COMMITTEE SUBSTITUTE
FOR
H. B. 4293
(By Delegates Staton, Varner and Caputo)
(Originating in the Committee on the Judiciary)
[February 10, 1998]
A BILL to amend and reenact section ten, article two, chapter
two of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; and to amend chapter thirty-nine of
said code by adding thereto a new article, designated
article five, all relating generally to the authorization of
electronic signatures where written signatures are currently
required; establishing legislative findings; providing
definitions; allowing for the acceptance of certain
electronic signatures where a rule of law requires a
signature; authorizing the secretary of state and the state
auditor to propose legislative and emergency rules
authorizing governmental electronic signatures; authorizing
the secretary of state to be the digital key depository and
authority and authorizing the secretary of state to contract
with a private entity to serve as the digital key depository
and authority; allowing all governmental entities to participate in the electronic and digital signature program
with certain conditions and limitations; authorizing public
use of electronic signatures with certain requirements;
limitation of liability for the secretary of state; and
providing for admissibility of electronic signatures and
other electronic records legal proceeding as evidence.
Be it enacted by the Legislature of West Virginia:
That section ten, article two, chapter two of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted; and that chapter thirty-nine of said
code be amended by adding thereto a new article, designated
article five, all to read as follows:
CHAPTER 2. COMMON LAW, STATUTES, LEGAL HOLIDAYS, DEFINITIONS,
AND LEGAL CAPACITY
ARTICLE 2. LEGAL HOLIDAYS; SPECIAL MEMORIAL DAYS; CONSTRUCTION OF
STATUTES; DEFINITIONS.
§2-2-10. Rules for construction of statutes.
The following rules shall be observed in the construction of
statutes, unless a different intent on the part of the
Legislature be apparent from the context:
(a) A word importing the singular number only may be applied
to several persons or things, as well as to one person or thing;
a word importing the plural number only may be applied to one
person or thing as well as to several; and a word importing the
masculine gender only may be applied to females as well as males;
(b) Words purporting to give a joint authority to three or
more persons confer such authority upon a majority of them, and
not upon any less number;
(c) The words "written" or "in writing" include any
representation of words, letters or figures, whether by printing,
engraving, writing or otherwise. But when the signature of any
person is required, it must be in his or her own proper
handwriting, or his or her mark, attested, proved or
acknowledged; Provided, That unless a provision of this code
specifically provides otherwise, an electronic signature
satisfies this signature requirement if the electronic signature
meets the requirements of subsection (a), section three, article
five, chapter thirty nine of this code;
(d) The words "preceding," "succeeding" or "following" used
in reference to any section or sections of a chapter or statute,
mean next preceding, next succeeding or next following that in
which such reference is made, unless a different interpretation
be required by the context;
(e) An officer shall be deemed to have qualified when he or
she has done all that is required by law to be done before
proceeding to exercise the authority and discharge the duties of
his or her office;
(f) The words "the governor" are equivalent to "the
executive of the state" or "the person having the executive
power";
(g) "Justice" or "justices" as used in article one, chapter
fifty-one of this code and in other references to a member or
members of the supreme court of appeals shall mean and apply to a
judge or the judges of said court as provided for in the
constitution of the state. The word "justice" in any other
context is equivalent to the words "justice of the peace," and
the word "notary" is equivalent to "notary public";
(h) The word "state," when applied to a part of the United
States and not restricted by the context, includes the District
of Columbia and the several territories, and the words "United
States" also include the said district and territories;
(i) The word "person" or "whoever" shall include
corporations, societies, associations and partnerships, if not
restricted by the context;
(j) The words "personal representative" include the executor
of a will, the administrator of the estate of a deceased person,
the administrator of such estate with the will annexed, the
administrator de bonis non of such estate, whether there be a
will or not, the sheriff or other officer lawfully charged with
the administration of the estate of a deceased person, and every
other curator or committee of a decedent's estate for or against
whom suits may be brought for causes of action which accrued to
or against such decedent;
(k) The word "will" embraces a testament, a codicil, an
appointment by will or writing in the nature of a will in exercise of a power, also any other testamentary disposition;
(l) The word "judgment" includes decrees and orders for the
payment of money or the conveyance or delivery of land or
personal property, or some interest therein, or any undertaking,
bond or recognizance which has the legal effect of a judgment;
(m) The words "under disability" include persons under the
age of eighteen years, insane persons, and convicts while
confined in the penitentiary;
(n) The words "insane person" include everyone who has
mental illness as defined in section two, article one, chapter
twenty-seven of this code;
(o) The word "convict" means a person confined in the
penitentiary of this or any other state, or of the United States;
(p) The word "land" or "lands" and the words "real estate"
or "real property" include lands, tenements and hereditaments,
all rights thereto and interests therein except chattel
interests;
(q) The words "personal estate" or "personal property"
include goods, chattels, real and personal, money, credits,
