ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 204
(By Senators Snyder, Fanning, McCabe, Oliverio, Ross, Deem and
Minard)
____________
[Originating in the Committee on the Judiciary; reported March
30, 2001.]
____________
A BILL to repeal article thirty-nine, chapter five of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended; to amend said code by adding thereto a new chapter,
designated chapter thirty-nine-a; and to amend chapter forty-
six-a of said code by adding thereto a new article, designated
article six-i, all 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 enforceability 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; providing definitions; 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; providing that the secretary of state
is not liable for any transaction compromised by an illegal act or inappropriate use of an electronic signature; providing
for electronic response to electronic notices; explaining when
an electronic record is actually received; providing for
electronic transferable records; explaining relationship to
federal law; and providing for waiver.
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; that said code be amended by adding thereto a new
chapter, designated chapter thirty-nine-a; and that chapter forty-
six-a of said code be amended by adding thereto a new article,
designated article six-i, all 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
transactions act.
§39A-1-2. Definitions.
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
transaction.
(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
it.
(4) "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.
(5) "Electronic" means relating to technology having
electrical, digital, magnetic, wireless, optical, electromagnetic
or similar capabilities.
(6) "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.
(7)"Electronic record" means a record created, generated,
sent, communicated, received or stored by electronic means.
(8) "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.
(9) "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.
(10) "Information" means data, text, images, sounds, codes,
computer programs, software, databases or the like.
(11) "Information processing system" means an electronic
system for creating, generating, sending, receiving, storing,
displaying or processing information.
(12) "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.
(13) "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.
(14) "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.
(15) "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.
(16) "Transaction" means an action or set of actions occurring
between two or more persons relating to the conduct of business,
commercial or governmental affairs.
§39A-1-3. Scope.
(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", Public Law No. 106-229, 15
U.S.C. 7001.
(b) Except as otherwise provided in subsection (c) of this
article, 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 (c) of this article to the extent it is governed
by a law other than those specified in subsection (c) of this
article.
(e) This title does not:
(1) Limit, alter, or otherwise affect any requirement imposed
by a statute, regulation, or rule of law relating to the rights and
obligations of persons under such statute, regulation or rule of
law other than a requirement that contracts or other records be written, signed, or in nonelectronic form; or
(2) Require any person to agree to use or accept electronic
records or electronic signatures, other than a governmental agency
with respect to a record other than a contract to which it is a
party.
(f) If a statute, regulation or other rule of law requires
that information relating to a transaction or transactions in or
affecting interstate or foreign commerce be provided or made
available to a consumer in writing, the use of an electronic record
to provide or make available (whichever is required) such
information satisfies the requirement that such information be in
writing if:
(1) The consumer has affirmatively consented to such use and
has not withdrawn such consent;
(2) The consumer, prior to consenting, is provided with a
clear and conspicuous statement;
(A) Informing the consumer of: (i) Any right or option of the
consumer to have the record provided or made available on paper or
in nonelectronic form; and (ii) the right of the consumer to
withdraw the consent to have the record provided or made available
in an electronic form and of any conditions, consequences (which
may include termination of the parties' relationship) or fees in the event of such withdrawal;
(B) Informing the consumer of whether the consent applies: (i)
Only to the particular transaction which gave rise to the
obligation to provide the record; or (ii) to identified categories
of records that may be provided or made available during the course
of the parties' relationship;
(C) Describing the procedures the consumer must use to
withdraw consent as provided in paragraph (A), subdivision (2) of
this subsection and to update information needed to contact the
consumer electronically; and
(D) Informing the consumer: (i) How, after consent, the
consumer may upon request, obtain a paper copy of an electronic
record; and (ii) whether any fee will be charged or such copy;
(3) The consumer:
(A) Prior to consenting, is provided with a statement of the
hardware and software requirements for access to and retention of
the electronic records; and
(B) Consents electronically, or confirms his or her consent
electronically, in a manner that reasonably demonstrates that the
consumer can access information in the electronic form that will be
used to provide the information that is the subject of the consent;
and
(4) After the consent of a consumer in accordance with
subdivision (1) of this subsection, if a change in the hardware or
software requirements needed to access or retain electronic records
creates a material risk that the consumer will not be able to
access or retain a subsequent electronic record that was the
subject of the consent, the person providing the electronic record:
(A) Provides the consumer with a statement of: (i) The revised
hardware and software requirements for access to and retention of
the electronic records; and (ii) the right to withdraw consent
without the imposition of any fees for such withdrawal and without
the imposition of any condition or consequence that was not
disclosed under subparagraph (ii), paragraph (A), subdivision (2)
of this subsection; and
(B) again complies with subdivision (3).
(g) Other rights of preservation of consumer protection and
verification or acknowledgment provide that:
(1) Nothing in this article affects the content or timing of
any disclosure or other record required to be provided or made
available to any consumer under any statute, regulation or other
rule of law.
(2) If a law that was enacted prior to this article expressly
requires a record to be provided or made available by a specified method that requires verification or acknowledgment of receipt, the
record may be provided or made available electronically only if the
method used provides verification or acknowledgment of receipt
(whichever is required).
(h) The legal effectiveness, validity or enforceability of any
contract executed by a consumer shall not be denied solely because
of the failure to obtain electronic consent or confirmation of
consent by that consumer in accordance with paragraph (B),
subdivision (3), subsection (f) of this section.
