HOUSE AMENDED
PRIOR PRINTER'S NOS. 741, 1182, 1404, PRINTER'S NO. 1487
1443
No. 555 Session of 1999
INTRODUCED BY HART, JUBELIRER, MELLOW, BRIGHTBILL, CONTI, DENT,
THOMPSON, GERLACH, WOZNIAK, EARLL, SLOCUM, KUKOVICH, MUSTO,
WAGNER, BOSCOLA, WAUGH, CORMAN, KASUNIC, ROBBINS AND MURPHY,
MARCH 24, 1999
AS REPORTED FROM COMMITTEE ON COMMERCE AND ECONOMIC DEVELOPMENT,
HOUSE OF REPRESENTATIVES, AS AMENDED, NOVEMBER 10, 1999
AN ACT
1 Regulating electronic transactions.
2 TABLE OF CONTENTS
3 Chapter 1. Preliminary Provisions
4 Section 101. Short title.
5 Section 102. Legislative findings.
6 Section 103. Definitions.
7 Section 104. Scope.
8 Section 105. Prospective application.
9 Chapter 3. Uniform Electronic Transactions
10 Section 301. Use of electronic records and electronic
11 signatures; variation by agreement.
12 Section 302. Construction and application.
13 Section 303. Legal recognition of electronic records,
14 electronic signatures and electronic contracts.
15 Section 304. Provision of information in writing; presentation
1 of records.
2 Section 305. Effect of change or error. <--
3 Section 306. Notarization and acknowledgment.
4 Section 307. Retention of electronic records; originals.
5 Section 308. Admissibility in evidence.
6 Section 309. Automated transaction.
7 Section 310. Time and place of sending and receipt.
8 Section 311. Transferable records.
9 Chapter 5. Attribution of Records and Signatures
10 Section 501. Attribution of electronic records and signatures.
11 Section 502. Use of security procedures.
12 Section 503. Effect of using security procedure to detect
13 errors or changes.
14 Chapter 7. Governmental Agencies
15 Section 701. Creation and retention of electronic records and
16 conversion of written records.
17 Section 702. Acceptance and distribution of electronic records.
18 Section 703. Interoperability.
19 SECTION 305. ATTRIBUTION AND EFFECT OF ELECTRONIC RECORDS AND <--
20 SIGNATURES.
21 SECTION 306. EFFECT OF CHANGE OR ERROR.
22 SECTION 307. NOTARIZATION AND ACKNOWLEDGMENT.
23 SECTION 308. RETENTION OF ELECTRONIC RECORDS; ORIGINALS.
24 SECTION 309. ADMISSIBILITY IN EVIDENCE.
25 SECTION 310. AUTOMATED TRANSACTION.
26 SECTION 311. TIME AND PLACE OF SENDING AND RECEIPT.
27 SECTION 312. TRANSFERABLE RECORDS.
28 CHAPTER 5. GOVERNMENTAL AGENCIES
29 SECTION 501. CREATION AND RETENTION OF ELECTRONIC RECORDS AND
30 CONVERSION OF WRITTEN RECORDS.
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1 SECTION 502. ACCEPTANCE AND DISTRIBUTION OF ELECTRONIC RECORDS.
2 SECTION 503. INTEROPERABILITY.
3 CHAPTER 7. ATTRIBUTION OF RECORDS AND SIGNATURES
4 SECTION 701. USE OF SECURITY PROCEDURES.
5 SECTION 702. EFFECT OF USING SECURITY PROCEDURE TO DETECT
6 ERRORS OR CHANGES.
7 SECTION 703. COMMERCIAL REASONABLENESS.
8 SECTION 704. INAPPLICABILITY TO CONSUMERS.
9 SECTION 705. VARIATION BY AGREEMENT.
10 Chapter 51. Miscellaneous Provisions
11 Section 5101. Effective date.
12 The General Assembly of the Commonwealth of Pennsylvania
13 hereby enacts as follows:
14 CHAPTER 1
15 PRELIMINARY PROVISIONS
16 Section 101. Short title.
17 (A) GENERAL.--This act shall be known and may be cited as <--
18 the Uniform Electronic Transactions Act. <--
19 (B) UNIFORM.--CHAPTERS 1, 3 AND 5 SHALL BE KNOWN AND MAY BE <--
20 CITED AS THE UNIFORM ELECTRONIC TRANSACTIONS ACT.
21 Section 102. Legislative findings.
22 The General Assembly finds and declares as follows:
23 (1) electronic commerce is expanding rapidly and is an
24 engine for economic growth in this Commonwealth and the
25 United States; and
26 (2) uniformity among state laws recognizing the validity
27 and enforceability of electronic signatures, records and
28 writings is important to the continued expansion of
29 electronic commerce.
30 The General Assembly should enact the Uniform Electronic
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1 Transactions Act submitted to the state legislatures by the
2 National Conference of Commissioners of Uniform State Laws with
3 additions to enhance and promote the reliability of electronic
4 commerce.
