[Federal Register Volume 67, Number 190 (Tuesday, October 1, 2002)]
[Notices]
[Pages 61599-61601]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-24891]
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DEPARTMENT OF COMMERCE
National Telecommunications and Information Administration
Docket No. 010222048-2217-03
The Domestic and Family Law Documents Exception to the Electronic
Signatures in Global and National Commerce Act
AGENCY: National Telecommunications and Information Administration
(NTIA), U.S. Department of Commerce
ACTION: Notice, Request For Comments
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SUMMARY: Section 101 of the Electronic Signatures in Global and
National Commerce Act, Pub. L. No. 106-229, codified at 15 U.S.C.
Sec. Sec. 7001 et seq. (``ESIGN'' or ``the Act''), preserves the legal
effect, validity, and enforceability of signatures and contracts
relating to electronic transactions and electronic signatures used in
the formation of electronic contracts. 15 U.S.C. Sec. 7001(a). Section
103 (a) and (b) of the Act, however, provides that the provisions of
section 101do not apply to contracts and records governed by statutes
and regulations regarding court documents; probate and domestic law
matters; certain provisions of state uniform commercial codes; utility
service cancellations, real property foreclosures and defaults;
insurance benefits cancellations; product recall notices; and documents
related to hazardous materials and dangerous substances. 15 U.S.C.
Sec. Sec. 7003(a),(b). Section 103 of the Act also requires the
Secretary of Commerce, through the Assistant Secretary for
Communications and Information, to review the operation of these
exceptions to evaluate whether they continue to be necessary for
consumer protection, and to make recommendations to Congress based on
this evaluation. 15 U.S.C. Sec. 7003(c)(1). This Notice is intended to
solicit comments from interested parties for purposes of this
evaluation, specifically on the domestic and family law documents
exception to the ESIGN Act. See 15 U.S.C. Sec. 7003(a)(2). NTIA will
publish separate notices requesting comment on the other exceptions
listed in section 103 of the ESIGN Act.\1\
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\1\ Comments submitted in response to Federal Register notices
requesting comment on the other exceptions to ESIGN willbe
considered as part of the same section 103 evaluation and not as a
separate review of the Act. NTIA is also evaluating the court
documents exception to ESIGN.
DATES: Written comments and papers are requested to be submitted on or
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before December 2, 2002.
ADDRESSES: Written comments should be submitted to Josephine Scarlett,
National Telecommunications and Information Administration, 14th Street
and Constitution Ave., N.W., Washington, DC 20230. Paper submissions
should include a three and one-half inch computer diskette in HTML,
ASCII, Word, or WordPerfect format (please specify version). Diskettes
should be labeled with the name and organizational affiliation of the
filer, and the name of the word processing program used to create the
document. In the alternative, comments may be submitted electronically
to the following electronic mail address: esignstudy--
[email protected] Comments submitted via electronic mail also should
be submitted in one or more of the formats specified above.
FOR FURTHER INFORMATION CONTACT: For questions about this request for
comment, contact: Josephine Scarlett, Attorney, Office of the Chief
Counsel, NTIA, 14th Street and Constitution Ave., N.W., Washington, DC
20230, telephone (202) 482-1816 or electronic mail:
[email protected] Media inquiries should be directed to the
Office of Public Affairs, National Telecommunications and Information
Administration, at (202) 482-7002.
SUPPLEMENTARY INFORMATION:
Background: Electronic Signatures in Global and National Commerce Act
Congress enacted the Electronic Signatures in Global and National
Commerce Act, Pub. L. No. 106-229, 114 Stat. 464 (2000), to facilitate
the use of electronic records and signatures in interstate and foreign
commerce and to remove uncertainty about the validity of contracts
entered into electronically. Section 101 requires, among other things,
that electronic signatures, contracts, and records be given legal
effect, validity, and enforceability. Sections 103(a) and (b) of the
Act provides that the requirements of section 101 shall not apply to
contracts and records governed by statutes and regulations regarding:
court documents and records, probate and domestic law matters;
documents executed under certain provisions of state commercial
[[Page 61600]]
law; consumer law covering utility services, real property foreclosures
and defaults, and insurance benefits notices; product recall notices;
and hazardous materials documents.
The statutory language providing for an exception to section 101 of
ESIGN for domestic relations and family law documents is found in
section 103(a) of the Act:
Sec. 103. [15 U.S.C. 7003] Specific Exceptions.
(a) Excepted Requirements.-- The provisions of section 101 shall
not apply to a contract or other record to the extent it is governed
by--
* * * *
(2) a State statute, regulation, or other rule of law governing
adoption, divorce, or other matters of family law;
* * * *
The statutory language requiring the Assistant Secretary for
Communications and Information to submit a report to Congress on the
results of the evaluation of the section 103 exceptions to the ESIGN
act is found in section 103(c)(1) of the Act as set forth below.