investments and the evidences thereof;
(r) The word "property" or "estate" embraces both real and
personal estate;
(s) The word "offense" includes every act or omission for
which a fine, forfeiture or punishment is imposed by law;
(t) The expression "laws of the state" includes the constitution of the state and the constitution of the United
States, and treaties and laws made in pursuance thereof;
(u) The word "town" includes a city, village or town, and
the word "council," any body or board, whether composed of one or
more branches, who are authorized to make ordinances for the
government of a city, town or village;
(v) When a council of a town, city or village, or any board,
number of persons or corporations, are authorized to make
ordinances, bylaws, rules, regulations or orders, it shall be
understood that the same must be consistent with the laws of this
state;
(w) The words "county court" include any existing tribunal
created in lieu of a county court; the words "commissioner of the
county court" and "county commissioner" mean, and have reference
to, the commissioners, or one of them, composing the county
court, in pursuance of section twenty-two, article eight of the
constitution, as amended, or any existing tribunal created in
lieu of a county court;
(x) The word "horse" embraces a stallion, a mare and a
gelding;
(y) The words "railroad" and "railway" shall be construed by
the courts of this state to mean the same thing in law; and, in
any proceeding wherein a railroad company or a railway company is
a party, it shall not be deemed error to call a railroad company
a railway company or vice versa; nor shall any demurrer, plea or any other defense be set up to a motion, pleading or indictment
in consequence of such misdescription;
(z) The sectional headings or headlines of the several
sections of this code printed in black-faced type are intended as
mere catchwords to indicate the contents of the section and shall
not be deemed or taken to be titles of such sections, or as any
part of the statute, and, unless expressly so provided, they
shall not be so deemed when any of such sections, including the
headlines, are amended or reenacted;
(aa) The words "infant" and "minor" mean persons under the
age of eighteen years as such words are used in this code or in
rules and regulations promulgated by the supreme court of
appeals;
(bb) A statute is presumed to be prospective in its
operation unless expressly made retrospective;
(cc) Unless there is a provision in a section, article or
chapter of this code specifying that the provisions thereof shall
not be severable, the provisions of every section, article or
chapter of this code, whether enacted before or subsequent to the
effective date of this subdivision, shall be severable so that if
any provision of any such section, article or chapter is held to
be unconstitutional or void, the remaining provisions of such
section, article or chapter shall remain valid, unless the court
finds the valid provisions are so essentially and inseparably
connected with, and so dependent upon, the unconstitutional or void provision that the court cannot presume the Legislature
would have enacted the remaining valid provisions without the
unconstitutional or void one, or unless the court finds the
remaining valid provisions, standing alone, are incomplete and
are incapable of being executed in accordance with the
legislative intent: Provided, That if any such section, article
or chapter of this code has its own severability clause, then
such severability clause shall govern and control with respect to
such section, article or chapter in lieu of the provisions of
this subdivision. The provisions of this subdivision shall be
fully applicable to all future amendments or additions to this
code, with like effect as if the provisions of this subdivision
were set forth in extenso in every such amendment or addition and
were reenacted as a part thereof, unless such amendment or
addition contains its own severability clause;
(dd) A reference to any section, article or chapter of this
code applies to all reenactments, revisions or amendments
thereof;
(ee) If a statute refers to a series of numbers or letters,
the first and the last numbers or letters in the series are
deemed to be included;
(ff) The words "board of regents," wherever they appear in
the code, means the board of trustees created by section one,
article one, chapter eighteen-b of this code and the board of
directors created by section one, article one, chapter eighteen-b of this code unless the term is used in relation to activities
conducted solely by an institution or institutions governed by
article two, chapter eighteen-b of this code in which case it
only means the board of trustees, or where the term is used in
relation to activities conducted solely by an institution or
institutions governed by article three, chapter eighteen-b of the
code in which case it only means the board of directors.
CHAPTER 39. RECORDS AND PAPERS.
ARTICLE 5. ELECTRONIC SIGNATURES AUTHORIZATION ACT.
39-5-1. Legislative findings; statement of purpose.
The Legislature finds that the rapid and secure conveyance
of signed written transactions, messages and official documents
is essential to effective and economical conduct of commercial,
governmental and personal affairs; and that technology is
available to allow instantaneous transmission of documents and to
provide secure means of authorization through electronic
signatures. Therefore, it is the purpose of this Act to
facilitate and promote electronic commerce and online government
by clarifying the legal status of electronic records and
electronic signatures in the context of writing and signing
requirements imposed by law; to permit and encourage the
continued expansion of electronic commerce and online government
through the operation of free market forces rather than
proscriptive legislation; to promote public confidence in the
validity, integrity and reliability of electronic commerce and online government; and to promote the development of the legal
and business infrastructure necessary to support and encourage
electronic commerce and online government.
39-5-2. Definitions.
