Senate Bill 204 History
OTHER VERSIONS -
Enrolled Version - Final Version
UNIFORM ELECTRONIC TRANS BILL
Senate Bill No. 204
(By Senators Snyder, Fanning, McCabe, Oliverio, Ross, Deem and
[Introduced February 21, 2001; referred to the Committee on
A BILL to repeal article thirty-nine, chapter five of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended; and to amend said code by adding thereto a new
chapter, designated chapter thirty-nine-a, relating generally
to electronic commerce and the uniform electronic transactions
act; defining terms; adopting the uniform electronic
transaction act; providing that the act applies to electronic
records and electronic signatures relating to transactions
covered by the act; creating exemptions; providing that the
act does not create or alter substantive law; applying the act
upon agreement of the parties to a transaction; providing that
parties may vary the effect of the act by agreement; providing
that the right not to conduct transactions by electronic means may not be waived; providing for the construction and
application of the act; providing that records, signatures and
contracts may not be denied legal effect or enforcibility
solely because they are in electronic form; providing that an
electronic record satisfies the legal requirement that a
record be in writing; providing that electronic signature
satisfies the legal requirement for a signature; recognizing
the legal effect of providing or sending information by
electronic means; establishing the requirements for providing
or sending information by electronic means; providing that
when a law, other than this act, contains specific
requirements for a record an electronic record must meet those
requirements; providing that an electronic record or signature
is attributable to the person creating it; establishing
requirements for showing an electronic record or signature was
created by a specific person; providing protection for the
conforming party against the nonconforming party in the event
of a change or error; establishing a procedure for correcting
errors; establishing when other law applies when a error or
change has occurred; authorizing electronic notarization and
acknowledgment; establishing requirements for retention of
electronic records as originals; providing that a legal requirement to retain or present a record, including a check,
in its original form may be satisfied by an electronic record;
providing that an electronic record may satisfy the legal
requirements for retaining records for evidentiary, audit, or
like purposes unless specifically prohibited by law; providing
that an electronic record or signature may not be excluded
from evidence solely because it is in electronic form;
authorizing formation of contracts through automated
transactions; providing that the terms of a contract formed by
an automated transaction will be determined by applicable
substantive law; establishing the conditions under which an
electronic record is considered to have been sent;
establishing the conditions under which an electronic record
is considered to have been received; providing that an
electronic record will be deemed to have been sent from the
sender's place of business; providing that an electronic
record will be deemed to have been received at the receiver's
place of business; providing that where the sender or receiver
has more than one place of business, the place of business of
that person is the place having the closest relationship to
the underlying transaction; providing that if the sender or
receiver does not have a place of business, the place of business of that person is his or her residence; providing
that an electronic record is received even if no individual is
aware of its receipt; providing that receipt of an electronic
acknowledgment from an information processing system
establishes that the record was sent but does not, by itself,
establish that the content received is the same as what was
sent; establishing the circumstances under which the legal
effect of sending or receipt of an electronic record is
controlled by other applicable law; providing that parts of
this article may not be waived or varied by an agreement
between the parties; defining transferrable records for
purposes of using electronic means to transfer or maintain
such records; establishing the requirements for using
electronic means to transfer or maintain transferable records;
providing for the applicability of the uniform commercial code
to electronic transferable records; providing for the
applicability of the consumer protection portions of the
federal electronic signatures in global and national commerce
act; establishing the requirements for the acceptance of
electronic signatures by governmental entities; requiring
governmental entities choosing to use electronic signatures to
participate in the secretary of state's registry and follow the secretary of state's rules; authorizing governmental
entities to adopt an ordinance, rule or official policy
relating to use of digital signatures; requiring public notice
of a governmental entity's acceptance of electronic
signatures; authorizing the secretary of state to propose
legislative rules relating to the standards and processes for
the use of electronic signatures by governmental entities;
designating the secretary of state as the certification
authority and repository for certain governmental agencies
using electronic signatures; requiring the secretary of state
to regulate electronic transactions and digital signature
verifications; setting forth the powers and duties of the
secretary of state with regard to governmental use of
electronic transactions; providing that no specific form of
technology, process or standard is required by this article;
authorizing the secretary of state to revoke a signature key
believed to be stolen, fraudulently used or otherwise
compromised; and providing that the secretary of state is not
liable for any transaction compromised by an illegal act or
inappropriate use of an electronic signature.