5 Section 103. Definitions.
6 The following words and phrases when used in this act shall
7 have the meanings given to them in this section unless the
8 context clearly indicates otherwise:
9 "Agreement." The bargain of the parties in fact, as found in
10 their language or inferred from other circumstances and from
11 rules, regulations and procedures given the effect of agreements
12 under laws otherwise applicable to a particular transaction.
13 "Automated transaction." A transaction conducted or
14 performed, in whole or in part, by electronic means or
15 electronic records, in which the acts or records of one or both
16 parties are not reviewed by an individual in the ordinary course
17 in forming a contract, performing under an existing contract or
18 fulfilling an obligation required by the transaction.
19 "Computer program." A set of statements or instructions to
20 be used directly or indirectly in an information processing
21 system in order to bring about a certain result.
22 "Consumer." An individual involved in an electronic
23 transaction primarily for personal, family or household
24 purposes.
25 "Contract." The total legal obligation resulting from the
26 parties' agreement as affected by this act and other applicable
27 law.
28 "Electronic." Relating to technology having electrical,
29 digital, magnetic, wireless, optical, electromagnetic or similar
30 capabilities.
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1 "Electronic agent." A computer program or an electronic or
2 other automated means used independently to initiate an action
3 or respond to electronic records or performances, in whole or in
4 part, without review or action by an individual.
5 "Electronic record." A record created, generated, sent,
6 communicated, received or stored by electronic means.
7 "Electronic signature." An electronic sound, symbol or
8 process attached to or logically associated with a record and
9 executed or adopted by a person with the intent to sign the
10 record.
11 "Executive agency." A department, board, commission,
12 authority, officer or agency, of the Executive Department,
13 subject to the policy, supervision and control of the Governor.
14 "Governmental agency." An executive agency, an independent
15 agency, a State-affiliated entity or other instrumentality of
16 the Commonwealth. The term includes authorities, political
17 subdivisions and State-related institutions.
18 "Independent agency." A board, commission or other agency or
19 officer of the Executive Department, that is not subject to the
20 policy supervision and control of the Governor.
21 "Information." Data, text, images, sounds, codes, computer
22 programs, software, data bases or the like.
23 "Information processing system." An electronic system for
24 creating, generating, sending, receiving, storing, displaying or
25 processing information.
26 "Person." Any individual, corporation, business trust,
27 estate, trust, partnership, limited liability company,
28 association, joint venture, governmental agency, public
29 corporation or other legal or commercial entity.
30 "Record." Information which is inscribed on a tangible
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1 medium or is stored in an electronic or other medium and which
2 is retrievable in perceivable form.
3 "Security procedure." A procedure employed for the purpose
4 of verifying that an electronic signature, record or performance
5 is that of a specific person or for detecting changes or errors
6 in the information in an electronic record. The term includes a
7 procedure which requires the use of algorithms or other codes,
8 identifying words or numbers, encryption or callback or other
9 acknowledgment procedures.
10 "State." A state of the United States, the District of
11 Columbia, Puerto Rico, the United States Virgin Islands or any
12 territory or insular possession subject to the jurisdiction of
13 the United States. The term includes an Indian Tribe or Band or
14 an Alaskan Native Village, which is recognized by Federal law or
15 formally acknowledged by a state.
16 "State-affiliated entity or other instrumentality." A
17 Commonwealth authority or a Commonwealth entity or
18 instrumentality. The term includes the Pennsylvania Turnpike
19 Commission, the Pennsylvania Housing Finance Agency, the
20 Pennsylvania Municipal Retirement System, the Pennsylvania
21 Infrastructure Investment Authority, the State Public School
22 Building Authority, the Pennsylvania Higher Educational
23 Facilities Authority and the State System of Higher Education.
24 "State-related institution." The Pennsylvania State
25 University, the University of Pittsburgh, Lincoln University or
26 Temple University.
27 "Transaction." An action or set of actions occurring between
28 two or more persons relating to the conduct of business,
29 commercial or governmental affairs.
30 Section 104. Scope.
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1 (a) General rule.--Except as provided in subsection (b),
2 this act applies to electronic records and electronic signatures
3 relating to a transaction.
4 (b) Exception.--Subject to subsection (c), this act does not
5 apply to a transaction to the extent it is governed by any of
6 the following:
7 (1) A law governing the creation and execution of wills,
8 codicils or testamentary trusts.
9 (2) The provisions of 13 Pa.C.S. (relating to Commercial <--
10 Code COMMERCIAL CODE) other than: <--
11 (i) §§ SECTIONS 1107 (relating to waiver or <--
12 renunciation of claim or right after breach) and 1206
13 (relating to statute of frauds for kinds of personal
14 property not otherwise covered);
15 (ii) Division 2 (relating to sales); and
16 (iii) Division 2A (relating to leases).
