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