The Domestic and Family Law Documents Exception to the Electronic Signatures in Global and National Commerce Act

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

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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.

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\

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\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

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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.

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\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.

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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.

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\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.

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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]

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