RESOLUTION OF CONFLICTS BETWEEN E-SIGN AND UETA – “ANOTHER OAR DIPPED INTO TROUBLED WATERS”

By Robert J. Kiggins, Esq. McCarthy Fingar LLP White Plains, NY NAVA 2005 Compliance & Regulatory Affairs Conference June, 2005

E-Signatures and E-Records Principal Dramatis Personae

 

The federal law is the Electronic Signatures in Global and National Commerce Act (“E-Sign”)

 effective October 1, 2000

The state law:

  Majority - the Uniform Electronic Transactions Act (“UETA”)   promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL) in July, 1999 and enacted by 48 states and territories as of May, 2005 or IL, NY, PR, WA (“Minority States”) - Non-UETA statutes or common law  e.g. NY Electronic Signatures and Records Act (“ESRA”)

Scope of E-SIGN and UETA

  Each provides for the equality of electronic and non-electronic records and signatures.

   Contracts may be formed using electronic records and signatures Statute of frauds requirements of a signed writing for the enforceability of a contract are met by an electronic record with an electronic signature Any other requirements for written disclosures, written notice, written records, or signed consent with regard to a contract can be met using electronic records and electronic signatures Note: Minority States Law not providing these “equal rights” to the e-signature and e-document segment of the “document populace” would almost surely be preempted by E-SIGN

The Major Differences Between E-SIGN & UETA

 Applicability  E-Sign applies to both state and federal electronic record and signature requirements (except where it defers to state law)    UETA applies to only state electronic record and signature requirements.

Minority States Law – also apply only to state electronic records and signatures Example   -VA and VL prospectus delivery requirements Basically controlled by federal securities laws UETA and Minority State Law not apply to federal law  The ESIGN consumer consent to electronic delivery of VA and VL prospectus materials should apply in all states  However, current SEC proposals would eliminate in many cases need for physical delivery of a final prospectus if a statutory prospectus is filed with the SEC on EDGAR

The Major Differences Between E-SIGN & UETA

 

Consent to Conduct Transactions Electronically

 UETA requires each party to agree to conduct transactions electronically – however agreement may be implied from context and circumstances  E-SIGN does not directly limit its enabling provisions to situations where parties have agreed to conduct transactions electronically.

  However, E-SIGN would, where applicable, defer to UETA in this regard In short, this is likely a distinction without a true difference.

Consent to Use of Electronic Records

  UETA does not distinguish agreement to enter into a VA or VL contract electronically from agreement to receive later disclosures and notices electronically E-Sign has stringent consumer consent provisions before there will be deemed to be an agreement by the consumer to receive later disclosures electronically

The Major Differences Between E-SIGN & UETA



Exclusions

  E-SIGN excludes from scope:      utility cut-off notices, including water, heat and power; notices of default, acceleration, repossession, foreclosure or eviction under a credit agreement secured by or a lease of a primary residence; notices of cancellation or termination of health insurance or benefits or life insurance benefits (but not of annuities); recall or notice of material defect in a product that risks endangering health or safety, and required notices to accompany hazardous materials, pesticides, or other toxic or dangerous materials Uniform UETA does not exclude the above items

General Principles Applicable to Whether E-SIGN Preempts or Defers to UETA and Other State Law



General Preemption/Deferral Principles

  Determining whether federal law preempts state law or defers to it is a matter of interpreting the relevant federal statute Preliminarily, however, Congress needs to have the power to make law of the sort in question.  Congress has commerce clause power to regulate electronic commerce, which clearly affects interstate commerce.   In short, Congress had the power to legislate E-SIGN So the issue is to what extent Congress intended E-Sign to preempt state law.   Courts frequently make use of the categories of "express" and "implied" preemption when engaging in this sort of statutory interpretation.

Courts also look to whether state law is nullified to the extent that it conflicts with federal law, because compliance with both state and federal law or regulations is a physical impossibility, or because compliance with state law stands in the way of accomplishment of a federal objective.

          

E-SIGN Preemption/Deferral Section 7002 Text

E-SIGN § 7002. Exemption to preemption (a) In general. A State statute, regulation, or other rule of law may modify, limit, or supersede the provisions of section 101 [15 USCS § 7001] with respect to State law only if such statute, regulation, or rule of law- (1) constitutes an enactment or adoption of the Uniform Electronic Transactions Act as approved and recommended for enactment in all the States by the National Conference of Commissioners on Uniform State Laws in 1999, except that any exception to the scope of such Act enacted by a State under section 3(b)(4) of such Act shall be preempted to the extent such exception is inconsistent with this title or title II [15 USCS §§ 7001 et seq. or 15 USCS § 7021], or would not be permitted under paragraph (2)(A)(ii) of this subsection; or (2) (A) specifies the alternative procedures or requirements for the use or acceptance (or both) of electronic records or electronic signatures to establish the legal effect, validity, or enforceability of contracts or other records, if- (i) such alternative procedures or requirements are consistent with this title and title II [15 USCS §§ 7001 et seq. and 15 USCS § 7021]; and (ii) such alternative procedures or requirements do not require, or accord greater legal status or effect to, the implementation or application of a specific technology or technical specification for performing the functions of creating, storing, generating, receiving, communicating, or authenticating electronic records or electronic signatures; and (B) if enacted or adopted after the date of the enactment of this Act [enacted June 30, 2000], makes specific reference to this Act [15 USCS §§ 7001 et seq. and 47 USCS § 231 note].

