HOUSE AMENDED
PRIOR PRINTER'S NOS. 741, 1182, 1404, PRINTER'S NO. 1511
1443, 1487
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 AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES,
NOVEMBER 16, 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 SECTION 504. LEGISLATIVE BUDGET AND FINANCE COMMITTEE <--
4 STUDY.
5 CHAPTER 7. ATTRIBUTION OF RECORDS AND SIGNATURES
6 SECTION 701. USE OF SECURITY PROCEDURES.
7 SECTION 702. EFFECT OF USING SECURITY PROCEDURE TO DETECT
8 ERRORS OR CHANGES.
9 SECTION 703. COMMERCIAL REASONABLENESS.
10 SECTION 704. INAPPLICABILITY TO CONSUMERS.
11 SECTION 705. VARIATION BY AGREEMENT.
12 Chapter 51. Miscellaneous Provisions <--
13 Section 5101. Effective date.
14 CHAPTER 9. CONSUMER AGREEMENTS <--
15 SECTION 901. LIMITATION ON CONSUMER AGREEMENTS.
16 SECTION 902. SENDING AND RECEIPT.
17 SECTION 903. VARIATION BY AGREEMENT.
18 CHAPTER 51. MISCELLANEOUS PROVISIONS
19 SECTION 5101. APPLICABILITY.
20 SECTION 5102. EFFECTIVE DATE.
21 The General Assembly of the Commonwealth of Pennsylvania
22 hereby enacts as follows:
23 CHAPTER 1
24 PRELIMINARY PROVISIONS
25 Section 101. Short title.
26 (A) GENERAL.--This act shall be known and may be cited as <--
27 the Uniform Electronic Transactions Act. <--
28 (B) UNIFORM.--CHAPTERS 1, 3 AND 5 SHALL BE KNOWN AND MAY BE <--
29 CITED AS THE UNIFORM ELECTRONIC TRANSACTIONS ACT.
30 Section 102. Legislative findings.
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1 The General Assembly finds and declares as follows:
2 (1) electronic commerce is expanding rapidly and is an
3 engine for economic growth in this Commonwealth and the
4 United States; and
5 (2) uniformity among state laws recognizing the validity
6 and enforceability of electronic signatures, records and
7 writings is important to the continued expansion of
8 electronic commerce; AND <--
9 (3) THE RIGHTS OF CONSUMERS UNDER EXISTING LAWS SHOULD
10 BE PROTECTED AND PRESERVED.
11 The General Assembly should enact the Uniform Electronic
12 Transactions Act submitted to the state legislatures by the
13 National Conference of Commissioners of Uniform State Laws with
14 additions to enhance and promote the reliability of electronic
15 commerce.
16 Section 103. Definitions.
17 The following words and phrases when used in this act shall
18 have the meanings given to them in this section unless the
19 context clearly indicates otherwise:
20 "Agreement." The bargain of the parties in fact, as found in
21 their language or inferred from other circumstances and from
22 rules, regulations and procedures given the effect of agreements
23 under laws otherwise applicable to a particular transaction.
24 "Automated transaction." A transaction conducted or
25 performed, in whole or in part, by electronic means or
26 electronic records, in which the acts or records of one or both
27 parties are not reviewed by an individual in the ordinary course
28 in forming a contract, performing under an existing contract or
29 fulfilling an obligation required by the transaction.
30 "Computer program." A set of statements or instructions to
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1 be used directly or indirectly in an information processing
2 system in order to bring about a certain result.
3 "Consumer." An individual involved in an electronic
4 transaction primarily for personal, family or household
5 purposes.
6 "Contract." The total legal obligation resulting from the
7 parties' agreement as affected by this act and other applicable
8 law.
9 "Electronic." Relating to technology having electrical,
10 digital, magnetic, wireless, optical, electromagnetic or similar
11 capabilities.
12 "Electronic agent." A computer program or an electronic or
13 other automated means used independently to initiate an action
14 or respond to electronic records or performances, in whole or in
15 part, without review or action by an individual.
16 "Electronic record." A record created, generated, sent,
17 communicated, received or stored by electronic means.
18 "Electronic signature." An electronic sound, symbol or
19 process attached to or logically associated with a record and
20 executed or adopted by a person with the intent to sign the
21 record.
22 "Executive agency." A department, board, commission,
23 authority, officer or agency, of the Executive Department,
24 subject to the policy, supervision and control of the Governor.
25 "Governmental agency." An executive agency, an independent
26 agency, a State-affiliated entity or other instrumentality of
27 the Commonwealth. The term includes authorities, political
28 subdivisions and State-related institutions.
29 "Independent agency." A board, commission or other agency or
30 officer of the Executive Department, that is not subject to the
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1 policy supervision and control of the Governor.
2 "Information." Data, text, images, sounds, codes, computer
3 programs, software, data bases or the like.
4 "Information processing system." An electronic system for
5 creating, generating, sending, receiving, storing, displaying or
6 processing information.
7 "Person." Any individual, corporation, business trust,
8 estate, trust, partnership, limited liability company,
9 association, joint venture, governmental agency, public
10 corporation or other legal or commercial entity.