17 (c) Limitation of exception.--This act applies to an
18 electronic record or electronic signature otherwise excluded
19 from the application of this act under subsection (b) to the
20 extent it is governed by a law other than those specified in
21 subsection (b).
22 (d) Other law.--A transaction subject to this act is also
23 subject to other applicable substantive law.
24 Section 105. Prospective application.
25 This act applies to an electronic record or electronic
26 signature created, generated, sent, communicated, received or
27 stored on or after the effective date of this act.
28 CHAPTER 3
29 UNIFORM ELECTRONIC TRANSACTIONS
30 Section 301. Use of electronic records and electronic
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1 signatures; variation by agreement.
2 (a) Electronic means or form not required.--This act does
3 not require a record or signature to be created, generated,
4 sent, communicated, received, stored or otherwise processed or
5 used by electronic means or in electronic form.
6 (b) Consent.--This act applies only to transactions between
7 parties each of which has agreed to conduct transactions by
8 electronic means. Whether the parties agree to conduct a
9 transaction by electronic means is determined from the context
10 and surrounding circumstances, including the parties' conduct.
11 (c) Other transactions.--A party that agrees to conduct a
12 transaction by electronic means may refuse to conduct other
13 transactions by electronic means. The right granted by this
14 subsection may not be waived by agreement.
15 (d) Variance VARIATION by agreement.--Except as otherwise <--
16 provided in this act, the effect of any of its provisions may be
17 varied by agreement. The presence in certain provisions of this
18 act of the words "unless otherwise agreed," or words of similar
19 import, does not imply that the effect of other provisions may
20 not be varied by agreement.
21 (e) Conclusions of law.--Whether an electronic record or
22 electronic signature has legal consequences is determined by
23 this act and other applicable law.
24 Section 302. Construction and application.
25 This act must be construed and applied:
26 (1) to facilitate electronic transactions consistent
27 with other applicable law;
28 (2) to be consistent with reasonable practices
29 concerning electronic transactions and with the continued
30 expansion of those practices; and
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1 (3) to effectuate its general purpose to make uniform
2 the law with respect to the subject of this act among states
3 enacting it.
4 Section 303. Legal recognition of electronic records,
5 electronic signatures and electronic contracts.
6 (a) Form.--A record or signature may not be denied legal
7 effect or enforceability solely because it is in electronic
8 form.
9 (b) Formation.--A contract may not be denied legal effect or
10 enforceability solely because an electronic record was used in
11 its formation.
12 (c) Writing.--If a law requires a record to be in writing,
13 an electronic record satisfies the law.
14 (d) Signature.--If a law requires a signature, an electronic
15 signature satisfies the law.
16 Section 304. Provision of information in writing; presentation
17 of records.
18 (a) Writing.--If parties have agreed to conduct a
19 transaction by electronic means and a law requires a person to
20 provide, send or deliver information in writing to another
21 person, the requirement is satisfied if the information is
22 provided, sent or delivered, as the case may be, in an
23 electronic record capable of retention by the recipient at the
24 time of receipt. An electronic record is not capable of
25 retention by the recipient if the sender or its information
26 processing system inhibits the ability of the recipient to print
27 or store the electronic record.
28 (b) Records.--If a law other than this act requires a record
29 to be posted or displayed in a certain manner, to be sent,
30 communicated or transmitted by a specified method or to contain
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1 information which is formatted in a certain manner, the
2 following rules apply:
3 (1) The record must be posted or displayed in the manner
4 specified in the other law.
5 (2) Except as otherwise provided in subsection (d)(2),
6 the record must be sent, communicated or transmitted by the
7 method specified in the other law.
8 (3) The record must contain the information formatted in
9 the manner specified in the other law.
10 (c) Unenforceable.--If a sender inhibits the ability of a
11 recipient to store or print an electronic record, the electronic
12 record is not enforceable against the recipient.
13 (d) Variance VARIATION by agreement.--The requirements of <--
14 this section may not be varied by agreement except as follows:
15 (1) To the extent a law other than this act requires
16 information to be provided, sent or delivered, in writing,
17 but permits that requirement to be varied by agreement, the
18 requirement under subsection (a) that the information be in
19 the form of an electronic record capable of retention may
20 also be varied by agreement.
21 (2) A requirement under a law other than this act to
22 send, communicate or transmit a record by first-class mail,
23 postage prepaid, regular United States mail, may be varied by
24 agreement to the extent permitted by the other law.
