PRIOR PRINTER'S NOS. 741, 1182, 1404, PRINTER'S NO. 1555 1443, 1487, 1511
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
SENATE AMENDMENTS TO HOUSE AMENDMENTS, DECEMBER 7, 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 16 of records.
1 Section 305. Attribution and effect of electronic records and 2 signatures. 3 Section 306. Effect of change or error. 4 Section 307. Notarization and acknowledgment. 5 Section 308. Retention of electronic records; originals. 6 Section 309. Admissibility in evidence. 7 Section 310. Automated transaction. 8 Section 311. Time and place of sending and receipt. 9 Section 312. Transferable records. 10 Chapter 5. Governmental Agencies 11 Section 501. Creation and retention of electronic records and 12 conversion of written records. 13 Section 502. Acceptance and distribution of electronic records. 14 Section 503. Interoperability. 15 Section 504. Legislative Budget and Finance Committee <-- 16 study. 17 Chapter 7. Attribution of Records and Signatures 18 Section 701. Use of security procedures. 19 Section 702. Effect of using security procedure to detect 20 errors or changes. 21 Section 703. Commercial reasonableness. 22 Section 704. Inapplicability to consumers. 23 Section 705. Variation by agreement. 24 Chapter 9. Consumer Agreements 25 Section 901. Limitation on consumer agreements. 26 Section 902. Sending and receipt. 27 Section 903. Variation by agreement. 28 Chapter 51. Miscellaneous Provisions 29 Section 5101. Applicability. <-- 30 Section 5102 5101. Effective date. <-- 19990S0555B1555 - 2 -
1 The General Assembly of the Commonwealth of Pennsylvania 2 hereby enacts as follows: 3 CHAPTER 1 4 PRELIMINARY PROVISIONS 5 Section 101. Short title. 6 (a) General.--This act shall be known and may be cited as 7 the Electronic Transactions Act. 8 (b) Uniform.--Chapters 1, 3 and 5 shall be known and may be 9 cited as the Uniform Electronic Transactions Act. 10 Section 102. Legislative findings. 11 The General Assembly finds and declares as follows: 12 (1) electronic commerce is expanding rapidly and is an 13 engine for economic growth in this Commonwealth and the 14 United States; and 15 (2) uniformity among state laws recognizing the validity 16 and enforceability of electronic signatures, records and 17 writings is important to the continued expansion of 18 electronic commerce; and 19 (3) The rights of consumers under existing laws should 20 be protected and preserved. 21 The General Assembly should enact the Uniform Electronic 22 Transactions Act submitted to the state legislatures by the 23 National Conference of Commissioners of Uniform State Laws with 24 additions to enhance and promote the reliability of electronic 25 commerce. 26 Section 103. Definitions. 27 The following words and phrases when used in this act shall 28 have the meanings given to them in this section unless the 29 context clearly indicates otherwise: 30 "Agreement." The bargain of the parties in fact, as found in 19990S0555B1555 - 3 -
1 their language or inferred from other circumstances and from 2 rules, regulations and procedures given the effect of agreements 3 under laws otherwise applicable to a particular transaction. 4 "Automated transaction." A transaction conducted or 5 performed, in whole or in part, by electronic means or 6 electronic records, in which the acts or records of one or both 7 parties are not reviewed by an individual in the ordinary course 8 in forming a contract, performing under an existing contract or 9 fulfilling an obligation required by the transaction. 10 "Computer program." A set of statements or instructions to 11 be used directly or indirectly in an information processing 12 system in order to bring about a certain result. 13 "Consumer." An individual involved in an electronic 14 transaction primarily for personal, family or household 15 purposes. 16 "Contract." The total legal obligation resulting from the 17 parties' agreement as affected by this act and other applicable 18 law. 19 "Electronic." Relating to technology having electrical, 20 digital, magnetic, wireless, optical, electromagnetic or similar 21 capabilities. 22 "Electronic agent." A computer program or an electronic or 23 other automated means used independently to initiate an action 24 or respond to electronic records or performances, in whole or in 25 part, without review or action by an individual. 26 "Electronic record." A record created, generated, sent, 27 communicated, received or stored by electronic means. 28 "Electronic signature." An electronic sound, symbol or 29 process attached to or logically associated with a record and 30 executed or adopted by a person with the intent to sign the 19990S0555B1555 - 4 -