11 "Record." Information which is inscribed on a tangible
12 medium or is stored in an electronic or other medium and which
13 is retrievable in perceivable form.
14 "Security procedure." A procedure employed for the purpose
15 of verifying that an electronic signature, record or performance
16 is that of a specific person or for detecting changes or errors
17 in the information in an electronic record. The term includes a
18 procedure which requires the use of algorithms or other codes,
19 identifying words or numbers, encryption or callback or other
20 acknowledgment procedures.
21 "State." A state of the United States, the District of
22 Columbia, Puerto Rico, the United States Virgin Islands or any
23 territory or insular possession subject to the jurisdiction of
24 the United States. The term includes an Indian Tribe or Band or
25 an Alaskan Native Village, which is recognized by Federal law or
26 formally acknowledged by a state.
27 "State-affiliated entity or other instrumentality." A
28 Commonwealth authority or a Commonwealth entity or
29 instrumentality. The term includes the Pennsylvania Turnpike
30 Commission, the Pennsylvania Housing Finance Agency, the
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1 Pennsylvania Municipal Retirement System, the Pennsylvania
2 Infrastructure Investment Authority, the State Public School
3 Building Authority, the Pennsylvania Higher Educational
4 Facilities Authority and the State System of Higher Education.
5 "State-related institution." The Pennsylvania State
6 University, the University of Pittsburgh, Lincoln University or
7 Temple University.
8 "Transaction." An action or set of actions occurring between
9 two or more persons relating to the conduct of business,
10 commercial or governmental affairs.
11 Section 104. Scope.
12 (a) General rule.--Except as provided in subsection (b),
13 this act applies to electronic records and electronic signatures
14 relating to a transaction.
15 (b) Exception.--Subject to subsection (c), this act does not
16 apply to a transaction to the extent it is governed by any of
17 the following:
18 (1) A law governing the creation and execution of wills,
19 codicils or testamentary trusts.
20 (2) The provisions of 13 Pa.C.S. (relating to Commercial <--
21 Code COMMERCIAL CODE) other than: <--
22 (i) §§ SECTIONS 1107 (relating to waiver or <--
23 renunciation of claim or right after breach) and 1206
24 (relating to statute of frauds for kinds of personal
25 property not otherwise covered);
26 (ii) Division 2 (relating to sales); and
27 (iii) Division 2A (relating to leases).
28 (c) Limitation of exception.--This act applies to an
29 electronic record or electronic signature otherwise excluded
30 from the application of this act under subsection (b) to the
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1 extent it is governed by a law other than those specified in
2 subsection (b).
3 (d) Other law.--A transaction subject to this act is also
4 subject to other applicable substantive law.
5 Section 105. Prospective application.
6 This act applies to an electronic record or electronic
7 signature created, generated, sent, communicated, received or
8 stored on or after the effective date of this act.
9 CHAPTER 3
10 UNIFORM ELECTRONIC TRANSACTIONS
11 Section 301. Use of electronic records and electronic
12 signatures; variation by agreement.
13 (a) Electronic means or form not required.--This act does
14 not require a record or signature to be created, generated,
15 sent, communicated, received, stored or otherwise processed or
16 used by electronic means or in electronic form.
17 (b) Consent.--This act applies only to transactions between
18 parties each of which has agreed to conduct transactions by
19 electronic means. Whether the parties agree to conduct a
20 transaction by electronic means is determined from the context
21 and surrounding circumstances, including the parties' conduct.
22 (c) Other transactions.--A party that agrees to conduct a
23 transaction by electronic means may refuse to conduct other
24 transactions by electronic means. The right granted by this
25 subsection may not be waived by agreement.
26 (d) Variance VARIATION by agreement.--Except as otherwise <--
27 provided in this act, the effect of any of its provisions may be
28 varied by agreement. The presence in certain provisions of this
29 act of the words "unless otherwise agreed," or words of similar
30 import, does not imply that the effect of other provisions may
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1 not be varied by agreement.
2 (e) Conclusions of law.--Whether an electronic record or
3 electronic signature has legal consequences is determined by
4 this act and other applicable law.
5 Section 302. Construction and application.
6 This act must be construed and applied:
7 (1) to facilitate electronic transactions consistent
8 with other applicable law;
9 (2) to be consistent with reasonable practices
10 concerning electronic transactions and with the continued
11 expansion of those practices; and
12 (3) to effectuate its general purpose to make uniform
13 the law with respect to the subject of this act among states
14 enacting it.
15 Section 303. Legal recognition of electronic records,
16 electronic signatures and electronic contracts.
17 (a) Form.--A record or signature may not be denied legal
18 effect or enforceability solely because it is in electronic
19 form.
20 (b) Formation.--A contract may not be denied legal effect or
21 enforceability solely because an electronic record was used in
22 its formation.
23 (c) Writing.--If a law requires a record to be in writing,
24 an electronic record satisfies the law.
25 (d) Signature.--If a law requires a signature, an electronic
26 signature satisfies the law.