Be it enacted by the Legislature of West Virginia:
That article thirty-nine, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be
repealed; and that said code be amended by adding thereto a new
chapter, designated chapter thirty-nine-a, to read as follows:
CHAPTER 39A. ELECTRONIC COMMERCE.
ARTICLE 1. UNIFORM ELECTRONIC TRANSACTIONS ACT.
§39A-1-1. Short title.
This article may be cited as the Uniform Electronic
In this chapter:
(1) "Agreement" means the bargain of the parties in fact, as
found in their language or inferred from other circumstances and
from rules, regulations and procedures given the effect of
agreements under laws otherwise applicable to a particular
(2) "Automated transaction" means a transaction conducted or
performed, in whole or in part, by electronic means or electronic
records, in which the acts or records of one or both parties are
not reviewed by an individual in the ordinary course in forming a
contract, performing under an existing contract, or fulfilling an
obligation required by the transaction.
(3) "Certificate" means a computer-based record that:
(A) Identifies the certification authority issuing it;
(B) Names or identifies its subscriber;
(C) Contains the subscriber's public key; and
(D) Is digitally signed by the certification authority issuing
(4) "Certification authority" means a person who issues a
(5) "Computer program" means a set of statements or
instructions to be used directly or indirectly in an information
processing system in order to bring about a certain result.
(6) "Contract" means the total legal obligation resulting from
the parties' agreement as affected by this article and other
(7) "Digital mark" consists of an electronic code indicating
approval or confirmation which is entered into a protected digital
record following access protocols which identify the user and
require a password, personal identification number, encrypted card
or other security device which restricts access to one or more
authorized individuals; and
(8) "Digital signature" consists of a message transformed
using an asymmetric cryptosystem so that a person having the
initial message and the signer's public key can accurately determine:
(A) Whether the transformed message was created using the
private key that corresponds to the signer's public key; and
(B) Whether the initial message has been altered since the
message was transformed.
(9) "Electronic" means relating to technology having
electrical, digital, magnetic, wireless, optical, electromagnetic
or similar capabilities.
(10) "Electronic agent" means a computer program or an
electronic or other automated means used independently to initiate
an action or respond to electronic records or performances in whole
or in part, without review or action by an individual.
(11) "Electronic record" means a record created, generated,
sent, communicated, received or stored by electronic means.
(12) "Electronic signature" means an electronic sound, symbol
or process attached to or logically associated with a record and
executed or adopted by a person with the intent to sign the record.
(13) "Governmental agency" means an executive, legislative, or
judicial agency, department, board, commission, authority,
institution, or instrumentality of the federal government or of a
state or of a county, municipality or other political subdivision
of a state.
(14) "Information" means data, text, images, sounds, codes,
computer programs, software, databases or the like.
(15) "Information processing system" means an electronic
system for creating, generating, sending, receiving, storing,
displaying or processing information.
(16) "Person" means an individual, corporation, business
trust, estate, trust, partnership, limited liability company,
association, joint venture, governmental agency, public
corporation, or any other legal or commercial entity.
(17) "Record" means information that is inscribed on a
tangible medium or that is stored in an electronic or other medium
and is retrievable in perceivable form.
(18) "Security procedure" means a procedure employed for the
purpose of verifying that an electronic signature, record or
performance is that of a specific person or for detecting changes
or errors in the information in an electronic record. The term
includes a procedure that requires the use of algorithms or other
codes, identifying words or numbers, encryption, or callback or
other acknowledgment procedures.
(19) "State" means a state of the United States, the District
of Columbia, Puerto Rico, the United States Virgin Islands or any
territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band or Alaskan
native village, which is recognized by federal law or formally
acknowledged by a state.
(20) "Transaction" means an action or set of actions occurring
between two or more persons relating to the conduct of business,
commercial or governmental affairs.
(a) This article adopts the Uniform Electronic Transaction Act
(1999) adopted by the National Conference of Commissioners on
Uniform State Laws, and to the extent provided herein, is intended
to replace the provisions of the federal "Electronic Signatures in
Global and National Commerce Act" ___ U.S.C. §___.
