[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]


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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]
BILLING CODE 3510-60-S