27 Section 304. Provision of information in writing; presentation
28 of records.
29 (a) Writing.--If parties have agreed to conduct a
30 transaction by electronic means and a law requires a person to
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1 provide, send or deliver information in writing to another
2 person, the requirement is satisfied if the information is
3 provided, sent or delivered, as the case may be, in an
4 electronic record capable of retention by the recipient at the
5 time of receipt. An electronic record is not capable of
6 retention by the recipient if the sender or its information
7 processing system inhibits the ability of the recipient to print
8 or store the electronic record.
9 (b) Records.--If a law other than this act requires a record
10 to be posted or displayed in a certain manner, to be sent,
11 communicated or transmitted by a specified method or to contain
12 information which is formatted in a certain manner, the
13 following rules apply:
14 (1) The record must be posted or displayed in the manner
15 specified in the other law.
16 (2) Except as otherwise provided in subsection (d)(2),
17 the record must be sent, communicated or transmitted by the
18 method specified in the other law.
19 (3) The record must contain the information formatted in
20 the manner specified in the other law.
21 (c) Unenforceable.--If a sender inhibits the ability of a
22 recipient to store or print an electronic record, the electronic
23 record is not enforceable against the recipient.
24 (d) Variance VARIATION by agreement.--The requirements of <--
25 this section may not be varied by agreement except as follows:
26 (1) To the extent a law other than this act requires
27 information to be provided, sent or delivered, in writing,
28 but permits that requirement to be varied by agreement, the
29 requirement under subsection (a) that the information be in
30 the form of an electronic record capable of retention may
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1 also be varied by agreement.
2 (2) A requirement under a law other than this act to
3 send, communicate or transmit a record by first-class mail,
4 postage prepaid, regular United States mail, may be varied by
5 agreement to the extent permitted by the other law.
6 SECTION 305. ATTRIBUTION AND EFFECT OF ELECTRONIC RECORDS AND <--
7 SIGNATURES.
8 (A) ATTRIBUTION.--AN ELECTRONIC RECORD OR ELECTRONIC
9 SIGNATURE IS ATTRIBUTABLE TO A PERSON IF IT WAS THE ACT OF THE
10 PERSON. THE ACT OF THE PERSON MAY BE SHOWN IN ANY MANNER,
11 INCLUDING A SHOWING OF THE EFFICACY OF ANY SECURITY PROCEDURE
12 APPLIED TO DETERMINE THE PERSON TO WHICH THE ELECTRONIC RECORD
13 OR ELECTRONIC SIGNATURE WAS ATTRIBUTABLE.
14 (B) EFFECT.--THE EFFECT OF AN ELECTRONIC RECORD OR
15 ELECTRONIC SIGNATURE ATTRIBUTED TO A PERSON UNDER SUBSECTION (A)
16 IS DETERMINED:
17 (1) FROM THE CONTEXT AND SURROUNDING CIRCUMSTANCES AT
18 THE TIME OF ITS CREATION, EXECUTION OR ADOPTION, INCLUDING
19 THE PARTIES' AGREEMENT, IF ANY; AND
20 (2) OTHERWISE AS PROVIDED BY LAW.
21 Section 305 306. Effect of change or error. <--
22 If a change or error in an electronic record occurs in a
23 transmission between parties to a transaction, the following
24 rules apply:
25 (1) If the parties have agreed to use a security
26 procedure to detect changes or errors and one party has
27 conformed to the procedure, but the other party has not, and
28 the nonconforming party would have detected the change or
29 error had that party also conformed, the conforming party may
30 avoid the effect of the changed or erroneous electronic
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1 record.
2 (2) In an automated transaction involving an individual,
3 the individual may avoid the effect of an electronic record
4 that resulted from an error made by the individual in dealing
5 with the electronic agent of another person if the electronic
6 agent did not provide an opportunity for the prevention or
7 correction of the error and, at the time the individual
8 learns of the error, the individual:
9 (i) promptly notifies the other person of the error
10 and that the individual did not intend to be bound by the
11 electronic record received by the other person;
12 (ii) takes reasonable steps, including steps which
13 conform to the other person's reasonable instructions, to
14 return to the other person or, if instructed by the other
15 person, to destroy the consideration received, if any, as
16 a result of the erroneous electronic record; and
17 (iii) has not used or received any benefit or value
18 from the consideration, if any, received from the other
19 person.
20 (3) If neither paragraph (1) nor paragraph (2) applies,
21 the change or error has the effect provided by other law,
22 including the law of mistake, and the parties' contract, if
23 any.
24 (4) Paragraphs (2) and (3) may not be varied by
25 agreement.
26 Section 306 307. Notarization and acknowledgment. <--
27 If a law requires a signature or record to be notarized,
28 acknowledged, verified or made under oath, the requirement is
29 satisfied if the electronic signature of the person authorized
30 to perform those services, together with all other information
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1 required to be included by other applicable law, is attached to
2 or logically associated with the signature or record.