25 SECTION 305. ATTRIBUTION AND EFFECT OF ELECTRONIC RECORDS AND <--
26 SIGNATURES.
27 (A) ATTRIBUTION.--AN ELECTRONIC RECORD OR ELECTRONIC
28 SIGNATURE IS ATTRIBUTABLE TO A PERSON IF IT WAS THE ACT OF THE
29 PERSON. THE ACT OF THE PERSON MAY BE SHOWN IN ANY MANNER,
30 INCLUDING A SHOWING OF THE EFFICACY OF ANY SECURITY PROCEDURE
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1 APPLIED TO DETERMINE THE PERSON TO WHICH THE ELECTRONIC RECORD
2 OR ELECTRONIC SIGNATURE WAS ATTRIBUTABLE.
3 (B) EFFECT.--THE EFFECT OF AN ELECTRONIC RECORD OR
4 ELECTRONIC SIGNATURE ATTRIBUTED TO A PERSON UNDER SUBSECTION (A)
5 IS DETERMINED:
6 (1) FROM THE CONTEXT AND SURROUNDING CIRCUMSTANCES AT
7 THE TIME OF ITS CREATION, EXECUTION OR ADOPTION, INCLUDING
8 THE PARTIES' AGREEMENT, IF ANY; AND
9 (2) OTHERWISE AS PROVIDED BY LAW.
10 Section 305 306. Effect of change or error. <--
11 If a change or error in an electronic record occurs in a
12 transmission between parties to a transaction, the following
13 rules apply:
14 (1) If the parties have agreed to use a security
15 procedure to detect changes or errors and one party has
16 conformed to the procedure, but the other party has not, and
17 the nonconforming party would have detected the change or
18 error had that party also conformed, the conforming party may
19 avoid the effect of the changed or erroneous electronic
20 record.
21 (2) In an automated transaction involving an individual,
22 the individual may avoid the effect of an electronic record
23 that resulted from an error made by the individual in dealing
24 with the electronic agent of another person if the electronic
25 agent did not provide an opportunity for the prevention or
26 correction of the error and, at the time the individual
27 learns of the error, the individual:
28 (i) promptly notifies the other person of the error
29 and that the individual did not intend to be bound by the
30 electronic record received by the other person;
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1 (ii) takes reasonable steps, including steps which
2 conform to the other person's reasonable instructions, to
3 return to the other person or, if instructed by the other
4 person, to destroy the consideration received, if any, as
5 a result of the erroneous electronic record; and
6 (iii) has not used or received any benefit or value
7 from the consideration, if any, received from the other
8 person.
9 (3) If neither paragraph (1) nor paragraph (2) applies,
10 the change or error has the effect provided by other law,
11 including the law of mistake, and the parties' contract, if
12 any.
13 (4) Paragraphs (2) and (3) may not be varied by
14 agreement.
15 Section 306 307. Notarization and acknowledgment. <--
16 If a law requires a signature or record to be notarized,
17 acknowledged, verified or made under oath, the requirement is
18 satisfied if the electronic signature of the person authorized
19 to perform those services, together with all other information
20 required to be included by other applicable law, is attached to
21 or logically associated with the signature or record.
22 Section 307 308. Retention of electronic records; originals. <--
23 (a) Requirement.--Subject to subsection (b), if a law
24 requires that a record be retained, the requirement is satisfied
25 by retaining an electronic record of the information in the
26 record which:
27 (1) accurately reflects the information set forth in the
28 record after it was first generated in its final form as an
29 electronic record or otherwise; and
30 (2) remains accessible for later reference.
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1 (b) Transmission information.--A requirement to retain a
2 record in accordance with subsection (a) does not apply to any
3 information the sole purpose of which is to enable the record to
4 be sent, communicated or received.
5 (c) Agents.--A person may satisfy subsection (a) by using
6 the services of another person if the requirements of that
7 subsection are satisfied.
8 (d) Originals.--If a law requires a record to be presented
9 or retained in its original form, or provides consequences if
10 the record is not presented or retained in its original form,
11 that law is satisfied by an electronic record retained in
12 accordance with subsection (a).
13 (e) Checks.--If a law requires retention of a check, that
14 requirement is satisfied by retention of an electronic record of
15 the information on the front and back of the check in accordance
16 with subsection (a).
17 (f) Evidence; audits.--A record retained as an electronic
18 record in accordance with subsection (a) satisfies a law
19 requiring a person to retain a record for evidentiary, audit or
20 like purposes unless a statute enacted after the effective date <--
21 of this act specifically prohibits the use of an electronic
22 record for the specified purpose.
23 (g) Governmental agencies.--This section does not preclude a
24 governmental agency of this Commonwealth from specifying
25 additional requirements for the retention of a record subject to
26 the governmental agency's jurisdiction, including the
27 requirement that a record be retained in a nonelectronic form.
28 Section 308 309. Admissibility in evidence. <--
29 In a proceeding, evidence of a record or signature may not be
30 excluded solely because it is in electronic form.
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1 Section 309 310. Automated transaction. <--
2 In an automated transaction, the following rules apply:
3 (1) A contract may be formed by the interaction of
4 electronic agents of the parties, even if no individual was
5 aware of or reviewed the electronic agents' actions or the
6 resulting terms and agreements.
