[Federal Register Volume 67, Number 170 (Tuesday, September 3, 2002)]
[Notices]
[Pages 56277-56279]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-22350]


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DEPARTMENT OF COMMERCE

National Telecommunications and Information Administration

Docket No. 020816196-2196-01


Request for Comments on the Court Documents Exception to the 
Electronic Signatures in Global and National Commerce Act

AGENCY: National Telecommunications and Information Administration 
(NTIA), U.S. Department of Commerce

ACTION: Notice, Request for Comments

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SUMMARY: Section 101 of the Electronic Signatures in Global and 
National Commerce Act, Pub. L. No. 106-229, codified at 15 U.S.C. 
Secs. 7001 et seq. (``ESIGN'' or ``the Act''), preserves the legal 
effect, validity, and enforceability of signatures and contracts 
relating to electronic transactions and electronic signatures used in 
the formation of electronic contracts. 15 U.S.C. Sec. 7001(a). Sections 
103 (a) and (b) of the Act, however, provide that the provisions of 
section 101 do not apply to contracts and records governed by statutes 
and regulations regarding probate and domestic law matters; state 
commercial law; consumer law covering utility services, real property 
defaults and foreclosures, and insurance benefits; product recall 
notices; and hazardous materials papers. Section 103 of the Act also 
requires the Secretary of Commerce, through the Assistant Secretary for 
Communications and Information, to review the operation of these 
exceptions to evaluate whether they continue to be necessary for 
consumer protection, and to make recommendations to Congress based on 
this evaluation. 15 U.S.C. Sec. 7003(c)(1). This Notice is intended to 
solicit comments from interested parties for purposes of this 
evaluation, specifically on the court documents and records exception 
to ESIGN. See 15 U.S.C. Sec. 7003(b)(1). NTIA will publish separate 
notices requesting comment on the other exceptions listed in section 
103 of the ESIGN Act.\1\
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    \1\ Comments submitted in response to Federal Register notices 
requesting comment on the other exceptions to ESIGN will be 
considered as part of the same section 103 evaluation and not as a 
separate review of the Act.

DATES: Written comments and papers are requested to be submitted on or 
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before November 4, 2002.

ADDRESSES: Written comments should be submitted to Josephine Scarlett, 
National Telecommunications and Information Administration, 14th Street

[[Page 56278]]

and Constitution Ave., N.W., Washington, DC 20230. Paper submissions 
should include a three and half inch computer diskette in HTML, ASCII, 
Word, or WordPerfect format (please specify version). Diskettes should 
be labeled with the name and organizational affiliation of the filer, 
and the name of the word processing program used to create the 
document. In the alternative, comments may be submitted electronically 
to the following electronic mail address: [email protected]. Comments submitted via electronic mail also should 
be submitted in one or more of the formats specified above.

FOR FURTHER INFORMATION CONTACT: For questions about this request for 
comment, contact: Josephine Scarlett, Attorney, Office of the Chief 
Counsel, NTIA, Room 4713, 14th Street and Constitution Ave., N.W., 
Washington, DC 20230, telephone (202) 482-1816 or electronic 
mail:[email protected]. Media inquiries should be directed to the 
Office of Public Affairs, National Telecommunications and Information 
Administration, at (202) 482-7002.

SUPPLEMENTARY INFORMATION:

Electronic Signatures in Global and National Commerce Act

    Congress enacted the Electronic Signatures in Global and National 
Commerce Act, Pub. L. No. 106-229, 114 Stat. 464 (2000), to facilitate 
the use of electronic records and signatures in interstate and foreign 
commerce and to remove uncertainty about the validity of contracts 
entered into electronically. Section 101 requires, among other things, 
that electronic signatures, contracts, and records be given legal 
effect, validity, and enforceability. Sections 103(a) and (b) of the 
Act provide that the requirements of section 101 shall not apply to 
contracts and records governed by statutes and regulations regarding: 
court documents and records; probate and domestic law matters; state 
commercial law; consumer law covering utility services, real property 
defaults and foreclosures, and insurance benefits; product recall 
notices; and hazardous materials documents.
    The statutory language providing for an exception to section 101 of 
ESIGN for court documents and notices is found in section 103(b) of the 
Act:

Sec. 103. [15 U.S.C. 7003] Specific Exceptions.

    * * * *
    (b) Additional Exceptions.-- The provisions of section 101 shall 
not apply to--
    (1) court orders or notices, or official court documents (including 
briefs,pleadings, and other writings) required to be executed in 
connection with court proceedings;
    * * * *
    The statutory language requiring the Assistant Secretary for 
Communications and Information to submit a report to Congress on the 
results of the evaluation of the section 103 exceptions to the ESIGN 
Act is found in section 103(c)(1) of the Act as set forth below.

(c) Review of Exceptions.--

    (1) Evaluation required.--The Secretary of Commerce, acting through 
the Assistant Secretary for Communications and Information, shall 
review the operation of the exceptions in subsections (a) and (b) to 
evaluate, over a period of 3 years, whether such exceptions continue to 
be necessary for the protection of consumers. Within 3 years after the 
date of enactment of this Act, the Assistant Secretary shall submit a 
report to Congress on the results of such evaluation.