(b) Except as otherwise provided in subsection (b), this
article applies to electronic records and electronic signatures
relating to a transaction.
(c) This article does not apply to a transaction to the extent
it is governed by:
(1) A law governing the creation and execution of wills,
codicils or testamentary trusts; and
(2) The Uniform Commercial Code other than sections 1-107 and
1-206, article two, and article two-a.
(d) This article applies to an electronic record or electronic signature otherwise excluded from the application of this article
under subsection (b) to the extent it is governed by a law other
than those specified in subsection (b).
(e) A transaction subject to this article is also subject to
other applicable substantive law.
§39A-1-4. Prospective application.
This article applies to any electronic record or electronic
signature created, generated, sent, communicated, received or
stored on or after the effective date of this article.
§39A-1-5. Use of electronic records and electronic signatures;
variation by agreement.
(a) This article does not require a record or signature to be
created, generated, sent, communicated, received, stored or
otherwise processed or used by electronic means or in electronic
(b) This article applies only to transactions between parties
each of which has agreed to conduct transactions by electronic
means. Whether the parties agree to conduct a transaction by
electronic means is determined from the context and surrounding
circumstances, including the parties' conduct.
(c) A party that agrees to conduct a transaction by electronic
means may refuse to conduct other transactions by electronic means. The right granted by this subsection may not be waived by
(d) Except as otherwise provided in this article, the effect
of any of its provisions may be varied by agreement. The presence
in certain provisions of this article of the words "unless
otherwise agreed", or words of similar import, does not imply that
the effect of other provisions may not be varied by agreement.
(e) Whether an electronic record or electronic signature has
legal consequences is determined by this article and other
§39A-1-6. Construction and application
This article must be construed and applied:
(1) To facilitate electronic transactions consistent with
other applicable law;
(2) To be consistent with reasonable practices concerning
electronic transactions and with the continued expansion of those
(3) To effectuate its general purpose to make uniform the law
with respect to the subject of this article among states enacting
§39A-1-7. Legal recognition of electronic records, electronic
signatures and electronic contracts.
(a) A record or signature may not be denied legal effect or
enforcability solely because it is in electronic form.
(b) A contract may not be denied legal effect or enforcability
solely because an electronic record was used in its formation.
(c) If a law requires a record to be in writing, an electronic
record satisfies the law.
(d) If a law requires a signature, an electronic signature
satisfies the law.
§39A-1-8. Provision of information in writing; presentation of
(a) If parties have agreed to conduct a transaction by
electronic means and a law requires a person to provide, send, or
deliver information in writing to another person, the requirement
is satisfied if the information is provided, sent or delivered, as
the case may be, in an electronic record capable of retention by
the recipient at the time of receipt. An electronic record is not
capable of retention by the recipient if the sender or its
information processing system inhibits the ability of the recipient
to print or store the electronic record.
(b) If a law other than this article requires a record: (i)
to be posted or displayed in a certain manner; (ii) to be sent,
communicated or transmitted by a specified method; or (iii) to contain information that is formatted in a certain manner, the
following rules apply:
(1) The record must be posted or displayed in the manner
specified in the other law.
(2) Except as otherwise provided in subsection (d)(2), the
record must be sent, communicated, or transmitted by the method
specified in the other law.
(3) The record must contain the information formatted in the
manner specified in the other law.
(c) If a sender inhibits the ability of a recipient to store
or print an electronic record, the electronic record is not
enforceable against the recipient.
(d) The requirements of this section may not be varied by
(1) To the extent a law other than this article requires
information to be provided, sent or delivered in writing but
permits that requirement to be varied by agreement, the requirement
under subsection (a) that the information be in the form of an
electronic record capable of retention may also be varied by
(2) A requirement under a law other than this article to send,
communicate or transmit a record by first class mail, postage prepaid, regular United States mail, certified mail or registered
mail, may be varied by agreement to the extent permitted by the
§39A-1-9. Attribution and effect of electronic record and
(a) An electronic record or electronic signature is
attributable to a person if it was the act of the person. The act
of the person may be shown in any manner, including a showing of
the efficacy of any security procedure applied to determine the
person to which the electronic record or electronic signature was
(b) The effect of an electronic record or electronic signature
attributed to a person under subsection (a) is determined from the
context and surrounding circumstances at the time of its creation,
execution, or adoption, including the parties' agreement, if any,
and otherwise as provided by law.