7 (2) A contract may be formed by the interaction of an
8 electronic agent and an individual, acting on the
9 individual's own behalf or for another person, including by
10 an interaction in which the individual performs actions which
11 the individual is free to refuse to perform and which the
12 individual knows or has reason to know will cause the
13 electronic agent to complete the transaction or performance.
14 (3) The terms of the contract are determined by the
15 substantive law applicable to it.
16 Section 310 311. Time and place of sending and receipt. <--
17 (a) Sending.--Unless otherwise agreed between the sender and
18 the recipient, an electronic record is sent when it:
19 (1) is addressed properly or otherwise directed properly
20 to an information processing system that the recipient has
21 designated or uses for the purpose of receiving electronic
22 records or information of the type sent and from which the
23 recipient is able to retrieve the electronic record;
24 (2) is in a form capable of being processed by that
25 system; and
26 (3) enters an information processing system outside the
27 control of the sender or of a person that sent the electronic
28 record on behalf of the sender or enters a region of the
29 information processing system designated or used by the
30 recipient which is under the control of the recipient.
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1 (b) Receipt.--Unless otherwise agreed between a sender and
2 the recipient, an electronic record is received when:
3 (1) it enters an information processing system that the
4 recipient has designated or uses for the purpose of receiving
5 electronic records or information of the type sent and from
6 which the recipient is able to retrieve the electronic
7 record; and
8 (2) it is in a form capable of being processed by that
9 system.
10 (c) Physical location.--Subsection (b) applies even if the
11 place the information processing system is located is different
12 from the place the electronic record is deemed to be received
13 under subsection (d).
14 (d) Place of business.--Unless otherwise expressly provided
15 in the electronic record or agreed between the sender and the
16 recipient, an electronic record is deemed to be sent from the
17 sender's place of business and to be received at the recipient's
18 place of business. For purposes of this subsection, the
19 following rules apply:
20 (1) If the sender or recipient has more than one place
21 of business, the place of business of that person is the
22 place having the closest relationship to the underlying
23 transaction.
24 (2) If the sender or the recipient does not have a place
25 of business, the place of business is the sender's or
26 recipient's residence, as the case may be.
27 (e) Actual receipt.--An electronic record is received under
28 subsection (b) even if no individual is aware of its receipt.
29 (f) Contents.--Receipt of an electronic acknowledgment from
30 an information processing system described in subsection (b)
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1 establishes that a record was received but by itself does not
2 establish that the content sent corresponds to the content
3 received.
4 (g) Legal effect.--If a person is aware that an electronic
5 record purportedly sent under subsection (a), or purportedly
6 received under subsection (b), was not actually sent or
7 received, the legal effect of the sending or receipt is
8 determined by other applicable law. Except to the extent
9 permitted by the other law, the requirements of this subsection
10 may not be varied by agreement.
11 Section 311 312. Transferable records. <--
12 (a) Control.--A person has control of a transferable record
13 if a system employed for evidencing the transfer of interests in
14 the transferable record reliably establishes that person as the
15 person to which the transferable record was issued or
16 transferred.
17 (b) Compliance.--A system satisfies subsection (a), and a
18 person is deemed to have control of a transferable record, if
19 the transferable record is created, stored and assigned in such
20 a manner that all of the following paragraphs apply:
21 (1) A single authoritative copy of the transferable
22 record exists which is unique, identifiable and, except as
23 otherwise provided in paragraphs (4), (5) and (6),
24 unalterable.
25 (2) The authoritative copy identifies the person
26 asserting control as:
27 (i) the person to which the transferable record was
28 issued; or
29 (ii) if the authoritative copy indicates that the
30 transferable record has been transferred, the person to
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1 which the transferable record was most recently
2 transferred.
3 (3) The authoritative copy is communicated to and
4 maintained by the person asserting control or that person's
5 designated custodian.
6 (4) Copies or revisions which add or change an
7 identified assignee of the authoritative copy can be made
8 only with the consent of the person asserting control.
9 (5) Each copy of the authoritative copy and any copy of
10 a copy is readily identifiable as a copy which is not the
11 authoritative copy.
12 (6) Any revision of the authoritative copy is readily
13 identifiable as authorized or unauthorized.
14 (c) Holders.--Except as otherwise agreed, a person having
15 control of a transferable record is the holder, as defined in
16 paragraph (2) of the definition of "holder" in 13 Pa.C.S. § 1201
17 (relating to general definitions), of the transferable record
18 and has the same rights and defenses as a holder of an
19 equivalent record or writing under 13 Pa.C.S. (relating to
20 Commercial Code COMMERCIAL CODE), including, if the applicable <--
21 statutory requirements are satisfied, §§ SECTIONS 3302(a) <--
22 (relating to holder in due course), 7501 (relating to form of
23 negotiation and requirements of "due negotiation") and 9308
24 (relating to purchase of chattel paper and instruments).