3 Section 307 308. Retention of electronic records; originals. <--
4 (a) Requirement.--Subject to subsection (b), if a law
5 requires that a record be retained, the requirement is satisfied
6 by retaining an electronic record of the information in the
7 record which:
8 (1) accurately reflects the information set forth in the
9 record after it was first generated in its final form as an
10 electronic record or otherwise; and
11 (2) remains accessible for later reference.
12 (b) Transmission information.--A requirement to retain a
13 record in accordance with subsection (a) does not apply to any
14 information the sole purpose of which is to enable the record to
15 be sent, communicated or received.
16 (c) Agents.--A person may satisfy subsection (a) by using
17 the services of another person if the requirements of that
18 subsection are satisfied.
19 (d) Originals.--If a law requires a record to be presented
20 or retained in its original form, or provides consequences if
21 the record is not presented or retained in its original form,
22 that law is satisfied by an electronic record retained in
23 accordance with subsection (a).
24 (e) Checks.--If a law requires retention of a check, that
25 requirement is satisfied by retention of an electronic record of
26 the information on the front and back of the check in accordance
27 with subsection (a).
28 (f) Evidence; audits.--A record retained as an electronic
29 record in accordance with subsection (a) satisfies a law
30 requiring a person to retain a record for evidentiary, audit or
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1 like purposes unless a statute enacted after the effective date <--
2 of this act specifically prohibits the use of an electronic
3 record for the specified purpose.
4 (g) Governmental agencies.--This section does not preclude a
5 governmental agency of this Commonwealth from specifying
6 additional requirements for the retention of a record subject to
7 the governmental agency's jurisdiction, including the
8 requirement that a record be retained in a nonelectronic form.
9 Section 308 309. Admissibility in evidence. <--
10 In a proceeding, evidence of a record or signature may not be
11 excluded solely because it is in electronic form.
12 Section 309 310. Automated transaction. <--
13 In an automated transaction, the following rules apply:
14 (1) A contract may be formed by the interaction of
15 electronic agents of the parties, even if no individual was
16 aware of or reviewed the electronic agents' actions or the
17 resulting terms and agreements.
18 (2) A contract may be formed by the interaction of an
19 electronic agent and an individual, acting on the
20 individual's own behalf or for another person, including by
21 an interaction in which the individual performs actions which
22 the individual is free to refuse to perform and which the
23 individual knows or has reason to know will cause the
24 electronic agent to complete the transaction or performance.
25 (3) The terms of the contract are determined by the
26 substantive law applicable to it.
27 Section 310 311. Time and place of sending and receipt. <--
28 (a) Sending.--Unless otherwise agreed between the sender and
29 the recipient, an electronic record is sent when it:
30 (1) is addressed properly or otherwise directed properly
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1 to an information processing system that the recipient has
2 designated or uses for the purpose of receiving electronic
3 records or information of the type sent and from which the
4 recipient is able to retrieve the electronic record;
5 (2) is in a form capable of being processed by that
6 system; and
7 (3) enters an information processing system outside the
8 control of the sender or of a person that sent the electronic
9 record on behalf of the sender or enters a region of the
10 information processing system designated or used by the
11 recipient which is under the control of the recipient.
12 (b) Receipt.--Unless otherwise agreed between a sender and
13 the recipient, an electronic record is received when:
14 (1) it enters an information processing system that the
15 recipient has designated or uses for the purpose of receiving
16 electronic records or information of the type sent and from
17 which the recipient is able to retrieve the electronic
18 record; and
19 (2) it is in a form capable of being processed by that
20 system.
21 (c) Physical location.--Subsection (b) applies even if the
22 place the information processing system is located is different
23 from the place the electronic record is deemed to be received
24 under subsection (d).
25 (d) Place of business.--Unless otherwise expressly provided
26 in the electronic record or agreed between the sender and the
27 recipient, an electronic record is deemed to be sent from the
28 sender's place of business and to be received at the recipient's
29 place of business. For purposes of this subsection, the
30 following rules apply:
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1 (1) If the sender or recipient has more than one place
2 of business, the place of business of that person is the
3 place having the closest relationship to the underlying
4 transaction.
5 (2) If the sender or the recipient does not have a place
6 of business, the place of business is the sender's or
7 recipient's residence, as the case may be.
8 (e) Actual receipt.--An electronic record is received under
9 subsection (b) even if no individual is aware of its receipt.
10 (f) Contents.--Receipt of an electronic acknowledgment from
11 an information processing system described in subsection (b)
12 establishes that a record was received but by itself does not
13 establish that the content sent corresponds to the content
14 received.
15 (g) Legal effect.--If a person is aware that an electronic
16 record purportedly sent under subsection (a), or purportedly
17 received under subsection (b), was not actually sent or
18 received, the legal effect of the sending or receipt is
19 determined by other applicable law. Except to the extent
20 permitted by the other law, the requirements of this subsection
21 may not be varied by agreement.
22 Section 311 312. Transferable records. <--
23 (a) Control.--A person has control of a transferable record
24 if a system employed for evidencing the transfer of interests in
25 the transferable record reliably establishes that person as the
26 person to which the transferable record was issued or
27 transferred.