1 record. 2 "Executive agency." A department, board, commission, 3 authority, officer or agency, of the Executive Department, 4 subject to the policy, supervision and control of the Governor. 5 "Governmental agency." An executive agency, an independent 6 agency, a State-affiliated entity or other instrumentality of 7 the Commonwealth. The term includes authorities, political 8 subdivisions and State-related institutions. 9 "Independent agency." A board, commission or other agency or 10 officer of the Executive Department, that is not subject to the 11 policy supervision and control of the Governor. 12 "Information." Data, text, images, sounds, codes, computer 13 programs, software, data bases or the like. 14 "Information processing system." An electronic system for 15 creating, generating, sending, receiving, storing, displaying or 16 processing information. 17 "Person." Any individual, corporation, business trust, 18 estate, trust, partnership, limited liability company, 19 association, joint venture, governmental agency, public 20 corporation or other legal or commercial entity. 21 "Record." Information which is inscribed on a tangible 22 medium or is stored in an electronic or other medium and which 23 is retrievable in perceivable form. 24 "Security procedure." A procedure employed for the purpose 25 of verifying that an electronic signature, record or performance 26 is that of a specific person or for detecting changes or errors 27 in the information in an electronic record. The term includes a 28 procedure which requires the use of algorithms or other codes, 29 identifying words or numbers, encryption or callback or other 30 acknowledgment procedures. 19990S0555B1555 - 5 -
1 "State." A state of the United States, the District of 2 Columbia, Puerto Rico, the United States Virgin Islands or any 3 territory or insular possession subject to the jurisdiction of 4 the United States. The term includes an Indian Tribe or Band or 5 an Alaskan Native Village, which is recognized by Federal law or 6 formally acknowledged by a state. 7 "State-affiliated entity or other instrumentality." A 8 Commonwealth authority or a Commonwealth entity or 9 instrumentality. The term includes the Pennsylvania Turnpike 10 Commission, the Pennsylvania Housing Finance Agency, the 11 Pennsylvania Municipal Retirement System, the Pennsylvania 12 Infrastructure Investment Authority, the State Public School 13 Building Authority, the Pennsylvania Higher Educational 14 Facilities Authority and the State System of Higher Education. 15 "State-related institution." The Pennsylvania State 16 University, the University of Pittsburgh, Lincoln University or 17 Temple University. 18 "Transaction." An action or set of actions occurring between 19 two or more persons relating to the conduct of business, 20 commercial or governmental affairs. 21 Section 104. Scope. 22 (a) General rule.--Except as provided in subsection (b), 23 this act applies to electronic records and electronic signatures 24 relating to a transaction. 25 (b) Exception.--Subject to subsection (c), this act does not 26 apply to a transaction to the extent it is governed by any of 27 the following: 28 (1) A law governing the creation and execution of wills, 29 codicils or testamentary trusts. 30 (2) The provisions of 13 Pa.C.S. (relating to commercial 19990S0555B1555 - 6 -
1 code) other than: 2 (i) sections 1107 (relating to waiver or 3 renunciation of claim or right after breach) and 1206 4 (relating to statute of frauds for kinds of personal 5 property not otherwise covered); 6 (ii) Division 2 (relating to sales); and 7 (iii) Division 2A (relating to leases). 8 (c) Limitation of exception.--This act applies to an 9 electronic record or electronic signature otherwise excluded 10 from the application of this act under subsection (b) to the 11 extent it is governed by a law other than those specified in 12 subsection (b). 13 (d) Other law.--A transaction subject to this act is also 14 subject to other applicable substantive law. 15 Section 105. Prospective application. 16 This act applies to an electronic record or electronic 17 signature created, generated, sent, communicated, received or 18 stored on or after the effective date of this act. 19 CHAPTER 3 20 UNIFORM ELECTRONIC TRANSACTIONS 21 Section 301. Use of electronic records and electronic 22 signatures; variation by agreement. 23 (a) Electronic means or form not required.--This act does 24 not require a record or signature to be created, generated, 25 sent, communicated, received, stored or otherwise processed or 26 used by electronic means or in electronic form. 27 (b) Consent.--This act applies only to transactions between 28 parties each of which has agreed to conduct transactions by 29 electronic means. Whether the parties agree to conduct a 30 transaction by electronic means is determined from the context 19990S0555B1555 - 7 -