Federal and State Court Electronic Document Systems

    Over the last few years, federal and state courts have established 
a substantial number of electronic systems for filing and public access 
to court documents. The federal courts have been a leader in this area, 
with the establishment of the Case Management/Electronic Case Files 
(CM/ECF) system. Through this system, attorneys can file court 
documents from their offices; judges, court staff, attorneys and the 
public have immediate access to most of those documents. Currently, 
nine district courts and twenty-five bankruptcy courts accept 
electronic filings. Over the next several years, additional courts are 
expected to do so. As of July 2002, more than 15,000 attorneys and 
others have filed court documents over the Internet. The federal courts 
have over 3 million cases, containing many millions of documents, 
available to the public over the Internet. See Administrative Office of 
the Courts, Case Management and Electronic Case Files (CM/ECF), 
available at http://www.uscourts.gov/cmecf/cmecf_faqs.html.
    State courts have also followed the trend set by the federal courts 
by allowing public access to court documents, and some states also have 
developed online filing and court document management systems. A report 
of the Maryland Judiciary's Committee on Access to Court Records, 
released July 5, 2002, states that 17 percent (or 9 states) of all 
states employ some type of computer access to court records, while 31 
percent offer ``limited-to-substantial'' free or inexpensive web access 
to court records. See ``State and Federal Policy on Electronic Access 
to Court Records,'' Subcommittee on Access to Court Records, at 2, 
available athttp://www.courts.state.md.us/access/finalreport2-05.pdf.

The ESIGN Section 103 Evaluation

    The ESIGN Act directs the Assistant Secretary of Communications and 
Information to conduct an evaluation of the exceptions set out in 
section 103 of the Act to determine whether the exceptions continue to 
be necessary for the protection of consumers, and to submit a report to 
Congress on the results of the evaluation no later than June 30, 2003. 
The Assistant Secretary for Communications and Information is the chief 
administrator of NTIA. As the President's principal advisor on 
telecommunications policies pertaining to the Nation's economic and 
technological advancement, NTIA is the executive branch agency 
responsible for developing and articulating domestic and international 
telecommunications policy.
    The ESIGN Section 103 evaluation of the court documents exception 
is intended to evaluate the current state of federal and state court 
electronic filing systems and electronic access for public access in 
preparation to report to Congress regarding whether the exception 
remains necessary for the protection of consumers. The purpose of this 
evaluation is not to review or analyze federal and state court 
regulations and rules for the purpose of recommending changes to the 
regulations, but rather to advise Congress of the state of law, 
practice, and procedure regarding this issue. Comments filed in 
response to this Notice should not be considered to have a connection 
with or impact on federal and state court procedures or rulemaking 
proceedings.

Invitation to Comment

    NTIA requests that interested parties, including members of the 
bar, courts and consumer representatives, submit written comment on any 
issue of fact, law, or policy that may assist in the evaluation of the 
court documents and records exception required by section 103(c). We 
invite comment on ESIGN generally to assist in evaluating the narrower 
issues associated with the substantive law governing the exception. The 
following questions are intended to provide guidance as to the specific 
subject areas expected to be examined as a part of the evaluation.

[[Page 56279]]

Commenters are invited to discuss any relevant issue, regardless of 
whether it is identified below.
    1. Describe the current developments with respect to electronic 
filing and electronic access procedures for court documents, if any, in 
federal, state or local rules and regulations.
    2. Discuss whether all types of federal or state court documents 
(pleadings, briefs, motions, orders, etc.) are available in an 
electronic format. If not, describe court documents that have been 
excluded from court filing or access systems and explain the basis for 
their exclusion.
    3. Discuss whether documents may be filed electronically in all 
types of cases (i.e., civil, criminal, bankruptcy) and are available 
for public access in electronic formats?
    4. If access to documents is limited based on case type, for what 
kinds of cases is access restricted (e.g., juvenile or adoption cases)? 
Please discuss what interests may be served by these access 
restrictions and whether it is necessary to retain the court documents 
exception to preserve and protect the interest(s).
    5. Discuss whether the current Uniform Electronic Transactions 
contain exceptions for court orders, notices, and documents.
    6. Describe any state or federal regulations, other than ESIGN and 
UETA, that preclude electronic filing or access to court documents.
    7. Given the current developments in federal court regulations with 
respect to electronic transactions in this area, is it necessary to 
retain the court documents exception to the ESIGN requirements? If so, 
what is the interest that this exception continues to serve or protect?
    8. Given the current development in state court regulations with 
respect to electronic transactions in this area, is it necessary to 
retain the court documents exception to the ESIGN requirements? If so, 
what is the interest that this exception continues to serve or protect?
    9. Discuss any unique issues surrounding the electronic filing, 
delivery, or service of court documents (such as authentication, 
privacy, and security) that should be considered in determining whether 
to eliminate the court documents exception from ESIGN.
    10. Are there technological issues that either enable or impair 
electronic filing and electronic access to court documents? Please 
describe in detail the available technology that enables electronic 
filing and electronic access to court documents and records.
    Please provide copies of studies, reports, opinions, research or 
other empirical data referenced in the responses.

    Dated: August 28, 2002.
Kathy D. Smith,
Chief Counsel, National Telecommunications and Information 
Administration.
[FR Doc. 02-22350 Filed 8-30-02; 8:45 am]
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