28 (b) Compliance.--A system satisfies subsection (a), and a
29 person is deemed to have control of a transferable record, if
30 the transferable record is created, stored and assigned in such
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1 a manner that all of the following paragraphs apply:
2 (1) A single authoritative copy of the transferable
3 record exists which is unique, identifiable and, except as
4 otherwise provided in paragraphs (4), (5) and (6),
5 unalterable.
6 (2) The authoritative copy identifies the person
7 asserting control as:
8 (i) the person to which the transferable record was
9 issued; or
10 (ii) if the authoritative copy indicates that the
11 transferable record has been transferred, the person to
12 which the transferable record was most recently
13 transferred.
14 (3) The authoritative copy is communicated to and
15 maintained by the person asserting control or that person's
16 designated custodian.
17 (4) Copies or revisions which add or change an
18 identified assignee of the authoritative copy can be made
19 only with the consent of the person asserting control.
20 (5) Each copy of the authoritative copy and any copy of
21 a copy is readily identifiable as a copy which is not the
22 authoritative copy.
23 (6) Any revision of the authoritative copy is readily
24 identifiable as authorized or unauthorized.
25 (c) Holders.--Except as otherwise agreed, a person having
26 control of a transferable record is the holder, as defined in
27 paragraph (2) of the definition of "holder" in 13 Pa.C.S. § 1201
28 (relating to general definitions), of the transferable record
29 and has the same rights and defenses as a holder of an
30 equivalent record or writing under 13 Pa.C.S. (relating to
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1 Commercial Code COMMERCIAL CODE), including, if the applicable <--
2 statutory requirements are satisfied, §§ SECTIONS 3302(a) <--
3 (relating to holder in due course), 7501 (relating to form of
4 negotiation and requirements of "due negotiation") and 9308
5 (relating to purchase of chattel paper and instruments).
6 Delivery, possession and endorsement are not required to obtain
7 or exercise any of the rights under this subsection.
8 (d) Obligors.--Except as otherwise agreed, an obligor under
9 a transferable record has the same rights and defenses as an
10 equivalent obligor under equivalent records or writings under 13
11 Pa.C.S (relating to Commercial Code COMMERCIAL CODE). <--
12 (e) Proof.--If requested by a person against which
13 enforcement is sought, the person seeking to enforce the
14 transferable record shall provide reasonable proof that the
15 person is in control of the transferable record. Proof may
16 include access to the authoritative copy of the transferable
17 record and related business records sufficient to review the
18 terms of the transferable record and to establish the identity
19 of the person having control of the transferable record.
20 (f) Definition.--As used in this section, the term
21 "transferable record" means an electronic record:
22 (1) which would be a note under 13 Pa.C.S. Div. 3
23 (relating to negotiable instruments) or a document under 13
24 Pa.C.S. Div. 7 (relating to warehouse receipts, bills of
25 lading and other documents of title) if the electronic record
26 were in writing; and
27 (2) the issuer of the electronic record expressly has
28 agreed is a transferable record.