25 Delivery, possession and endorsement are not required to obtain
26 or exercise any of the rights under this subsection.
27 (d) Obligors.--Except as otherwise agreed, an obligor under
28 a transferable record has the same rights and defenses as an
29 equivalent obligor under equivalent records or writings under 13
30 Pa.C.S (relating to Commercial Code COMMERCIAL CODE). <--
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1 (e) Proof.--If requested by a person against which
2 enforcement is sought, the person seeking to enforce the
3 transferable record shall provide reasonable proof that the
4 person is in control of the transferable record. Proof may
5 include access to the authoritative copy of the transferable
6 record and related business records sufficient to review the
7 terms of the transferable record and to establish the identity
8 of the person having control of the transferable record.
9 (f) Definition.--As used in this section, the term
10 "transferable record" means an electronic record:
11 (1) which would be a note under 13 Pa.C.S. Div. 3
12 (relating to negotiable instruments) or a document under 13
13 Pa.C.S. Div. 7 (relating to warehouse receipts, bills of
14 lading and other documents of title) if the electronic record
15 were in writing; and
16 (2) the issuer of the electronic record expressly has
17 agreed is a transferable record.
18 CHAPTER 5 <--
19 CHAPTER 5 <--
20 GOVERNMENTAL AGENCIES
21 SECTION 501. CREATION AND RETENTION OF ELECTRONIC RECORDS AND
22 CONVERSION OF WRITTEN RECORDS.
23 EACH GOVERNMENTAL AGENCY OF THIS COMMONWEALTH SHALL DETERMINE
24 WHETHER, AND THE EXTENT TO WHICH, IT WILL CREATE AND RETAIN
25 ELECTRONIC RECORDS AND CONVERT WRITTEN RECORDS TO ELECTRONIC
26 RECORDS. EXECUTIVE AGENCIES SHALL ALSO COMPLY WITH STANDARDS
27 PUBLISHED BY THE OFFICE OF ADMINISTRATION.
28 SECTION 502. ACCEPTANCE AND DISTRIBUTION OF ELECTRONIC RECORDS.
29 (A) OPTION.--EACH GOVERNMENTAL AGENCY OF THIS COMMONWEALTH
30 SHALL DETERMINE WHETHER, AND THE EXTENT TO WHICH, IT WILL SEND
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1 AND ACCEPT ELECTRONIC RECORDS AND ELECTRONIC SIGNATURES TO AND
2 FROM OTHER PERSONS AND OTHERWISE CREATE, GENERATE, COMMUNICATE,
3 STORE, PROCESS, USE AND RELY UPON ELECTRONIC RECORDS AND
4 ELECTRONIC SIGNATURES.
5 (B) SPECIFICS.--TO THE EXTENT THAT A GOVERNMENTAL AGENCY
6 USES ELECTRONIC RECORDS AND ELECTRONIC SIGNATURES UNDER
7 SUBSECTION (A), THE GOVERNMENTAL AGENCY, GIVING DUE
8 CONSIDERATION TO SECURITY, MAY SPECIFY ALL OF THE FOLLOWING:
9 (1) THE MANNER AND FORMAT IN WHICH THE ELECTRONIC
10 RECORDS MUST BE CREATED, GENERATED, SENT, COMMUNICATED,
11 RECEIVED AND STORED AND THE SYSTEMS ESTABLISHED FOR THOSE
12 PURPOSES.
13 (2) IF ELECTRONIC RECORDS MUST BE SIGNED BY ELECTRONIC
14 MEANS, THE TYPE OF ELECTRONIC SIGNATURE REQUIRED, THE MANNER
15 AND FORMAT IN WHICH THE ELECTRONIC SIGNATURE MUST BE AFFIXED
16 TO THE ELECTRONIC RECORD, AND THE IDENTITY OF OR CRITERIA
17 THAT MUST BE MET BY ANY THIRD PARTY USED BY A PERSON FILING A
18 DOCUMENT TO FACILITATE THE PROCESS.
19 (3) CONTROL PROCESSES AND PROCEDURES AS APPROPRIATE TO
20 ENSURE ADEQUATE PRESERVATION, DISPOSITION, INTEGRITY,
21 SECURITY, CONFIDENTIALITY AND AUDITABILITY OF ELECTRONIC
22 RECORDS.
23 (4) ANY OTHER REQUIRED ATTRIBUTES FOR ELECTRONIC RECORDS
24 WHICH ARE SPECIFIED FOR CORRESPONDING NONELECTRONIC RECORDS
25 OR REASONABLY NECESSARY UNDER THE CIRCUMSTANCES.
26 (C) NOT MANDATORY.--THIS CHAPTER DOES NOT REQUIRE A
27 GOVERNMENTAL AGENCY TO USE OR PERMIT THE USE OF ELECTRONIC
28 RECORDS OR ELECTRONIC SIGNATURES.
29 SECTION 503. INTEROPERABILITY.
30 THE STANDARDS PUBLISHED BY THE OFFICE OF ADMINISTRATION UNDER
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1 SECTION 501 SHOULD ENCOURAGE AND PROMOTE CONSISTENCY AND
2 INTEROPERABILITY WITH SIMILAR REQUIREMENTS ADOPTED BY OTHER
3 GOVERNMENTAL AGENCIES OF THIS AND OTHER STATES AND THE FEDERAL
4 GOVERNMENT AND NONGOVERNMENTAL PERSONS INTERACTING WITH A
5 GOVERNMENTAL AGENCY. IF APPROPRIATE, THOSE STANDARDS MAY SPECIFY
6 DIFFERING LEVELS OF STANDARDS FROM WHICH A GOVERNMENTAL AGENCY
7 MAY CHOOSE IN IMPLEMENTING THE MOST APPROPRIATE STANDARD FOR A