1 and surrounding circumstances, including the parties' conduct. 2 (c) Other transactions.--A party that agrees to conduct a 3 transaction by electronic means may refuse to conduct other 4 transactions by electronic means. The right granted by this 5 subsection may not be waived by agreement. 6 (d) Variation by agreement.--Except as otherwise provided in 7 this act, the effect of any of its provisions may be varied by 8 agreement. The presence in certain provisions of this act of the 9 words "unless otherwise agreed," or words of similar import, 10 does not imply that the effect of other provisions may not be 11 varied by agreement. 12 (e) Conclusions of law.--Whether an electronic record or 13 electronic signature has legal consequences is determined by 14 this act and other applicable law. 15 Section 302. Construction and application. 16 This act must be construed and applied: 17 (1) to facilitate electronic transactions consistent 18 with other applicable law; 19 (2) to be consistent with reasonable practices 20 concerning electronic transactions and with the continued 21 expansion of those practices; and 22 (3) to effectuate its general purpose to make uniform 23 the law with respect to the subject of this act among states 24 enacting it. 25 Section 303. Legal recognition of electronic records, 26 electronic signatures and electronic contracts. 27 (a) Form.--A record or signature may not be denied legal 28 effect or enforceability solely because it is in electronic 29 form. 30 (b) Formation.--A contract may not be denied legal effect or 19990S0555B1555 - 8 -
1 enforceability solely because an electronic record was used in 2 its formation. 3 (c) Writing.--If a law requires a record to be in writing, 4 an electronic record satisfies the law. 5 (d) Signature.--If a law requires a signature, an electronic 6 signature satisfies the law. 7 Section 304. Provision of information in writing; presentation 8 of records. 9 (a) Writing.--If parties have agreed to conduct a 10 transaction by electronic means and a law requires a person to 11 provide, send or deliver information in writing to another 12 person, the requirement is satisfied if the information is 13 provided, sent or delivered, as the case may be, in an 14 electronic record capable of retention by the recipient at the 15 time of receipt. An electronic record is not capable of 16 retention by the recipient if the sender or its information 17 processing system inhibits the ability of the recipient to print 18 or store the electronic record. 19 (b) Records.--If a law other than this act requires a record 20 to be posted or displayed in a certain manner, to be sent, 21 communicated or transmitted by a specified method or to contain 22 information which is formatted in a certain manner, the 23 following rules apply: 24 (1) The record must be posted or displayed in the manner 25 specified in the other law. 26 (2) Except as otherwise provided in subsection (d)(2), 27 the record must be sent, communicated or transmitted by the 28 method specified in the other law. 29 (3) The record must contain the information formatted in 30 the manner specified in the other law. 19990S0555B1555 - 9 -
1 (c) Unenforceable.--If a sender inhibits the ability of a 2 recipient to store or print an electronic record, the electronic 3 record is not enforceable against the recipient. 4 (d) Variation by agreement.--The requirements of this 5 section may not be varied by agreement except as follows: 6 (1) To the extent a law other than this act requires 7 information to be provided, sent or delivered, in writing, 8 but permits that requirement to be varied by agreement, the 9 requirement under subsection (a) that the information be in 10 the form of an electronic record capable of retention may 11 also be varied by agreement. 