29 CHAPTER 5 <--
30 CHAPTER 5 <--
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1 GOVERNMENTAL AGENCIES
2 SECTION 501. CREATION AND RETENTION OF ELECTRONIC RECORDS AND
3 CONVERSION OF WRITTEN RECORDS.
4 EACH GOVERNMENTAL AGENCY OF THIS COMMONWEALTH SHALL DETERMINE
5 WHETHER, AND THE EXTENT TO WHICH, IT WILL CREATE AND RETAIN
6 ELECTRONIC RECORDS AND CONVERT WRITTEN RECORDS TO ELECTRONIC
7 RECORDS. EXECUTIVE AGENCIES SHALL ALSO COMPLY WITH STANDARDS
8 PUBLISHED BY THE OFFICE OF ADMINISTRATION.
9 SECTION 502. ACCEPTANCE AND DISTRIBUTION OF ELECTRONIC RECORDS.
10 (A) OPTION.--EACH GOVERNMENTAL AGENCY OF THIS COMMONWEALTH
11 SHALL DETERMINE WHETHER, AND THE EXTENT TO WHICH, IT WILL SEND
12 AND ACCEPT ELECTRONIC RECORDS AND ELECTRONIC SIGNATURES TO AND
13 FROM OTHER PERSONS AND OTHERWISE CREATE, GENERATE, COMMUNICATE,
14 STORE, PROCESS, USE AND RELY UPON ELECTRONIC RECORDS AND
15 ELECTRONIC SIGNATURES.
16 (B) SPECIFICS.--TO THE EXTENT THAT A GOVERNMENTAL AGENCY
17 USES ELECTRONIC RECORDS AND ELECTRONIC SIGNATURES UNDER
18 SUBSECTION (A), THE GOVERNMENTAL AGENCY, GIVING DUE
19 CONSIDERATION TO SECURITY, MAY SPECIFY ALL OF THE FOLLOWING:
20 (1) THE MANNER AND FORMAT IN WHICH THE ELECTRONIC
21 RECORDS MUST BE CREATED, GENERATED, SENT, COMMUNICATED,
22 RECEIVED AND STORED AND THE SYSTEMS ESTABLISHED FOR THOSE
23 PURPOSES.
24 (2) IF ELECTRONIC RECORDS MUST BE SIGNED BY ELECTRONIC
25 MEANS, THE TYPE OF ELECTRONIC SIGNATURE REQUIRED, THE MANNER
26 AND FORMAT IN WHICH THE ELECTRONIC SIGNATURE MUST BE AFFIXED
27 TO THE ELECTRONIC RECORD, AND THE IDENTITY OF OR CRITERIA
28 THAT MUST BE MET BY ANY THIRD PARTY USED BY A PERSON FILING A
29 DOCUMENT TO FACILITATE THE PROCESS.
30 (3) CONTROL PROCESSES AND PROCEDURES AS APPROPRIATE TO
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1 ENSURE ADEQUATE PRESERVATION, DISPOSITION, INTEGRITY,
2 SECURITY, CONFIDENTIALITY AND AUDITABILITY OF ELECTRONIC
3 RECORDS.
4 (4) ANY OTHER REQUIRED ATTRIBUTES FOR ELECTRONIC RECORDS
5 WHICH ARE SPECIFIED FOR CORRESPONDING NONELECTRONIC RECORDS
6 OR REASONABLY NECESSARY UNDER THE CIRCUMSTANCES.
7 (C) NOT MANDATORY.--THIS CHAPTER DOES NOT REQUIRE A
8 GOVERNMENTAL AGENCY TO USE OR PERMIT THE USE OF ELECTRONIC
9 RECORDS OR ELECTRONIC SIGNATURES.
10 SECTION 503. INTEROPERABILITY.
11 THE STANDARDS PUBLISHED BY THE OFFICE OF ADMINISTRATION UNDER
12 SECTION 501 SHOULD ENCOURAGE AND PROMOTE CONSISTENCY AND
13 INTEROPERABILITY WITH SIMILAR REQUIREMENTS ADOPTED BY OTHER
14 GOVERNMENTAL AGENCIES OF THIS AND OTHER STATES AND THE FEDERAL
15 GOVERNMENT AND NONGOVERNMENTAL PERSONS INTERACTING WITH A
16 GOVERNMENTAL AGENCY. IF APPROPRIATE, THOSE STANDARDS MAY SPECIFY
17 DIFFERING LEVELS OF STANDARDS FROM WHICH A GOVERNMENTAL AGENCY
18 MAY CHOOSE IN IMPLEMENTING THE MOST APPROPRIATE STANDARD FOR A
19 PARTICULAR APPLICATION.
20 SECTION 504. LEGISLATIVE BUDGET AND FINANCE COMMITTEE STUDY. <--
21 THE LEGISLATIVE BUDGET AND FINANCE COMMITTEE IS DIRECTED TO
22 STUDY THE FEASIBILITY OF ELECTRONIC BIDDING, INCLUDING THE USE
23 OF INTERNET AUCTION PROCEDURES, FOR BONDS ISSUED BY THE
24 COMMONWEALTH, ITS AGENCIES, AUTHORITIES AND COMMISSIONS. THE
25 STUDY, TOGETHER WITH ANY RECOMMENDATIONS, SHALL BE COMPLETED
26 WITHIN SIX MONTHS OF THE EFFECTIVE DATE OF THIS ACT AND SHALL BE
27 FORWARDED TO THE DEPARTMENT OF GENERAL SERVICES AND EACH MEMBER
28 OF THE GENERAL ASSEMBLY FOR REVIEW.
29 CHAPTER 7
30 ATTRIBUTION OF RECORDS AND SIGNATURES
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1 Section 501. Attribution of electronic records and signatures. <--
2 An electronic record or electronic signature is attributed to
3 a person if it was the act of that person or its electronic
4 agent, or if the person is otherwise bound by it under the law
5 of agency, the provisions of section 502 (relating to secure
6 electronic records and signatures) or other law. The party
7 relying on attribution of an electronic transaction to another
8 person has the burden of establishing attribution.
9 Section 502 701. Use of security procedures. <--
10 (a) Security procedure.--If there is a security procedure <--
11 between the parties with respect to the electronic transaction <--
12 SIGNATURE OR ELECTRONIC RECORD, the following rules apply: <--
13 (1) The effect of compliance with a security procedure
14 established by a law or regulation is determined by that law
15 or regulation.
16 (2) In all other cases, if the parties agree to use or
17 otherwise knowingly adopt a security procedure to verify the
18 person from which an electronic SIGNATURE OR ELECTRONIC <--
19 record has been sent, the ELECTRONIC SIGNATURE OR ELECTRONIC <--
20 record is attributable to the person identified by the
21 security procedure if the person relying on the attribution
22 establishes SATISFIES THE BURDEN OF ESTABLISHING that: <--
23 (i) the security procedure was commercially
24 reasonable;
25 (ii) the party accepted or relied on the electronic
26 message in good faith and in compliance with the security
27 procedure and any additional agreement with or separate
28 instructions of the other party; and
29 (iii) the security procedure indicated that the
30 electronic message was from the person to which
19990S0555B1511 - 21 -
1 attribution is sought.