8 PARTICULAR APPLICATION.
9 CHAPTER 7
10 ATTRIBUTION OF RECORDS AND SIGNATURES
11 Section 501. Attribution of electronic records and signatures. <--
12 An electronic record or electronic signature is attributed to
13 a person if it was the act of that person or its electronic
14 agent, or if the person is otherwise bound by it under the law
15 of agency, the provisions of section 502 (relating to secure
16 electronic records and signatures) or other law. The party
17 relying on attribution of an electronic transaction to another
18 person has the burden of establishing attribution.
19 Section 502 701. Use of security procedures. <--
20 (a) Security procedure.--If there is a security procedure <--
21 between the parties with respect to the electronic transaction <--
22 SIGNATURE OR ELECTRONIC RECORD, the following rules apply: <--
23 (1) The effect of compliance with a security procedure
24 established by a law or regulation is determined by that law
25 or regulation.
26 (2) In all other cases, if the parties agree to use or
27 otherwise knowingly adopt a security procedure to verify the
28 person from which an electronic SIGNATURE OR ELECTRONIC <--
29 record has been sent, the ELECTRONIC SIGNATURE OR ELECTRONIC <--
30 record is attributable to the person identified by the
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1 security procedure if the person relying on the attribution
2 establishes SATISFIES THE BURDEN OF ESTABLISHING that: <--
3 (i) the security procedure was commercially
4 reasonable;
5 (ii) the party accepted or relied on the electronic
6 message in good faith and in compliance with the security
7 procedure and any additional agreement with or separate
8 instructions of the other party; and
9 (iii) the security procedure indicated that the
10 electronic message was from the person to which
11 attribution is sought.
12 (3) If the electronic message is not binding on a person <--
13 under section 501 but is otherwise binding under paragraph
14 (2), the person is nevertheless not bound under paragraph (2)
15 for the electronic message SIGNATURE OR ELECTRONIC RECORD IS <--
16 NOT ATTRIBUTABLE TO A PERSON UNDER SECTION 305 BUT WOULD BE
17 ATTRIBUTABLE TO THE PERSON UNDER THIS SECTION, THE ELECTRONIC
18 SIGNATURE OR ELECTRONIC RECORD IS NEVERTHELESS NOT
19 ATTRIBUTABLE TO THE PERSON UNDER THIS SECTION if the person
20 satisfies the burden of establishing that the electronic
21 message SIGNATURE OR ELECTRONIC RECORD was caused directly or <--
22 indirectly by a person:
23 (i) that was not entrusted at any time with the
24 right or duty to act for the person with respect to such
25 electronic messages SIGNATURE OR ELECTRONIC RECORD or <--
26 security procedure;
27 (ii) that lawfully obtained access to transmitting
28 facilities of the person if such access facilitated the
29 misuse of the security procedure; or
30 (iii) that obtained, from a source controlled by the
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1 person, information facilitating misuse of the security
2 procedure.
3 (b) Commercial reasonableness.--The efficacy and commercial <--
4 reasonableness of a security procedure is to be determined by
5 the court, taking into consideration the purposes of the
6 security procedure and the circumstances at the time the parties
7 adopted the procedure. A security procedure established by law
8 or regulation is commercially reasonable for transactions
9 governed by the law or regulation.
10 (c) Inapplicability to consumers.--The provisions of this
11 section shall not apply to any electronic transaction to which a
12 consumer is a party.
13 Section 503 702. Effect of using security procedure to detect <--
14 errors or changes.
15 (a) General rule.--If the parties use a commercially <--
16 reasonable security procedure to detect errors or changes in <--
17 WITH RESPECT TO an electronic transaction SIGNATURE OR <--
18 ELECTRONIC RECORD, the following rules shall apply:
19 (1) The effect of a security procedure is determined by
20 the agreement BETWEEN THE PARTIES or, in the absence of <--
21 agreement, by this section or any law establishing the
22 security procedure.