12 (2) A requirement under a law other than this act to 13 send, communicate or transmit a record by first-class mail, 14 postage prepaid, regular United States mail, may be varied by 15 agreement to the extent permitted by the other law. 16 Section 305. Attribution and effect of electronic records and 17 signatures. 18 (a) Attribution.--An electronic record or electronic 19 signature is attributable to a person if it was the act of the 20 person. The act of the person may be shown in any manner, 21 including a showing of the efficacy of any security procedure 22 applied to determine the person to which the electronic record 23 or electronic signature was attributable. 24 (b) Effect.--The effect of an electronic record or 25 electronic signature attributed to a person under subsection (a) 26 is determined: 27 (1) from the context and surrounding circumstances at 28 the time of its creation, execution or adoption, including 29 the parties' agreement, if any; and 30 (2) otherwise as provided by law. 19990S0555B1555 - 10 -
1 Section 306. Effect of change or error. 2 If a change or error in an electronic record occurs in a 3 transmission between parties to a transaction, the following 4 rules apply: 5 (1) If the parties have agreed to use a security 6 procedure to detect changes or errors and one party has 7 conformed to the procedure, but the other party has not, and 8 the nonconforming party would have detected the change or 9 error had that party also conformed, the conforming party may 10 avoid the effect of the changed or erroneous electronic 11 record. 12 (2) In an automated transaction involving an individual, 13 the individual may avoid the effect of an electronic record 14 that resulted from an error made by the individual in dealing 15 with the electronic agent of another person if the electronic 16 agent did not provide an opportunity for the prevention or 17 correction of the error and, at the time the individual 18 learns of the error, the individual: 19 (i) promptly notifies the other person of the error 20 and that the individual did not intend to be bound by the 21 electronic record received by the other person; 22 (ii) takes reasonable steps, including steps which 23 conform to the other person's reasonable instructions, to 24 return to the other person or, if instructed by the other 25 person, to destroy the consideration received, if any, as 26 a result of the erroneous electronic record; and 27 (iii) has not used or received any benefit or value 28 from the consideration, if any, received from the other 29 person. 30 (3) If neither paragraph (1) nor paragraph (2) applies, 19990S0555B1555 - 11 -
1 the change or error has the effect provided by other law, 2 including the law of mistake, and the parties' contract, if 3 any. 4 (4) Paragraphs (2) and (3) may not be varied by 5 agreement. 6 Section 307. Notarization and acknowledgment. 7 If a law requires a signature or record to be notarized, 8 acknowledged, verified or made under oath, the requirement is 9 satisfied if the electronic signature of the person authorized 10 to perform those services, together with all other information 11 required to be included by other applicable law, is attached to 12 or logically associated with the signature or record. 13 Section 308. Retention of electronic records; originals. 14 (a) Requirement.--Subject to subsection (b), if a law 15 requires that a record be retained, the requirement is satisfied 16 by retaining an electronic record of the information in the 17 record which: 18 (1) accurately reflects the information set forth in the 19 record after it was first generated in its final form as an 20 electronic record or otherwise; and 21 (2) remains accessible for later reference. 22 (b) Transmission information.--A requirement to retain a 23 record in accordance with subsection (a) does not apply to any 24 information the sole purpose of which is to enable the record to 25 be sent, communicated or received. 26 (c) Agents.--A person may satisfy subsection (a) by using 27 the services of another person if the requirements of that 28 subsection are satisfied. 29 (d) Originals.--If a law requires a record to be presented 30 or retained in its original form, or provides consequences if 19990S0555B1555 - 12 -