2 (3) If the electronic message is not binding on a person <--
3 under section 501 but is otherwise binding under paragraph
4 (2), the person is nevertheless not bound under paragraph (2)
5 for the electronic message SIGNATURE OR ELECTRONIC RECORD IS <--
6 NOT ATTRIBUTABLE TO A PERSON UNDER SECTION 305 BUT WOULD BE
7 ATTRIBUTABLE TO THE PERSON UNDER THIS SECTION, THE ELECTRONIC
8 SIGNATURE OR ELECTRONIC RECORD IS NEVERTHELESS NOT
9 ATTRIBUTABLE TO THE PERSON UNDER THIS SECTION if the person
10 satisfies the burden of establishing that the electronic
11 message SIGNATURE OR ELECTRONIC RECORD was caused directly or <--
12 indirectly by a person:
13 (i) that was not entrusted at any time with the
14 right or duty to act for the person with respect to such
15 electronic messages SIGNATURE OR ELECTRONIC RECORD or <--
16 security procedure;
17 (ii) that lawfully obtained access to transmitting
18 facilities of the person if such access facilitated the
19 misuse of the security procedure; or
20 (iii) that obtained, from a source controlled by the
21 person, information facilitating misuse of the security
22 procedure.
23 (b) Commercial reasonableness.--The efficacy and commercial <--
24 reasonableness of a security procedure is to be determined by
25 the court, taking into consideration the purposes of the
26 security procedure and the circumstances at the time the parties
27 adopted the procedure. A security procedure established by law
28 or regulation is commercially reasonable for transactions
29 governed by the law or regulation.
30 (c) Inapplicability to consumers.--The provisions of this
19990S0555B1511 - 22 -
1 section shall not apply to any electronic transaction to which a
2 consumer is a party.
3 Section 503 702. Effect of using security procedure to detect <--
4 errors or changes.
5 (a) General rule.--If the parties use a commercially <--
6 reasonable security procedure to detect errors or changes in <--
7 WITH RESPECT TO an electronic transaction SIGNATURE OR <--
8 ELECTRONIC RECORD, the following rules shall apply:
9 (1) The effect of a security procedure is determined by
10 the agreement BETWEEN THE PARTIES or, in the absence of <--
11 agreement, by this section or any law establishing the
12 security procedure.
13 (2) Unless the circumstances indicate otherwise, if a
14 security procedure indicates that an electronic message <--
15 SIGNATURE OR ELECTRONIC RECORD has not been altered since a <--
16 particular time, it is treated as not having been altered
17 since that time.
18 (3) If a security procedure indicates that there is no <--
19 error in content, an electronic message is treated at the
20 time it was sent as having had the content intended by the
21 person creating or sending it pursuant to the security
22 procedure.
23 (4) The sender is not bound by a change or error if:
24 (i) the sender has conformed to a security procedure
25 but the other party has not; and
26 (ii) the nonconforming party would have detected the
27 change if the nonconforming party had also conformed.
28 (b) Inapplicability to consumers.--The provisions of this
29 section shall not apply to any electronic transaction to which a
30 consumer is a party.
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1 CHAPTER 7
2 GOVERNMENTAL AGENCIES
3 Section 701. Creation and retention of electronic records and
4 conversion of written records.
5 Each governmental agency of this Commonwealth shall determine
6 whether, and the extent to which, it will create and retain
7 electronic records and convert written records to electronic
8 records. Executive agencies shall also comply with standards
9 published by the Office of Administration.
10 Section 702. Acceptance and distribution of electronic records.
11 (a) Option.--Each governmental agency of this Commonwealth
12 shall determine whether, and the extent to which, it will send
13 and accept electronic records and electronic signatures to and
14 from other persons and otherwise create, generate, communicate,
15 store, process, use and rely upon electronic records and
16 electronic signatures.
17 (b) Specifics.--To the extent that a governmental agency
18 uses electronic records and electronic signatures under
19 subsection (a), the governmental agency, giving due
20 consideration to security, may specify all of the following:
21 (1) The manner and format in which the electronic
22 records must be created, generated, sent, communicated,
23 received and stored and the systems established for those
24 purposes.
25 (2) If electronic records must be signed by electronic
26 means, the type of electronic signature required, the manner
27 and format in which the electronic signature must be affixed
28 to the electronic record, and the identity of or criteria
29 that must be met by any third party used by a person filing a
30 document to facilitate the process.
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1 (3) Control processes and procedures as appropriate to
2 ensure adequate preservation, disposition, integrity,
3 security, confidentiality and auditability of electronic
4 records.
5 (4) Any other required attributes for electronic records
6 which are specified for corresponding nonelectronic records
7 or reasonably necessary under the circumstances.
8 (c) Not mandatory.--This chapter does not require a
9 governmental agency of this Commonwealth to use or permit the
10 use of electronic records or electronic signatures.
