REPORT TITLE:



DESCRIPTION:


 
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HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO THE UNIFORM ELECTRONIC TRANSACTIONS ACT.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  The Hawaii Revised Statutes is amended by adding
 
 2 a new chapter to be appropriately designated and to read as
 
 3 follows:
 
 4                             "CHAPTER
 
 5                UNIFORM ELECTRONIC TRANSACTIONS ACT
 
 6         -1  Short title.  This chapter may be cited as the
 
 7 Uniform Electronic Transactions Act.
 
 8         -2  Definitions.  In this chapter:
 
 9      "Agreement" means the bargain of the parties in fact, as
 
10 found in their language or inferred from other circumstances and
 
11 from rules, regulations, and procedures given the effect of
 
12 agreements under laws otherwise applicable to a particular
 
13 transaction.
 
14      "Automated transaction" means a transaction conducted or
 
15 performed, in whole or in part, by electronic means or electronic
 
16 records, in which the acts or records of one or both parties are
 
17 not reviewed by an individual in the ordinary course in forming a
 
18 contract, performing under an existing contract, or fulfilling an
 
19 obligation required by the transaction.
 

 
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 1      "Computer program" means a set of statements or instructions
 
 2 to be used directly or indirectly in an information processing
 
 3 system in order to bring about a certain result.
 
 4      "Contract" means the total legal obligation resulting from
 
 5 the parties' agreement as affected by this chapter and other
 
 6 applicable law.
 
 7      "Electronic" means relating to technology having electrical,
 
 8 digital, magnetic, wireless, optical, electromagnetic, or similar
 
 9 capabilities.
 
10      "Electronic agent" means a computer program or an electronic
 
11 or other automated means used independently to initiate an action
 
12 or respond to electronic records or performances in whole or in
 
13 part, without review or action by an individual.
 
14      "Electronic record" means a record created, generated, sent,
 
15 communicated, received, or stored by electronic means.
 
16      "Electronic signature" means an electronic sound, symbol, or
 
17 process attached to or logically associated with a record and
 
18 executed or adopted by a person with the intent to sign the
 
19 record.
 
20      "Governmental agency" means an executive, legislative, or
 
21 judicial agency, department, board, commission, authority,
 
22 institution, or instrumentality of the federal government or of a
 
23 state or of a county, municipality, or other political
 

 
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 1 subdivision of a state.
 
 2      "Information" means data, text, images, sounds, codes,
 
 3 computer programs, software, databases, or the like.
 
 4      "Information processing system" means an electronic system
 
 5 for creating, generating, sending, receiving, storing,
 
 6 displaying, or processing information.
 
 7      "Person" means an individual, corporation, business trust,
 
 8 estate, trust, partnership, limited liability company,
 
 9 association, joint venture, governmental agency, public
 
10 corporation, or any other legal or commercial entity.
 
11      "Record" means information that is inscribed on a tangible
 
12 medium or that is stored in an electronic or other medium and is
 
13 retrievable in perceivable form.
 
14      "Security procedure" means a procedure employed for the
 
15 purpose of verifying that an electronic signature, record, or
 
16 performance is that of a specific person or for detecting changes
 
17 or errors in the information in an electronic record.  The term
 
18 includes a procedure that requires the use of algorithms or other
 
19 codes, identifying words or numbers, encryption, or callback or
 
20 other acknowledgment procedures.
 
21      "State" means a state of the United States, the District of
 
22 Columbia, Puerto Rico, the United States Virgin Islands, or any
 
23 territory or insular possession subject to the jurisdiction of
 

 
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 1 the United States.  The term includes an Indian tribe or band, or
 
 2 Alaskan native village, which is recognized by federal law or
 
 3 formally acknowledged by a state.  "This State" refers to the
 
 4 State of Hawaii.
 
 5      "Transaction" means an action or set of actions occurring
 
 6 between two or more persons relating to the conduct of business,
 
 7 commercial, or governmental affairs.
 
 8       -3 Scope.(a)  Except as otherwise provided in
 
 9 subsection (b), this chapter applies to electronic records and
 
10 electronic signatures relating to a transaction.
 