(i) Withdrawal of consent by a consumer shall not affect the
legal effectiveness, validity or enforceability of electronic
records provided or made available to that consumer in accordance
with subsection (f) of this section prior to implementation of the
consumer's withdrawal of consent. A consumer's withdrawal of
consent shall be effective within a reasonable period of time after
receipt of the withdrawal by the provider of the record. Failure
to comply with subdivision (4), subsection (f) of this section may,
at the election of the consumer, be treated as a withdrawal of
consent for purposes of this subsection.
(j) This subsection does not apply to any records that are
provided or made available to a consumer who has consented prior to
the effective date of this title to receive such records in electronic form as permitted by any statute, regulation or other
rule of law.
(k) An oral communication or a recording of an oral
communication shall not qualify as an electronic record for
purposes of this subsection except as otherwise provided under
applicable law.
(l) 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
form.
(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
agreement.
(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
applicable law.
§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
practices; and
(3) To effectuate its general purpose to make uniform the law
with respect to the subject of this article among states enacting it.
§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
enforceability solely because it is in electronic form.
(b) A contract may not be denied legal effect or
enforceability 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
records.
(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 subdivision (2),
subsection (d) of this section, 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
agreement, but:
(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) of this section that the information be in the
form of an electronic record capable of retention may also be
varied by agreement; and
(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
other law.
§39A-1-9. Attribution and effect of electronic record and
electronic signature.
(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
attributable.
(b) The effect of an electronic record or electronic signature
attributed to a person under subsection (a) of this section 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
apply:
(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
individual:
(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 subdivision (1) nor subdivision (2) of this
subsection applies, the change or error has the effect provided by
other law, including the law of mistake, and the parties' contract,
if any.
(4) Subdivisions (2) and (3) of this subsection 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) of this section does not apply to any information
the sole purpose of which is to enable the record to be sent,
communicated or received.
(c) A person may satisfy subsection (a) of this section by
using the services of another person if the requirements of that
subsection are satisfied.
(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)
of this section.
(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
subsection (a) of this section.
(f) A record retained as an electronic record in accordance
with subsection (a) of this section 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 purpose.
(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
agreements.
(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
performance.
(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;
and
(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) of this section 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) of this section.
(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) of
this section even if no individual is aware of its receipt.
(f) Receipt of an electronic acknowledgment from an
information processing system described in subsection (b) of this
section establishes that a record was received but, by itself, does not establish that the content sent corresponds to the content
received.
(g) If a person is aware that an electronic record purportedly
sent under subsection (a) of this section, or purportedly received
under subsection (b) of this section, 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
record that:
(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) of this section 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 subdivisions (4), (5) and (6) of this subsection,
unalterable;
(2) The authoritative copy identifies the person asserting
control as:
(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
copy; and
(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
transferable record.
ARTICLE 2. DIGITAL SIGNATURES; STATE ELECTRONIC RECORDS AND
TRANSACTIONS
§39A-2-1. Definitions.
(1) "Certification authority" means a person who issues a
certificate.
(2) "Contract" means the total legal obligation resulting from
the parties' agreement as affected by this article and other
applicable law.
(3) "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
(4) "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.
§39A-2-2. 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
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.
§39A-2-3. Duties of the secretary of state; state agencies use of
electronic signatures.
(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
signatures.
§39A-2-4. 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.
CHAPTER 46A. WEST VIRGINIA CONSUMER CREDIT AND PROTECTION ACT.
ARTICLE 6I. CONSUMER PROTECTIONS IN ELECTRONIC TRANSACTIONS.
§46A-6I-1. Electronic response to electronic notices.
When a consumer is required to provide notice to exercise or
preserve the consumer's rights under any law, the consumer may
exercise or preserve that right in the same manner in which the
consumer was provided with notice of that right.
§46A-6I-2. Receipt of electronic record.
Notwithstanding the provisions of article one, chapter thirty-
nine-a of this code, in a consumer transaction, an electronic
record is not sent to or received by the consumer if the sender is
aware that the consumer did not actually receive the electronic
record or did not actually receive the electronic record in a
manner allowing the record to be opened and read by the consumer.
§46A-6I-3. Electronic transferable records.
Notwithstanding the provisions of article one, chapter thirty-
nine-a of this code, the following rules apply to transferable
records of transactions involving consumers:
(1) If payment is made to a person that the system indicates
is in control of a transferable record, the obligor is discharged
to the extent of the payment;
(2) A transferable record remains subject to the defenses of
alteration and unauthorized signature whether or not those defenses
are apparent on the face of the record;
(3) A record does not qualify as a transferable record if a
system is unable to reliably establish the person entitled to
enforce the record or the system permits the creation of multiple
copies that appear to be authoritative copies;
(4) A consumer is entitled, on request and without charge, to
a printed or printable copy of a transferable record at any time.
§46A-6I-4. Relationship with federal law.
The requirements of this article are designed to supplement,
not to modify, limit, or supersede, the requirements of the federal
Electronic Signatures in Global and National Commerce Act.
§46A-6I-5. Waiver.
In consumer transactions, the rules and requirements set out
in this article may not be changed by agreement of the parties.
________
(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. The federal
electronic signatures consumer provisions and some additional
consumer protections have been included in the committee
substitute. This bill as introduced was recommended for passage by
the joint committee on the judiciary.
These provisions are new; therefore, strike-throughs and
underscoring have been omitted.)