11 Section 703. Interoperability.
12 The standards published by the Office of Administration under
13 section 701 should encourage and promote consistency and
14 interoperability with similar requirements adopted by other
15 governmental agencies of this and other states and the Federal
16 Government and nongovernmental persons interacting with
17 governmental agencies of this Commonwealth. If appropriate,
18 those standards may specify differing levels of standards from
19 which governmental agencies of this Commonwealth may choose in
20 implementing the most appropriate standard for a particular
21 application.
22 SECTION 703. COMMERCIAL REASONABLENESS. <--
23 THE EFFICACY AND COMMERCIAL REASONABLENESS OF A SECURITY
24 PROCEDURE IS TO BE DETERMINED BY THE COURT. IN MAKING THIS
25 DETERMINATION, THE FOLLOWING RULES APPLY:
26 (1) A SECURITY PROCEDURE ESTABLISHED BY STATUTE OR
27 REGULATION IS EFFECTIVE FOR TRANSACTIONS COVERED BY THE
28 STATUTE OR REGULATION.
29 (2) EXCEPT AS OTHERWISE PROVIDED IN PARAGRAPH (1),
30 COMMERCIAL REASONABLENESS AND EFFECTIVENESS IS DETERMINED IN
19990S0555B1511 - 25 -
1 LIGHT OF THE PURPOSES OF THE SECURITY PROCEDURE AND THE
2 COMMERCIAL CIRCUMSTANCES AT THE TIME THE PARTIES AGREE TO OR
3 ADOPT THE PROCEDURE.
4 SECTION 704. INAPPLICABILITY TO CONSUMERS.
5 THE PROVISIONS OF THIS CHAPTER SHALL NOT APPLY TO ANY
6 ELECTRONIC TRANSACTION TO WHICH A CONSUMER IS A PARTY.
7 SECTION 705. VARIATION BY AGREEMENT.
8 EXCEPT AS OTHERWISE PROVIDED BY STATUTE OR REGULATION, ANY
9 PROVISION OF THIS CHAPTER OTHER THAN SECTION 704 MAY BE VARIED
10 BY AGREEMENT.
11 CHAPTER 9 <--
12 CONSUMER AGREEMENTS
13 SECTION 901. LIMITATION ON CONSUMER AGREEMENTS.
14 IN THE CASE OF A NONELECTRONIC CONSUMER CONTRACT OR
15 AGREEMENT, THE CONTRACT OR AGREEMENT MAY NOT CONTAIN A PROVISION
16 AUTHORIZING THE CONDUCTING OF THE TRANSACTION OR ANY PART
17 THEREOF BY ELECTRONIC MEANS UNLESS THE CONSUMER AGREES TO SUCH A
18 PROVISION BY A SEPARATE AND EXPRESS ACKNOWLEDGMENT. SUCH AN
19 AGREEMENT SHALL SPECIFICALLY INDICATE THE PARTS OF THE
20 TRANSACTION TO BE CONDUCTED BY ELECTRONIC MEANS, AND SHALL
21 INDICATE THE MANNER IN WHICH THE ELECTRONIC TRANSACTION OR A
22 PART THEREOF SHALL BE CONDUCTED. AN AGREEMENT TO CONDUCT A
23 CONSUMER TRANSACTION OR A PART THEREOF ELECTRONICALLY MAY NOT BE
24 INFERRED SOLELY FROM THE FACT THAT THE CONSUMER HAS USED
25 ELECTRONIC MEANS TO PAY AN ACCOUNT OR REGISTER A PURCHASE OR
26 WARRANTY.
27 SECTION 902. SENDING AND RECEIPT.
28 IF A PARTY TO A CONSUMER TRANSACTION HAS ACTUAL KNOWLEDGE
29 THAT AN ELECTRONIC RECORD PURPORTEDLY SENT TO OR PURPORTEDLY
30 RECEIVED BY THE OTHER PARTY WAS NOT ACTUALLY SENT TO OR RECEIVED
19990S0555B1511 - 26 -
1 BY THE OTHER PARTY, THE PURPORTED SENDING OR RECEIPT OF THE
2 ELECTRONIC RECORD SHALL BE OF NO LEGAL FORCE OR EFFECT.
3 SECTION 903. VARIATION BY AGREEMENT.
4 THE PROVISIONS OF THIS CHAPTER MAY NOT BE VARIED BY AGREEMENT
5 OF THE PARTIES TO A CONSUMER CONTRACT OR TRANSACTION.
6 CHAPTER 51
7 MISCELLANEOUS PROVISIONS
8 SECTION 5101. APPLICABILITY. <--
9 EXCEPT AS PROVIDED IN THE ACT OF AUGUST 21, 1953 (P.L.1323,
10 NO.373), KNOWN AS THE NOTARY PUBLIC LAW, OR ITS SUCCESSOR,
11 SECTION 307 SHALL NOT APPLY TO THE ACTIONS OF A NOTARY PURSUANT
12 TO THE NOTARY PUBLIC LAW OR ITS SUCCESSOR WITH REGARD TO
13 ELECTRONIC NOTARIZATION, ACKNOWLEDGMENT AND VERIFICATION.
14 Section 5101 5102. Effective date. <--
15 This act shall take effect in 30 days.
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