1 the record is not presented or retained in its original form, 2 that law is satisfied by an electronic record retained in 3 accordance with subsection (a). 4 (e) Checks.--If a law requires retention of a check, that 5 requirement is satisfied by retention of an electronic record of 6 the information on the front and back of the check in accordance 7 with subsection (a). 8 (f) Evidence; audits.--A record retained as an electronic 9 record in accordance with subsection (a) satisfies a law 10 requiring a person to retain a record for evidentiary, audit or 11 like purposes. 12 (g) Governmental agencies.--This section does not preclude a 13 governmental agency of this Commonwealth from specifying 14 additional requirements for the retention of a record subject to 15 the governmental agency's jurisdiction, including the 16 requirement that a record be retained in a nonelectronic form. 17 Section 309. Admissibility in evidence. 18 In a proceeding, evidence of a record or signature may not be 19 excluded solely because it is in electronic form. 20 Section 310. Automated transaction. 21 In an automated transaction, the following rules apply: 22 (1) A contract may be formed by the interaction of 23 electronic agents of the parties, even if no individual was 24 aware of or reviewed the electronic agents' actions or the 25 resulting terms and agreements. 26 (2) A contract may be formed by the interaction of an 27 electronic agent and an individual, acting on the 28 individual's own behalf or for another person, including by 29 an interaction in which the individual performs actions which 30 the individual is free to refuse to perform and which the 19990S0555B1555 - 13 -
1 individual knows or has reason to know will cause the 2 electronic agent to complete the transaction or performance. 3 (3) The terms of the contract are determined by the 4 substantive law applicable to it. 5 Section 311. Time and place of sending and receipt. 6 (a) Sending.--Unless otherwise agreed between the sender and 7 the recipient, an electronic record is sent when it: 8 (1) is addressed properly or otherwise directed properly 9 to an information processing system that the recipient has 10 designated or uses for the purpose of receiving electronic 11 records or information of the type sent and from which the 12 recipient is able to retrieve the electronic record; 13 (2) is in a form capable of being processed by that 14 system; and 15 (3) enters an information processing system outside the 16 control of the sender or of a person that sent the electronic 17 record on behalf of the sender or enters a region of the 18 information processing system designated or used by the 19 recipient which is under the control of the recipient. 20 (b) Receipt.--Unless otherwise agreed between a sender and 21 the recipient, an electronic record is received when: 22 (1) it enters an information processing system that the 23 recipient has designated or uses for the purpose of receiving 24 electronic records or information of the type sent and from 25 which the recipient is able to retrieve the electronic 26 record; and 27 (2) it is in a form capable of being processed by that 28 system. 29 (c) Physical location.--Subsection (b) applies even if the 30 place the information processing system is located is different 19990S0555B1555 - 14 -
1 from the place the electronic record is deemed to be received 2 under subsection (d). 3 (d) Place of business.--Unless otherwise expressly provided 4 in the electronic record or agreed between the sender and the 5 recipient, an electronic record is deemed to be sent from the 6 sender's place of business and to be received at the recipient's 7 place of business. For purposes of this subsection, the 8 following rules apply: 9 (1) If the sender or recipient has more than one place 10 of business, the place of business of that person is the 11 place having the closest relationship to the underlying 12 transaction. 13 (2) If the sender or the recipient does not have a place 14 of business, the place of business is the sender's or 15 recipient's residence, as the case may be. 16 (e) Actual receipt.--An electronic record is received under 17 subsection (b) even if no individual is aware of its receipt. 18 (f) Contents.--Receipt of an electronic acknowledgment from 19 an information processing system described in subsection (b) 20 establishes that a record was received but by itself does not 21 establish that the content sent corresponds to the content 22 received. 23 (g) Legal effect.--If a person is aware that an electronic 24 record purportedly sent under subsection (a), or purportedly 25 received under subsection (b), was not actually sent or 26 received, the legal effect of the sending or receipt is 27 determined by other applicable law. Except to the extent 28 permitted by the other law, the requirements of this subsection 29 may not be varied by agreement. 30 Section 312. Transferable records. 19990S0555B1555 - 15 -