(b) Exceptions for actions by States as market participants. Subsection (a)(2)(A)(ii) shall not apply to the statutes, regulations, or other rules of law governing procurement by any State, or any agency or instrumentality thereof.

(c) Prevention of circumvention. Subsection (a) does not permit a State to circumvent this title or title II [15 USCS §§ 7001 et seq. or 15 USCS § 7021] through the imposition of nonelectronic delivery methods under section 8(b)(2) of the Uniform Electronic Transactions Act.

EXPRESS PREEMPTION/DEFERRAL UNDER E-SIGN



Preemption of Inconsistent State Version UETA Exceptions from the Uniform NCCUSL version of UETA [E-Sign 7002(a)(1)]

  States may not enact their own version of UETA exceptions to limit the scope of e-signatures, e-records, and delivery thereof as authorized in the NCCUSL uniform version of UETA if these exceptions are "inconsistent" with E-SIGN Examples:   Example    Uniform UETA does not exclude from scope of permitted electronic notice life and health insurance benefits terminations notices However, E-SIGN does have such an exclusion So, enactment of exclusions under a state version of UETA. requiring paper life and health insurance benefit terminations notice would be permissible Example  Uniform UETA does not exclude from scope of permitted electronic notice annuity terminations notices    E-SIGN also does not exclude annuity terminations notice – i.e. these may be given electronically So a state UETA version barring electronic annuity terminations notice would be preempted.

California, for example, had a host of “homebrew” exclusions many of which would be preempted by E-Sign (See Cal Code 1633.3(c))

EXPRESS PREEMPTION/DEFERRAL UNDER E-SIGN (CONT’D)

 A state version of UETA can specify alternative “consistent with E-SIGN” requirements for electronic records or signatures as to some sorts of notices and disclosures, avoiding preemption [E-SIGN Section 7002(a)(2)].   Consistent in this context means that it is possible to comply with both laws (i.e. state and federal) Example  E-SIGN is silent on issues concerning methodology of delivery of electronic records   Uniform UETA permits “freedom on contract” regarding delivery (e.g. a notice concerning a policy change posted on a Web site could be contractually be agreed to be “delivered”) A state version of UETA could consistent with E-SIGN require email notice be sent to the policyholder

EXPRESS PREEMPTION/DEFERRAL UNDER E-SIGN (CONT’D)

 E-SIGN Defers to Uniform UETA Provisions Which Modify, Limit or Supersede ESIGN [E-Sign 7002(a)(1)]  Some read this to mean that where uniform UETA is silent on a provision contained in E-Sign (Most notoriously - the consumer notice and consent provisions for e-delivery of records) then that E Sign provision does not have to be applied on state law e-delivery of documents  Others question whether silence is the same thing as a modifying, limiting or superseding  Also note no specific “opt out” (c.f. specific provision for state opt out from bankruptcy exemptions in Bankruptcy Code 522(b)(1) )   In the absence of authority, play this safe and get the consumer consents required by E-Sign even in uniform UETA states for state law required doc deliveries Some UETA states have added the E-Sign Consumer Notice and Consent Provisions

EXPRESS PREEMPTION/DEFERRAL UNDER E-SIGN (CONT’D)

 Non-UETA State Laws    As noted several states have not adopted UETA, e.g. NY One NY trial court case actually states in dicta that E-Sign purports to preempt the NY Non-UETA statute (Electronic Signatures and Records Act - ESRA). See People v. McFarlan, 191 Misc. 2d 531, 538 (N.Y.County Supreme, 2002) However, it may be, provided that ESRA fundamentally provides for the equality of electronic and non-electronic records and signatures, that only provisions of ESRA which are “inconsistent” with E-Sign will be pre-empted not the entire law. [E-SIGN7002(a)(2)]  E-Sign does require state law to explicitly refer to E-Sign if enacted after June 30, 2000    ESRA was enacted prior to that in 1999 However, there were some 2002 amendments and NY was careful to refer to E Sign In fact NY took position that NY ESRA does not “modify, limit or supersede” E-Sign but rather “works in tandem” with E-Sign



EXPRESS E-SIGN PREEMPTIONS (Cont’d)

Preemption of Post 6/30/2000 State Nonelectronic (Paper) delivery

requirements [E-Sign 7002(c)]    E-SIGN Section 7002(c), on "prevention of circumvention," provides that states may not circumvent E-SIGN by imposing nonelectronic delivery methods under UETA section 8(b)(2).