(c) Review of Exceptions.--
(1) Evaluation required.--The Secretary of Commerce, acting through
the Assistant Secretary for Communications and Information, shall
review the operation of the exceptions in subsections (a) and (b) to
evaluate, over a period of 3 years, whether such exceptions continue to
be necessary for the protection of consumers. Within 3 years after the
date of enactment of this Act, the Assistant Secretary shall submit a
report to Congress on the results of such evaluation.
Domestic and Family Law Documents
State legislatures and state courts have primary jurisdiction for
establishing procedures and rules that govern marriage, divorce,
adoptions, child support and other domestic and family law matters
within that state. The ESIGN exception for domestic and family law
documents means, in effect, that domestic and family law documents
executed electronically or containing electronic signatures are not
required to be accorded the same legal validity or effect as a paper
document. Section 102(a)(1) of ESIGN provides that the states may adopt
electronic transactions statutes, however, that give the state
exclusive jurisdiction with regard to electronic transactions that
occur within the state. See 15 U.S.C. Sec. 7002(a). This section
allows states to modify, limit, or supersede the application of ESIGN
to electronic transactions that occur within the state law by adopting
either the Uniform Electronic Transactions Act (known as UETA) as
approved and recommended for enactment by the National Conference of
Commissioners on Uniform State Laws (NCCUSL) or a statute that
specifies an alternative procedure for the use and acceptance of
electronic signatures, which complies with the provisions of ESIGN. See
id.
Several states have used section 102(a)(1) of ESIGN to adopt
electronic transactions laws that incorporate or exclude state-
exclusive areas from the application of the state's electronic
transactions law.\2\ See National Conference of Commissioners on
Uniform State Laws athttp://www.nccusl.org/nccusl/
LegislativeByState.pdf. Thirty-nine states have adopted theversion of
UETA recommended by NCCUSL or their own version of UETA. Of the states
that have passed UETA laws, five have expressly excluded domestic
relations and family law documents from the operation of the state
electronic transactions laws.\3\ A large number of the remaining states
have passed state UETA laws that do not contain language that expressly
excludes family law documents. These statutes do contain general
provisions, however, that make the substantive domestic relations law
controlling, which requires an examination of the domestic relations
law to determine whether electronic family law documents are legally
valid.
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\2\ We note that there are federal laws that impact family law
matters where there is a federal interest. See e.g. 50 U.S.C. Sec.
520 (governs the entry of default orders in divorce proceedings
where the defendant is on active military duty). The writing and
evidentiary requirements for documents related to domestic law,
however, are largely within the exclusive jurisdiction of the
states.
\3\ Alabama, Louisiana, Mississippi, New Jersey, and New Mexico.
See National Conference of Commissioners on Uniform State Laws at
http://www.nccusl.org/nccusl/legislativebystate.pdf.
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For example, Maryland's UETA law does not exempt domestic relations
and family law documents but provides: ``this title applies to an
electronic record or electronic signature otherwise excluded from the
application of this title under subsection (B) of this section to the
extent it is governed by a law other than those specified in subsection
(B) of this section.'' See 2000 Md. Laws 8, section 21-101 (E). The law
also provides: ``[a] transaction subject to this title is also subject
to other applicable substantive law.'' Id. at section 21-101(F).
In similar fashion, South Carolina's UETA statute provides: This
[section regarding electronic signatures] does not apply to the extent
that its application would result in a construction of law that is
clearly inconsistent with the manifest intent of the lawmaking body or
repugnant to the context of the same rule of law [of the underlying
substantive law]. However, the mere requirement that information be 'in
writing', 'written', 'printed', 'signed' or any other word that
purports to specify or require a particular communication medium, is
not by itself sufficient to establish such intent. See 1998 S.C. Acts
374, sec. 26-5-320(B).
The absence of an exception in a state's UETA law for documents
governed by domestic relations and family law, therefore, does not
automatically make these documents subject to that law. If the
underlying substantive law requires a paper writing or prohibits the
use of an electronic signature for the formation of these documents,
electronic documents for family and domestic law matters would not be
legally valid. Alternatively, the underlying state substantive law
governing domestic relations and family law may allow documents to be
formed in an electronic format or established using an electronic
signature.
Since the enactment of ESIGN, federal and state courts have made
tremendous gains toward providing the public with electronic access to
court documents and online filing procedures in courts across the
nation.\4\ In their efforts to computerize court systems, the states
may have revised their laws and procedures to include some family law
and domestic relations documents among those that are available and may
be filed electronically.
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\4\ NTIA has also published a separate Federal Register notice
requesting comment on the court documents exception to ESIGN.
Comments filed in response to the court documents notice may be
considered in the evaluation of the domestic relations and family
law documents exception.