1 (a) Control.--A person has control of a transferable record 2 if a system employed for evidencing the transfer of interests in 3 the transferable record reliably establishes that person as the 4 person to which the transferable record was issued or 5 transferred. 6 (b) Compliance.--A system satisfies subsection (a), and a 7 person is deemed to have control of a transferable record, if 8 the transferable record is created, stored and assigned in such 9 a manner that all of the following paragraphs apply: 10 (1) A single authoritative copy of the transferable 11 record exists which is unique, identifiable and, except as 12 otherwise provided in paragraphs (4), (5) and (6), 13 unalterable. 14 (2) The authoritative copy identifies the person 15 asserting control as: 16 (i) the person to which the transferable record was 17 issued; or 18 (ii) if the authoritative copy indicates that the 19 transferable record has been transferred, the person to 20 which the transferable record was most recently 21 transferred. 22 (3) The authoritative copy is communicated to and 23 maintained by the person asserting control or that person's 24 designated custodian. 25 (4) Copies or revisions which add or change an 26 identified assignee of the authoritative copy can be made 27 only with the consent of the person asserting control. 28 (5) Each copy of the authoritative copy and any copy of 29 a copy is readily identifiable as a copy which is not the 30 authoritative copy. 19990S0555B1555 - 16 -
1 (6) Any revision of the authoritative copy is readily 2 identifiable as authorized or unauthorized. 3 (c) Holders.--Except as otherwise agreed, a person having 4 control of a transferable record is the holder, as defined in 5 paragraph (2) of the definition of "holder" in 13 Pa.C.S. § 1201 6 (relating to general definitions), of the transferable record 7 and has the same rights and defenses as a holder of an 8 equivalent record or writing under 13 Pa.C.S. (relating to 9 commercial code), including, if the applicable statutory 10 requirements are satisfied, sections 3302(a) (relating to holder 11 in due course), 7501 (relating to form of negotiation and 12 requirements of "due negotiation") and 9308 (relating to 13 purchase of chattel paper and instruments). Delivery, possession 14 and endorsement are not required to obtain or exercise any of 15 the rights under this subsection. 16 (d) Obligors.--Except as otherwise agreed, an obligor under 17 a transferable record has the same rights and defenses as an 18 equivalent obligor under equivalent records or writings under 13 19 Pa.C.S (relating to commercial code). 20 (e) Proof.--If requested by a person against which 21 enforcement is sought, the person seeking to enforce the 22 transferable record shall provide reasonable proof that the 23 person is in control of the transferable record. Proof may 24 include access to the authoritative copy of the transferable 25 record and related business records sufficient to review the 26 terms of the transferable record and to establish the identity 27 of the person having control of the transferable record. 28 (f) Definition.--As used in this section, the term 29 "transferable record" means an electronic record: 30 (1) which would be a note under 13 Pa.C.S. Div. 3 19990S0555B1555 - 17 -
1 (relating to negotiable instruments) or a document under 13 2 Pa.C.S. Div. 7 (relating to warehouse receipts, bills of 3 lading and other documents of title) if the electronic record 4 were in writing; and 5 (2) the issuer of the electronic record expressly has 6 agreed is a transferable record. 7 CHAPTER 5 8 GOVERNMENTAL AGENCIES 9 Section 501. Creation and retention of electronic records and 10 conversion of written records. 11 Each governmental agency of IN this Commonwealth shall <-- 12 determine whether, and the extent to which, it will create and 13 retain electronic records and convert written records to 14 electronic records. Executive agencies shall also comply with 15 standards published by the Office of Administration. 16 Section 502. Acceptance and distribution of electronic records. 17 (a) Option.--Each governmental agency of IN this <-- 18 Commonwealth shall determine whether, and the extent to which, 19 it will send and accept electronic records and electronic 20 signatures to and from other persons and otherwise create, 21 generate, communicate, store, process, use and rely upon 22 electronic records and electronic signatures. 23 (b) Specifics.--To the extent that a governmental agency 24 uses electronic records and electronic signatures under 25 subsection (a), the governmental agency, giving due 26 consideration to security, may specify all of the following: 27 (1) The manner and format in which the electronic 28 records must be created, generated, sent, communicated, 29 received and stored and the systems established for those 30 purposes. 19990S0555B1555 - 18 -