Section 8(b)(2) of UETA preserves mandatory state law rules on method of delivery for certain notices, even though that means paper notice--such as rules requiring use of first-class mail. E-SIGN preempts Post 6/30/2000 non-electronic delivery rules  Non-electronic state law delivery requirements existing prior to July 1, 2000 should be grandfathered, because logically they were not passed in circumvention of a yet-to-be-enacted federal statute.

  EG with first class mail delivery requirements. The information to be delivered may be provided on a disc, i.e., in electronic form, but the particular means of delivery must still be via the US postal service.

Display, delivery and formatting requirements will continue to be applicable to electronic records and signatures.

EXPRESS E-SIGN PREEMPTIONS (Cont’d)



Preemption of Technology-specific state laws [ESIGN 7002(a)(2)(A)(ii)]



Electronic records laws that require or accord greater legal status to a “specific technology or technical specification”

 

Some states had required, for example, dual key (public/private) w/ 3

rd

party certification E-SIGN preempts that kind of law



EXPRESS E-SIGN PREEMPTIONS (Cont’d)

Preemption of Inconsistent or Additional State Agency Regulations [E Sign 7004(b)(1)-(2)]    If a state agency is responsible for rulemaking under a statute, E-Sign authorizes the agency to interpret E-Sign provided the rules meet two tests:   State agency rules must be "consistent" with E-SIGN Section 7001 and State agency rules may not add to the requirements of that section.

Note: this makes it clear that adding to E-Sign is not the same as inconsistency with it, an important point in the interpretation of E-Sign’s preemptive effect, so:   State legislatures can add to E-SIGN State agencies cannot, generally, add to E-SIGN E-Sign would permit a state agency to define how a consumer is to "affirmatively consent" to electronic notices and how a merchant should comply with the requirement for a test of the consumer's ability to receive electronic records   But E-Sign would not permit a state agency to add requirements for which there is no framework in E-SIGN, as a matter of interpretation of E-SIGN.

However, uniform UETA 12(g) does allow state agencies to add requirements for records retention – This is “saved” from preemption by ESIGN 7002(a)(1)

IMPLICIT PREEMPTION

  

Implication is that “inconsistent with E-SIGN” non uniform UETA enactments will be preempted by E SIGN Does not mean that states (at least legislatures) can’t enact requirements on which E-SIGN is silent E.G. Consumer Notice Provisions of E-ESIGN

  If a state legislature stated in UETA that it intended to “opt out” of UETA that would be non-uniform’ Opt out language would have to be tested for “consistency” with E-SIGN and would fail

Thank You



For A Copy of this Presentation Leave your Business Card



If You Have Further Questions Contact:

Robert J. Kiggins, Esq.

McCarthy Fingar 11 Martine Avenue White Plains, NY 10606 Tel 914-946-3817 Ext. 251 Email [email protected]



The E-Sign Consumer Consent Rules – Appendix I

Consumer Disclosures: Where it is required by applicable laws, rules or regulations that information be given to a consumer in writing, the use of an electronic record to provide the consumer such information is permitted provided certain requirements are met:   (1) the consumer has affirmatively consented to such use and has not withdrawn such consent; (2) the consumer, prior to consenting, is provided with a clear and conspicuous statement     (a) informing the consumer of  (i) any right or option of the consumer to have the record provided or made available on paper or in nonelectronic form, and  (ii) the right of the consumer to withdraw the consent to have the record provided or made available in an electronic form and of any conditions, (b) informing the consumer of whether the consent applies   (i) only to the particular transaction which gave rise to the obligation to provide the record, or (ii) to identified categories of records that may be provided or made available during the course of the parties’ relationship; (c) describing the procedures the consumer must use to withdraw consent and to update information needed to contact the consumer electronically; and (d) informing the consumer   (i) how, after the consent, the consumer may, upon request, obtain a paper copy of an electronic record, and (ii) whether any fee will be charged for such copy;

  

The E-Sign Consumer Consent Rules – Appendix I (Cont’d)

(3) the consumer—   (a) prior to consenting, is provided with a statement of the hardware and software requirements for access to and retention of the electronic records; and (b) consents electronically, or confirms his or her consent electronically, in a manner that reasonably demonstrates that the consumer can access information in the electronic form that will be used to provide the information that is the subject of the consent; and (4) after the consent of a consumer if a change in the hardware or software requirements needed to access or retain electronic records creates a material risk that the consumer will not be able to access or retain a subsequent electronic record that was the subject of the consent, the person providing the electronic record   (a) provides the consumer with a statement of   (i) the revised hardware and software requirements for access to and retention of the electronic records, and (ii) the right to withdraw consent without the imposition of any fees for such withdrawal and without the imposition of any condition or consequence that was not disclosed and (b) again complies with (3) above

E-SIGN Federal Agency Authority to Exempt from Consumer Consent Provisions – Appendix II



A Federal regulatory agency may:

    with respect to matter within its jurisdiction, by regulation or order issued after notice and an opportunity for public comment exempt without condition a specified category or type of record from the requirements relating to consumer consent if such exemption is necessary to eliminate a substantial burden on electronic commerce and will not increase the material risk of harm to consumers.