electronic record purportedly sent under subsection (a), or purportedly received under subsection (b), was not actually sent or received, the legal effect of the sending or receipt is determined by other applicable law. Except to the extent permitted by the other law, the requirements of this subsection may not be varied by agreement.
SECTION 17. TRANSFERABLE RECORDS.
(a) In this section, "transferable record" means an electronic record that:
(1) would be a note under [Article 3 of the Uniform Commercial Code] or a document under [Article 7 of the Uniform Commercial Code] if the electronic record were in writing; and
(2) the issuer of the electronic record expressly has agreed is a transferable record.
(b) A person has control of a transferable record if a system employed for evidencing the transfer of interests in the transferable record reliably establishes that person as the person to which the transferable record was issued or transferred.
(c) A system satisfies subsection (b), and a person is deemed to have control of a transferable record, if the transferable record is created, stored, and assigned in such a manner that:
(1) a single authoritative copy of the transferable record exists which is unique, identifiable, and, except as otherwise provided in paragraphs (4), (5), and (6), unalterable;
(2) the authoritative copy identifies the person asserting control as:
(A) the person to which the transferable record was issued; or
(B) if the authoritative copy indicates that the transferable record has been transferred, the person to which the transferable record was most recently transferred;
(3) the authoritative copy is communicated to and maintained by the person asserting control or its designated custodian;
(4) copies or revisions that add or change an identified assignee of the authoritative copy can be made only with the consent of the person asserting control;
(5) each copy of the authoritative copy and any copy of a copy is readily identifiable as a copy that is not the authoritative copy; and
(6) any revision of the authoritative copy is readily identifiable as authorized or unauthorized.
(d) Except as otherwise agreed, a person having control of a transferable record is the holder, as defined in [Section 1-201(20) of the Uniform Commercial Code], of the transferable record and has the same rights and defenses as a holder of an equivalent record or writing under [the Uniform Commercial Code], including, if the applicable statutory requirements under [Section 3-302(a), 7-501, or 9-308 of the Uniform Commercial Code] are satisfied, the rights and defenses of a holder in due course, a holder to which a negotiable document of title has been duly negotiated, or a purchaser, respectively. Delivery, possession, and indorsement are not required to obtain or exercise any of the rights under this subsection.
(e) Except as otherwise agreed, an obligor under a transferable record has the same rights and defenses as an equivalent obligor under equivalent records or writings under [the Uniform Commercial Code].
(f) If requested by a person against which enforcement is sought, the person seeking to enforce the transferable record shall provide reasonable proof that the person is in control of the transferable record. Proof may include access to the authoritative copy of the transferable record and related business records sufficient to review the terms of the transferable record and to establish the identity of the person having control of the transferable record.
[SECTION 18. CREATION AND RETENTION OF ELECTRONIC RECORDS AND CONVERSION OF WRITTEN RECORDS BY GOVERNMENTAL AGENCIES. [Each governmental agency] [The [designated state officer]] of this State shall determine whether, and the extent to which, [it] [a governmental agency] will create and retain electronic records and convert written records to electronic records.]
[SECTION 19. ACCEPTANCE AND DISTRIBUTION OF ELECTRONIC RECORDS BY GOVERNMENTAL AGENCIES.
(a) Except as otherwise provided in Section 13(f) of this act, [each governmental agency] [the [designated state officer]] of this State shall determine whether, and the extent to which, [it] [a governmental agency] will send and accept electronic records and electronic signatures to and from other persons and otherwise create, generate, communicate, store, process, use, and rely upon electronic records and electronic signatures.
(b) To the extent that a governmental agency uses electronic records and electronic signatures under subsection (a), the [governmental agency] [designated state officer], giving due consideration to security, may specify:
(1) the manner and format in which the electronic records must be created, generated, sent, communicated, received, and stored and the systems established for those purposes;
(2) if electronic records must be signed by electronic means, the type of electronic signature required, the manner and format in which the electronic signature must be affixed to the electronic record, and the identity of, or criteria that must be met by, any third party used by a person filing a document to facilitate the process;
(3) control processes and procedures as appropriate to ensure adequate preservation, disposition, integrity, security, confidentiality, and auditability of electronic records; and
(4) any other required attributes for electronic records which are specified for corresponding nonelectronic records or reasonably necessary under the circumstances.
(c) Except as otherwise provided in Section 13(f) of this act, this act does not require a governmental agency of this State to use or permit the use of electronic records or electronic signatures.]
[SECTION 20. INTEROPERABILITY. The [governmental agency] [designated officer] of this State which adopts standards pursuant to Section 19 of this act may encourage and promote consistency and interoperability with similar requirements adopted by other governmental agencies of this and other States and the federal government and nongovernmental persons interacting with governmental agencies of this State. If appropriate, those standards may specify differing levels of standards from which governmental agencies of this State may choose in implementing the most appropriate standard for a particular application.]
SECTION 21. SEVERABILITY CLAUSE. If any provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.
SECTION 22. EFFECTIVE DATE. This act takes effect .........................