§39A-1-10. Effect of change or error.
If a change or error in an electronic record occurs in a
transmission between parties to a transaction, the following rules
(1) If the parties have agreed to use a security procedure to
detect changes or errors and one party has conformed to the procedure, but the other party has not, and the nonconforming party
would have detected the change or error had that party also
conformed, the conforming party may avoid the effect of the changed
or erroneous electronic record.
(2) In an automated transaction involving an individual, the
individual may avoid the effect of an electronic record that
resulted from an error made by the individual in dealing with the
electronic agent of another person if the electronic agent did not
provide an opportunity for the prevention or correction of the
error and, at the time the individual learns of the error, the
(A) Promptly notifies the other person of the error and that
the individual did not intend to be bound by the electronic record
received by the other person;
(B) Takes reasonable steps, including steps that conform to
the other person's reasonable instructions, to return to the other
person or, if instructed by the other person, to destroy the
consideration received, if any, as a result of the erroneous
electronic record; and
(C) Has not used or received any benefit or value from the
consideration, if any, received from the other person.
(3) If neither paragraph (1) nor paragraph (2) applies, the change or error has the effect provided by other law, including the
law of mistake, and the parties' contract, if any.
(4) Paragraphs (2) and (3) may not be varied by agreement.
§39A-1-11. Notarization and acknowledgment.
If a law requires a signature or record to be notarized,
acknowledged, verified, or made under oath, the requirement is
satisfied if the electronic signature of the person authorized to
perform those acts, together with all other information required to
be included by other applicable law, is attached to or logically
associated with the signature or record.
§39A-1-12. Retention of electronic records; originals
(a) If a law requires that a record be retained, the
requirement is satisfied by retaining an electronic record of
the information in the record which:
(1) Accurately reflects the information set forth in the
record after it was first generated in its final form as an
electronic record or otherwise; and
(2) Remains accessible for later reference.
(b) A requirement to retain a record in accordance with
subsection (a) does not apply to any information the sole purpose
of which is to enable the record to be sent, communicated or
(c) A person may satisfy subsection (a) by using the services
of another person if the requirements of that subsection are
(d) If a law requires a record to be presented or retained in
its original form, or provides consequences if the record is not
presented or retained in its original form, that law is satisfied
by an electronic record retained in accordance with subsection (a).
(e) If a law requires retention of a check, that requirement
is satisfied by retention of an electronic record of the
information on the front and back of the check in accordance with
(f) A record retained as an electronic record in accordance
with subsection (a) satisfies a law requiring a person to retain a
record for evidentiary, audit, or like purposes, unless a law
enacted after the effective date of this article specifically
prohibits the use of an electronic record for the specified
(g) This section does not preclude a governmental agency of
this state from specifying additional requirements for the
retention of a record subject to the agency's jurisdiction.
§39A-1-13. Admissibility in evidence.
In a proceeding, evidence of a record or signature may not be excluded solely because it is in electronic form.
§39A-1-14. Automated transaction
In an automated transaction, the following rules apply:
(1) A contract may be formed by the interaction of electronic
agents of the parties, even if no individual was aware of or
reviewed the electronic agents' actions or the resulting terms and
(2) A contract may be formed by the interaction of an
electronic agent and an individual, acting on the individual's own
behalf or for another person, including by an interaction in which
the individual performs actions that the individual is free to
refuse to perform and which the individual knows or has reason to
know will cause the electronic agent to complete the transaction or
(3) The terms of the contract are determined by the
substantive law applicable to it.
§39A-1-15. Time and place of sending and receipt.
(a) Unless otherwise agreed between the sender and the
recipient, an electronic record is sent when it:
(1) Is addressed properly or otherwise directed properly to an
information processing system that the recipient has designated or
uses for the purpose of receiving electronic records or information of the type sent and from which the recipient is able to retrieve
the electronic record;
(2) Is in a form capable of being processed by that system;
(3) Enters an information processing system outside the
control of the sender or of a person that sent the electronic
record on behalf of the sender or enters a region of the
information processing system designated or used by the recipient
which is under the control of the recipient.