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The legislative history of the ESIGN Act does not indicate the
intent of the drafters in making an exception for domestic relations
and family law documents, but the personal nature of the information
disclosed during these proceedings and the relative privacy interests
of the participants may raise issues that do not appear in legal
proceedings involving commercial or other civil matters. Information
regarding changes in state law to allow electronic filings or access to
documents pertaining to divorce, paternity, adoption, child support,
protective order, guardianship proceedings, or power of attorneys would
assist in the evaluation of whether consumers would be adequately
protected if the domestic relations and family documents exception to
ESIGN is eliminated from the Act.
[[Page 61601]]
The ESIGN Section 103 Evaluation
The ESIGN Act directs the Assistant Secretary of Communications and
Information to conduct an evaluation of the exceptions set out in
section 103 of the Act to determine whether the exceptions continue to
be necessary for the protection of consumers, and to submit a report to
Congress on the results of the evaluations no later than June 30, 2003.
The Assistant Secretary for Communications and Information is the chief
administrator of NTIA. As the President's principal advisor on
telecommunications policies pertaining to the Nation's economic and
technological advancement, NTIA is the executive branch agency
responsible for developing and articulating domestic and international
telecommunications policy.
The ESIGN section 103 evaluation of the domestic relations and
family law documents exception is intended to evaluate the current
status of the law and procedure regarding this issue, in preparation
for a report to Congress on whether the domestic relations and family
law documents exception remains necessary to protect consumers. This
evaluation is not a review or analysis of laws relating to these
documents for the purpose of recommending that Congress draft
legislation or propose changes to those laws but to advise Congress of
the current state of law, practice, and procedure regarding this issue.
Comments filed in response to this Notice should not be considered to
have a connection with or impact on ongoing specific federal and state
procedures or rulemaking proceedings concerning family law or domestic
relations documents.
Invitation to Comment
NTIA requests that all interested parties submit written comment on
any issue of fact, law, or policy that may assist in the evaluation
required by section 103(c). We invite comment from all parties that may
be affected by the removal of the family law documents exception from
the ESIGN Act including, but not limited to, state agencies and
organizations, national and state bar associations, consumer advocates,
and family law practitioners. The comments submitted will assist NTIA
in evaluating the potential impact of the removal of the family law
documents exception from ESIGN on state domestic relations and family
law, and state electronic transactions laws. The following questions
are intended to provide guidance as to the specific subject areas to be
examined as a part of the evaluation. Commenters are invited to discuss
any relevant issue, regardless of whether it is identified below.
1. Describe state laws that allow for electronic access and filing
of documents related to domestic relations and family law, including,
but not limited to, documents related to adoptions, divorce, child
custody or support, guardianship and civil protection.
2. Discuss how statutes that require written documents related to
domestic and family law matters may be affected if the exception for
domestic relations and family law matters is eliminated from the ESIGN
Act.
3. Describe other state, or federal laws, that require family law
documents to be excluded from the operation of ESIGN or the applicable
state uniform electronic transactions law.
4. Describe state or uniform laws that allow domestic relations and
family law documents to be established in an electronic format or with
an electronic signature.
5. Discuss any unique issues surrounding the execution of documents
for each of the specific areas that states have considered in
determining whether domestic relations and family law documents may or
may not be processed in an electronic format. The following list is not
exhaustive and any other area relevant to domestic relations and family
law may be discussed.
a. petitions for adoption, or transfer of parental rights, or any
information regarding the identity of biological parents;
b. petitions for divorce or applications for alimony authorizations
for alimony, custody, or child support (final or pending litigation);
c. visitation, support and custody agreements or modifications of
agreements between parties;
d. property settlements or agreements related to domestic relations
actions;
e. requests for or answers regarding protective orders, emergency
or otherwise;
f. guardianship proceedings and powers of attorney;
g. court orders, reports, notices, summons, or service of process
regarding items a. through f. above; and
h. any other domestic relations or family law document or issue
that contains a writing requirement, contract, agreement or other
document.
6. State whether uniform laws governing domestic relations and
family law issues have been adopted and the impact on these laws if the
ESIGN exception for domestic relations and family law matters is
eliminated (e.g., the Uniform Child Custody Jurisdiction and
Enforcement Act, the Interstate Family Support Act). Discuss whether
any of the uniform laws related to domestic relations and family law,
as adopted in any state, either allow or prohibit the use of electronic
documents to meet the writing requirements of the law, including
notices to parties or communications between courts in different
states.
7. Provide a description of any instance in which documents related
to domestic relations cases have been executed in an electronic format,
including final court orders, or plans to implement procedures for the
on-line execution of such documents.
Please provide copies of studies, reports, opinions, research or
other empirical data referenced in the responses.
Dated: September 26, 2002.
Kathy D. Smith,
Chief Counsel, National Telecommunications and Information
Administration.
[FR Doc. 02-24891 Filed 9-30-02; 8:45 am]
BILLING CODE 3510-60-S