23 (2) Unless the circumstances indicate otherwise, if a
24 security procedure indicates that an electronic message <--
25 SIGNATURE OR ELECTRONIC RECORD has not been altered since a <--
26 particular time, it is treated as not having been altered
27 since that time.
28 (3) If a security procedure indicates that there is no <--
29 error in content, an electronic message is treated at the
30 time it was sent as having had the content intended by the
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1 person creating or sending it pursuant to the security
2 procedure.
3 (4) The sender is not bound by a change or error if:
4 (i) the sender has conformed to a security procedure
5 but the other party has not; and
6 (ii) the nonconforming party would have detected the
7 change if the nonconforming party had also conformed.
8 (b) Inapplicability to consumers.--The provisions of this
9 section shall not apply to any electronic transaction to which a
10 consumer is a party.
11 CHAPTER 7
12 GOVERNMENTAL AGENCIES
13 Section 701. Creation and retention of electronic records and
14 conversion of written records.
15 Each governmental agency of this Commonwealth shall determine
16 whether, and the extent to which, it will create and retain
17 electronic records and convert written records to electronic
18 records. Executive agencies shall also comply with standards
19 published by the Office of Administration.
20 Section 702. Acceptance and distribution of electronic records.
21 (a) Option.--Each governmental agency of this Commonwealth
22 shall determine whether, and the extent to which, it will send
23 and accept electronic records and electronic signatures to and
24 from other persons and otherwise create, generate, communicate,
25 store, process, use and rely upon electronic records and
26 electronic signatures.
27 (b) Specifics.--To the extent that a governmental agency
28 uses electronic records and electronic signatures under
29 subsection (a), the governmental agency, giving due
30 consideration to security, may specify all of the following:
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1 (1) The manner and format in which the electronic
2 records must be created, generated, sent, communicated,
3 received and stored and the systems established for those
4 purposes.
5 (2) If electronic records must be signed by electronic
6 means, the type of electronic signature required, the manner
7 and format in which the electronic signature must be affixed
8 to the electronic record, and the identity of or criteria
9 that must be met by any third party used by a person filing a
10 document to facilitate the process.
11 (3) Control processes and procedures as appropriate to
12 ensure adequate preservation, disposition, integrity,
13 security, confidentiality and auditability of electronic
14 records.
15 (4) Any other required attributes for electronic records
16 which are specified for corresponding nonelectronic records
17 or reasonably necessary under the circumstances.
18 (c) Not mandatory.--This chapter does not require a
19 governmental agency of this Commonwealth to use or permit the
20 use of electronic records or electronic signatures.
21 Section 703. Interoperability.
22 The standards published by the Office of Administration under
23 section 701 should encourage and promote consistency and
24 interoperability with similar requirements adopted by other
25 governmental agencies of this and other states and the Federal
26 Government and nongovernmental persons interacting with
27 governmental agencies of this Commonwealth. If appropriate,
28 those standards may specify differing levels of standards from
29 which governmental agencies of this Commonwealth may choose in
30 implementing the most appropriate standard for a particular
19990S0555B1487 - 24 -
1 application.
2 SECTION 703. COMMERCIAL REASONABLENESS. <--
3 THE EFFICACY AND COMMERCIAL REASONABLENESS OF A SECURITY
4 PROCEDURE IS TO BE DETERMINED BY THE COURT. IN MAKING THIS
5 DETERMINATION, THE FOLLOWING RULES APPLY:
6 (1) A SECURITY PROCEDURE ESTABLISHED BY STATUTE OR
7 REGULATION IS EFFECTIVE FOR TRANSACTIONS COVERED BY THE
8 STATUTE OR REGULATION.
9 (2) EXCEPT AS OTHERWISE PROVIDED IN PARAGRAPH (1),
10 COMMERCIAL REASONABLENESS AND EFFECTIVENESS IS DETERMINED IN
11 LIGHT OF THE PURPOSES OF THE SECURITY PROCEDURE AND THE
12 COMMERCIAL CIRCUMSTANCES AT THE TIME THE PARTIES AGREE TO OR
13 ADOPT THE PROCEDURE.
14 SECTION 704. INAPPLICABILITY TO CONSUMERS.
15 THE PROVISIONS OF THIS CHAPTER SHALL NOT APPLY TO ANY
16 ELECTRONIC TRANSACTION TO WHICH A CONSUMER IS A PARTY.
17 SECTION 705. VARIATION BY AGREEMENT.
18 EXCEPT AS OTHERWISE PROVIDED BY STATUTE OR REGULATION, ANY
19 PROVISION OF THIS CHAPTER OTHER THAN SECTION 704 MAY BE VARIED
20 BY AGREEMENT.
21 CHAPTER 51
22 MISCELLANEOUS PROVISIONS
23 Section 5101. Effective date.
24 This act shall take effect in 30 days.
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