(b) Unless otherwise agreed between a sender and the
recipient, an electronic record is received when:
(1) It enters an information processing system that the
recipient has designated or uses for the purpose of receiving
electronic records or information of the type sent and from which
the recipient is able to retrieve the electronic record; and
(2) It is in a form capable of being processed by that system.
(c) Subsection (b) applies even if the place the information
processing system is located is different from the place the
electronic record is deemed to be received under subsection (d).
(d) Unless otherwise expressly provided in the electronic
record or agreed between the sender and the recipient, an
electronic record is deemed to be sent from the sender's place of business and to be received at the recipient's place of business.
For purposes of this subsection, the following rules apply:
(1) If the sender or recipient has more than one place of
business, the place of business of that person is the place having
the closest relationship to the underlying transaction.
(2) If the sender or the recipient does not have a place of
business, the place of business is the sender's or recipient's
residence, as the case may be.
(e) An electronic record is received under subsection (b) even
if no individual is aware of its receipt.
(f) Receipt of an electronic acknowledgment from an
information processing system described in subsection (b)
establishes that a record was received but, by itself, does not
establish that the content sent corresponds to the content
(g) If a person is aware that an electronic record purportedly
sent under subsection (a), or purportedly received under subsection
(b), was not actually sent or received, the legal effect of the
sending or receipt is determined by other applicable law. Except
to the extent permitted by the other law, the requirements of this
subsection may not be varied by agreement.
§39A-1-16. Transferable records.
(a) In this section, "transferable record" means an electronic
(1) Would be a note under article three of the Uniform
Commercial Code or a document under article seven of the Uniform
Commercial Code if the electronic record were in writing; and
(2) The issuer of the electronic record expressly has agreed
is a transferable record.
(b) A person has control of a transferable record if a system
employed for evidencing the transfer of interests in the
transferable record reliably establishes that person as the person
to which the transferable record was issued or transferred.
(c) A system satisfies subsection (b), and a person is deemed
to have control of a transferable record, if the transferable
record is created, stored, and assigned in such a manner that:
(1) A single authoritative copy of the transferable record
exists which is unique, identifiable, and, except as otherwise
provided in paragraphs (4), (5) and (6), unalterable;
(2) The authoritative copy identifies the person asserting
(A) The person to which the transferable record was issued; or
(B) If the authoritative copy indicates that the transferable
record has been transferred, the person to which the transferable record was most recently transferred;
(3) The authoritative copy is communicated to and maintained
by the person asserting control or its designated custodian;
(4) Copies or revisions that add or change an identified
assignee of the authoritative copy can be made only with the
consent of the person asserting control;
(5) Each copy of the authoritative copy and any copy of a copy
is readily identifiable as a copy that is not the authoritative
(6) Any revision of the authoritative copy is readily
identifiable as authorized or unauthorized.
(d) Except as otherwise agreed, a person having control of a
transferable record is the holder, as defined in section 1-201(20)
of the Uniform Commercial Code, of the transferable record and has
the same rights and defenses as a holder of an equivalent record or
writing under the Uniform Commercial Code, including, if the
applicable statutory requirements under section 3-302(a), 7-501, or
9-308 of the Uniform Commercial Code are satisfied, the rights and
defenses of a holder in due course, a holder to which a negotiable
document of title has been duly negotiated, or a purchaser,
respectively. Delivery, possession and indorsement are not
required to obtain or exercise any of the rights under this subsection.
(e) Except as otherwise agreed, an obligor under a
transferable record has the same rights and defenses as an
equivalent obligor under equivalent records or writings under the
Uniform Commercial Code.
(f) If requested by a person against which enforcement is
sought, the person seeking to enforce the transferable record shall
provide reasonable proof that the person is in control of the
transferable record. Proof may include access to the authoritative
copy of the transferable record and related business records
sufficient to review the terms of the transferable record and to
establish the identity of the person having control of the
§39A-1-17. Applicability of the federal electronic signatures in
global and national commerce act.