1 (2) If electronic records must be signed by electronic 2 means, the type of electronic signature required, the manner 3 and format in which the electronic signature must be affixed 4 to the electronic record, and the identity of or criteria 5 that must be met by any third party used by a person filing a 6 document to facilitate the process. 7 (3) Control processes and procedures as appropriate to 8 ensure adequate preservation, disposition, integrity, 9 security, confidentiality and auditability of electronic 10 records. 11 (4) Any other required attributes for electronic records 12 which are specified for corresponding nonelectronic records 13 or reasonably necessary under the circumstances. 14 (c) Not mandatory.--This chapter does not require a 15 governmental agency to use or permit the use of electronic 16 records or electronic signatures. 17 Section 503. Interoperability. 18 The standards published by the Office of Administration under 19 section 501 should encourage and promote consistency and 20 interoperability with similar requirements adopted by other 21 governmental agencies of this and other states and the Federal 22 Government and nongovernmental persons interacting with a 23 governmental agency. If appropriate, those standards may specify 24 differing levels of standards from which a governmental agency 25 may choose in implementing the most appropriate standard for a 26 particular application. 27 Section 504. Legislative Budget and Finance Committee study. <-- 28 The Legislative Budget and Finance Committee is directed to 29 study the feasibility of electronic bidding, including the use 30 of Internet auction procedures, for bonds issued by the 19990S0555B1555 - 19 -
1 Commonwealth, its agencies, authorities and commissions. The 2 study, together with any recommendations, shall be completed 3 within six months of the effective date of this act and shall be 4 forwarded to the Department of General Services and each member 5 of the General Assembly for review. 6 CHAPTER 7 7 ATTRIBUTION OF RECORDS AND SIGNATURES 8 Section 701. Use of security procedures. 9 If there is a security procedure between the parties with 10 respect to the electronic signature or electronic record, the 11 following rules apply: 12 (1) The effect of compliance with a security procedure 13 established by a law or regulation is determined by that law 14 or regulation. 15 (2) In all other cases, if the parties agree to use or 16 otherwise knowingly adopt a security procedure to verify the 17 person from which an electronic signature or electronic 18 record has been sent, the electronic signature or electronic 19 record is attributable to the person identified by the 20 security procedure if the person relying on the attribution 21 satisfies the burden of establishing that: 22 (i) the security procedure was commercially 23 reasonable; 24 (ii) the party accepted or relied on the electronic 25 message in good faith and in compliance with the security 26 procedure and any additional agreement with or separate 27 instructions of the other party; and 28 (iii) the security procedure indicated that the 29 electronic message was from the person to which 30 attribution is sought. 19990S0555B1555 - 20 -
