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
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The federal law is the Electronic Signatures in Global
and National Commerce Act (“E-Sign”)
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effective October 1, 2000
The state law:
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Majority - the Uniform Electronic Transactions Act
(“UETA”)
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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
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e.g. NY Electronic Signatures and Records Act (“ESRA”)
Scope of E-SIGN and UETA
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Each provides for the equality of electronic and non-electronic
records and signatures.
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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
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Applicability
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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
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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
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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
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Consent to Conduct Transactions Electronically
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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.
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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
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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
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Exclusions
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E-SIGN excludes from scope:
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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
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General Preemption/Deferral Principles
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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.
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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.
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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
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E-SIGN § 7002. Exemption to preemption
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(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].
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(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.
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(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
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Preemption of Inconsistent State Version UETA Exceptions from the
Uniform NCCUSL version of UETA [E-Sign 7002(a)(1)]
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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:
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Example
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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
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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)
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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)].
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Consistent in this context means that it is possible to comply with
both laws (i.e. state and federal)
Example
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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)
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E-SIGN Defers to Uniform UETA Provisions Which
Modify, Limit or Supersede ESIGN [E-Sign 7002(a)(1)]
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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 ESign 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
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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)
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Non-UETA State Laws
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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
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ESRA was enacted prior to that in 1999
However, there were some 2002 amendments and NY was careful to refer to ESign
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)
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Preemption of Post 6/30/2000 State Nonelectronic (Paper) delivery
requirements [E-Sign 7002(c)]
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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)
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Preemption of Technology-specific state
laws [ESIGN 7002(a)(2)(A)(ii)]
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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/ 3rd party certification
E-SIGN preempts that kind of law
EXPRESS E-SIGN
PREEMPTIONS (Cont’d)
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Preemption of Inconsistent or Additional State Agency Regulations [ESign 7004(b)(1)-(2)]
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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:
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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:
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State agency rules must be "consistent" with E-SIGN Section 7001 and
State agency rules may not add to the requirements of that section.
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
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Implication is that “inconsistent with E-SIGN” nonuniform UETA enactments will be preempted by ESIGN
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
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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
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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 rkiggins@mfdds.com
The E-Sign Consumer Consent
Rules – Appendix I
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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:
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(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
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(a) informing the consumer of
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(b) informing the consumer of whether the consent applies
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(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,
(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
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(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)
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(3) the consumer—
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(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
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(a) provides the consumer with a statement of
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(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
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A Federal regulatory agency may:
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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.