As used in this article, the following words shall have the
following meanings:
(a)"Certificate" means a computer-based record that:
(1) Identifies the certification authority issuing it;
(2) Names or identifies its subscriber;
(3) Contains the subscriber's public key; and
(4) Is digitally signed by the certification authority
issuing it.
(b)"Certification authority" means a person who issues a
certificate.
(c) "Electronic" means electrical, digital, magnetic,
optical, electromagnetic, or any other technology that is similar
to these technologies.
(d) "Electronic record" means a record generated,
communicated, received, or stored by electronic means.
(e) "Electronic signature" means any identifier or
authentication technique attached to or logically associated with
an electronic record that is intended by the person using it to
have the same force and effect as a manual signature. Electronic
signatures include, but are not limited to the following:
(1) A "digitized signature" which consists of a handwritten signature entered on a recording device utilizing electronic
recording software which simultaneously converts the image
created to a digital record and attaches it to the electronic
document to which it relates;
(2) A "digital mark" which 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
(3) A "digital signature" which 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.
(f) "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.
39-5-3. Acceptance of electronic signatures generally.
(a) Where a rule of law requires a signature, or provides
for certain consequences in the absence of a signature, that rule
may be satisfied by an electronic signature, if:
(1) The type of electronic signature provided is authorized
according to the provisions of this article by the person or
governmental entity receiving the message;
(2) The original digitized signature, digital mark or
digital signature was affixed by the signer with the intention of
signing the message, or the facsimile digitized signature was
affixed by the signer's designee with the authority of the
signer; and
(3) The recipient has no knowledge or notice that the signer
either:
(A) Breached a duty; or
(B) Does not rightfully hold the access code used to affix
the digital mark or the private key used to affix the digital
signature.
(b) Nothing in this article:
(1) Precludes an electronic signature from being valid as a
signature under other applicable law;
(2) May be construed to obligate a recipient or any other
person asked to rely on an electronic signature to accept an
electronic signature or to respond to an electronic message
containing an electronic signature; or
(3) Precludes the recipient of an electronic signature or an
electronic message containing an electronic signature from
establishing the conditions under which the recipient will accept
an electronic signature.
39-5-4. Duties of the secretary of state and state auditor; state
agencies use of electronic signatures.
(a) The secretary of state and state auditor shall propose
joint 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. These
rules shall include minimum standards for secure transactions to
assure confidence and efficiency in legally binding electronic
document transactions. These rules may be amended from time to
time to keep the rules current with new developments in
technology and improvements in secured transaction processes.
The Legislature also authorizes these rules to be initially
promulgated as emergency rules pursuant to article three, chapter
twenty-nine-a of this code.
(b) The secretary of state is also 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 reciprocity
agreements with all state and federal governmental entities to
promote the efficient governmental use of electronic
transactions. The secretary of state may also propose
legislative rules for issuing certificates that bind public keys to individuals, and other electronic transaction authentication
devices as provided for in section three. The secretary of state
is further authorized to contract with an 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
assure the certification authority will meet the requirements of
this Act and any rules promulgated pursuant to this subsection.
(c) Nothing contained in this Act shall 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 shall limit the secretary of state and
state auditor in adopting by legislative rule, alternative
technologies to authorize electronic signatures.
39-5-5. 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 withdrawal 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 entities 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 an manner
prescribed by law, an ordinance, rule or official policy, but in
no case for less than thirty days before adoption.
(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 for adoption.
39-5-6. Acceptance of electronic signatures by persons other
than governmental entities.
(a) Where a commercial or other transaction between persons other than governmental entities consists in part of a message
which requires the signature of one or more parties to the
transaction, an electronic signature shall be a valid signature
if authorized and accepted by the receiving party and made in
good faith by the signing party or parties.
(b) The receiving party may determine the type or types of
electronic signatures which will be accepted for particular types
of messages or transactions.
(1) The receiving party shall give notice to the prospective
signing party of the type or types of electronic signatures which
will be accepted for the particular type of message or
transaction; and
(2) The receiving party may confirm to the signer the
receipt and acceptance of an electronic message containing and
electronic signature.
39-5-7. Secretary of state; liability.
The secretary of state, serving as authority and repository
for governmental entities for signature keys 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.
39-5-8. Admissibility into evidence.
In any legal proceeding, nothing in the application or the
rules of evidence shall apply so as to deny the admissibility of
an electronic record or electronic signature into evidence solely
on the ground that it is an electronic record or electronic
signature, or, on the grounds that it is not in its original form
or is not an original.
NOTE: The purpose of this bill is to authorize electronic
signatures and authorize the secretary of state and state auditor
to establish procedures for the use of electronic signatures for
governmental transactions; and further, allow the Secretary of
State to establish a digital key certification authority for
secure authorization of electronic signatures for all appropriate
transactions.
The provisions of Article Five, Chapter Thirty-nine are new,
so strike-throughs and underscoring have been omitted from those
sections.