1 (3) If the electronic signature or electronic record is 2 not attributable to a person under section 305 but would be 3 attributable to the person under this section, the electronic 4 signature or electronic record is nevertheless not 5 attributable to the person under this section if the person 6 satisfies the burden of establishing that the electronic 7 signature or electronic record was caused directly or 8 indirectly by a person: 9 (i) that was not entrusted at any time with the 10 right or duty to act for the person with respect to such 11 electronic signature or electronic record or security 12 procedure; 13 (ii) that lawfully obtained access to transmitting 14 facilities of the person if such access facilitated the 15 misuse of the security procedure; or 16 (iii) that obtained, from a source controlled by the 17 person, information facilitating misuse of the security 18 procedure. 19 Section 702. Effect of using security procedure to detect 20 errors or changes. 21 If the parties use a commercially reasonable security 22 procedure to detect errors or changes with respect to an 23 electronic signature or electronic record, the following rules 24 shall apply: 25 (1) The effect of a security procedure is determined by 26 the agreement between the parties or, in the absence of 27 agreement, by this section or any law establishing the 28 security procedure. 29 (2) Unless the circumstances indicate otherwise, if a 30 security procedure indicates that an electronic signature or 19990S0555B1555 - 21 -
1 electronic record has not been altered since a particular 2 time, it is treated as not having been altered since that 3 time. 4 Section 703. Commercial reasonableness. 5 The efficacy and commercial reasonableness of a security 6 procedure is to be determined by the court. In making this 7 determination, the following rules apply: 8 (1) A security procedure established by statute or 9 regulation is effective for transactions covered by the 10 statute or regulation. 11 (2) Except as otherwise provided in paragraph (1), 12 commercial reasonableness and effectiveness is determined in 13 light of the purposes of the security procedure and the 14 commercial circumstances at the time the parties agree to or 15 adopt the procedure. 16 Section 704. Inapplicability to consumers. 17 The provisions of this chapter shall not apply to any 18 electronic transaction to which a consumer is a party. 19 Section 705. Variation by agreement. 20 Except as otherwise provided by statute or regulation, any 21 provision of this chapter other than section 704 may be varied 22 by agreement. 23 CHAPTER 9 24 CONSUMER AGREEMENTS 25 Section 901. Limitation on consumer agreements. 26 In the case of a nonelectronic consumer contract or 27 agreement, the contract or agreement may not contain a provision 28 authorizing the conducting of the transaction or any part 29 thereof by electronic means unless the consumer agrees to such a 30 provision by a separate and express acknowledgment. Such an 19990S0555B1555 - 22 -
1 agreement shall specifically indicate the parts of the 2 transaction to be conducted by electronic means, and shall 3 indicate the manner in which the electronic transaction or a 4 part thereof shall be conducted. An agreement to conduct a 5 consumer transaction or a part thereof electronically may not be 6 inferred solely from the fact that the consumer has used 7 electronic means to pay an account or register a purchase or 8 warranty. 9 Section 902. Sending and receipt. 10 If a party to a consumer transaction has actual knowledge 11 that an electronic record purportedly sent to or purportedly 12 received by the other party was not actually sent to or received 13 by the other party, the purported sending or receipt of the 14 electronic record shall be of no legal force or effect. 15 Section 903. Variation by agreement. 16 The provisions of this chapter may not be varied by agreement 17 of the parties to a consumer contract or transaction. 18 CHAPTER 51 19 MISCELLANEOUS PROVISIONS 20 Section 5101. Applicability. <-- 21 Except as provided in the act of August 21, 1953 (P.L.1323, 22 No.373), known as The Notary Public Law, or its successor, 23 section 307 shall not apply to the actions of a notary pursuant 24 to The Notary Public Law or its successor with regard to 25 electronic notarization, acknowledgment and verification. 26 Section 5102. Effective date. 27 This act shall take effect in 30 days. 28 SECTION 5101. EFFECTIVE DATE. <-- 29 THIS ACT SHALL TAKE EFFECT AS FOLLOWS: 30 (1) SECTION 307 SHALL TAKE EFFECT 30 DAYS FOLLOWING THE 19990S0555B1555 - 23 -
1 PUBLICATION IN THE PENNSYLVANIA BULLETIN OF A NOTICE BY THE 2 SECRETARY OF THE COMMONWEALTH THAT THE PROVISIONS OF SECTION 3 307 NO LONGER CONFLICT WITH THE REQUIREMENTS AND PROCEDURES 4 OF THE ACT OF AUGUST 21, 1953 (P.L.1323, NO.373), KNOWN AS 5 THE NOTARY PUBLIC LAW, OR ITS SUCCESSOR WITH REGARD TO 6 ELECTRONIC NOTARIZATION, ACKNOWLEDGMENT AND VERIFICATION. 7 (2) THIS SECTION SHALL TAKE EFFECT IMMEDIATELY. 8 (3) THE REMAINDER OF THIS ACT SHALL TAKE EFFECT IN 30 9 DAYS. B18L12DMS/19990S0555B1555 - 24 -