This article is not intended to modify, limit or supersede the
requirements of section one hundred one (c), (d) or (e), nor to
authorize the electronic delivery of any notice of the type
described in section one hundred three (b) of the federal
"Electronic Signatures in Global and National Commerce Act"
ARTICLE 2. DIGITAL SIGNATURES; STATE ELECTRONIC RECORDS AND
§39A-2-1. Acceptance of electronic signature by governmental
entities in satisfaction of signature requirement.
(a) Any governmental entity may, by appropriate official
action, authorize the acceptance of electronic signatures in lieu
of original signatures on messages or filings requiring one or more
original signatures, subject to the requirements and limitations of
section three of this article.
(b) Any governmental entity may elect to participate and
utilize the secretary of state's digital signature authority and
registry. Upon acceptance of and registration with the secretary
of state's digital signature authority and registry, the
governmental entity's electronic transactions are bound to the
regulation of the authority and registry and those rules
promulgated thereunder. Any governmental entity not required to
participate, but which elects to participate, may withdraw at any
time from the program, upon notification of the secretary of state
and all others who utilize that entity's digital signature program.
(c) Any governmental entity may adopt, in the manner provided
by law, an ordinance, rule or official policy designating the
documents on which electronic signatures are authorized, and the
type or types of electronic signatures which may be accepted for each type of document. Those governmental entities not subject to
the provisions of chapter twenty-nine-a of this code, which
proposes to authorize the acceptance of electronic signatures on
documents filed with that entity shall give public notice of the
proposed adoption in a manner prescribed by law, an ordinance, rule
or official policy, but in no case for less than thirty days before
(d) Any governmental entity which intends to extend, modify or
revoke the authority to accept electronic signatures shall do so by
the same means and with the same notice as required in this section
§39A-2-2. Duties of the secretary of state; state agencies use of
(a) The secretary of state shall propose legislative rules for
promulgation in accordance with the provisions of article three,
chapter twenty-nine-a of this code to establish standards and
processes to facilitate the use of electronic signatures in all
governmental transactions by state agencies subject to chapter
twenty-nine-a of this code. The rules shall include minimum
standards for secure transactions to promote confidence and
efficiency in legally binding electronic document transactions.
The rules may be amended from time to time to keep the rules current with new developments in technology and improvements in
secured transaction processes.
(b) The secretary of state is designated the certification
authority and repository for all governmental agencies which are
subject to chapter twenty-nine-a of this code, and shall regulate
transactions and digital signature verifications. The secretary
may enter into reciprocal agreements with all state and federal
governmental entities to promote the efficient governmental use of
electronic transactions. The secretary of state may propose
legislative rules for issuing certificates that bind public keys to
individuals, and other electronic transaction authentication
devices as provided for in this article. The secretary of state is
further authorized to contract with a private entity to serve as
certification authority for the state of West Virginia. This
private certification authority may contract with persons to
provide certification service. Any contract entered into must
require the certification authority to meet the requirements of
this article and any rules promulgated by the secretary of state.
(c) Nothing contained in this article may be construed to
mandate any specific form of technology, process or standard to be
the only technology, process or standard which may be utilized by
state entities. Nor may anything contained in this article be construed to limit the secretary of state in adopting by
legislative rule, alternative technologies to authorize electronic
§39A-2-3. Secretary of state; liability.
The secretary of state, serving as authority and repository
of signature keys for governmental entities shall revoke any
signature key when the secretary has reason to believe that the
digital signature key has been stolen, fraudulently used or
otherwise compromised. This article creates no liability upon the
secretary of state for any transaction compromised by any illegal
act or inappropriate uses associated with electronic signatures.
Note: The purpose of this bill is to create a specific
chapter of the West Virginia Code to accommodate future statutes
dealing with electronic commerce; adopt the Uniform Electronic
Transactions Act; and incorporate West Virginia's Electronic
Signatures Act into UETA. The UETA was approved by the National
conference of Commissioners on Uniform State Laws in July, 1999 and
recommended for enactment in all states.
This article is new; therefore, strike-throughs and
underscoring have been omitted.
This bill was recommended for passage by the Joint
Standing Committee on the Judiciary.