11      (b)  This chapter does not apply to a transaction to the
 
12 extent it is governed by:
 
13      (1)  A law governing the creation and execution of wills,
 
14           codicils, or testamentary trusts;
 
15      (2)  The Uniform Commercial Code other than sections
 
16           490:1-107 and 490:1-206, article 2, and article 2A; and
 
17      (3)  Chapters 476, 481B, 481C, 481F, 521, 666, 667, part II
 
18           of chapter 290, part III of chapter 431:10A, parts III
 
19           and IV of chapter 431:10A, part V of chapter 431:10A,
 
20           part IV of chapter 514A, part V of chapter 622, and
 
21           sections 207-13, 209-9, 290-11, 386-127, 392-50,
 
22           431:1-105, 431:8-307, 431:10-109, 431:10-206,
 
23           431:10-208, 431:10-211.5, 431:10-214, 431:10-224,
 

 
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 1           431:10-228, 431:10-229, 431:10-235, 431:10A-106,
 
 2           431:10A-115, 431:10A-116, 431:10A-118, 431:10B-107,
 
 3           431:10C-112, 431:10C-112.5, 431:10C-115.6, 431:10C-301,
 
 4           431:10C-302, 431:10C-304, 431:10C-311, 431:10C-313,
 
 5           431:10D-213, 431:10D-214, 431:10H-111, 431:10H-112,
 
 6           431:10H-205, 431:10H-208, 431:10H-209, 431:10H-210,
 
 7           431:10H-211, 431:10H-212, 431:10H-214, 431:10H-215,
 
 8           431:10H-216, 431:10H-217, 431:10H-218, 431:10H-221,
 
 9           431:10H-304, 431:12-106, 431:12-109, 431:14-110,
 
10           431:14-110.5, 431:15-311, 431:15-325, 431:16-108,
 
11           431:16-208, 431:21-109, 431:21-110, 431K-3, 431K-8,
 
12           432:1-101.5, 432:1-602,  432:1-602.6, 432:1-607,
 
13           432:2-202, 432:2-302, 432:2-305(a), 432:2-305(d),
 
14           432:2-402, 432:2-404, 432D-6, 432D-25, 432D-26, 432E-7,
 
15           437-14, 437B-11, 437B-13, 437B-15, 437D-5, 437D-6,
 
16           437D-7, 437D-8, 437D-8.4, 437D-11, 437D-14(e),
 
17           437D-17.5, 444-25.5, 468L-4, 468L-6, 468L-7, 468M-8,
 
18           476-3, 476-4, 478-4, 478-5, 478-8, 478-11.5, 481H-4,
 
19           481I-3(e), 481I-3(f), 481I-3(g) 481I-3(k), 481J-2 ,
 
20           481J-3, 481J-4, 481J-5, 481J-6, 481K-2, 481K-4, 481L-2,
 
21           481L-3, 481M-2, 481M-7, 481M-8, 481M-13, 481M-14,
 
22           481M-16, 481M-17, 481N, 481P-2, 481P-3, 481P-4, 482E-3,
 
23           484-4(2), 484-8.7, 484-8.8, 485-24, 486K-2, 486K-3,
 

 
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 1           486K-4, 486K-5, 486K-7, 486N-3, 486N-4, 486N-6, 486N-7,
 
 2           486N-8, 486N-8.5, 486N-9, 487A-1, 506-8, 506-9, 508-1,
 
 3           508D-4, 508D-5, 508D-6, 508D-7, 508D-10, 508D-12,
 
 4           508D-13, 514E-8, 514E-9, 514E-9.5, 514E-11.1,
 
 5           514E-11.4, 514E-17, 514E-18, 514E-19, 516-64, 516-67,
 
 6           516-69, 516-70, 516-71, and 516D-11, and Act 137,
 
 7           Session Laws of Hawaii (SLH) 1999, Act 146, SLH 1999,
 
 8           Act 267, SLH 1999.
 
 9      (c)  This chapter applies to an electronic record or
 
10 electronic signature otherwise excluded from the application of
 
11 this chapter under subsection (b) when used for a transaction
 
12 subject to a law other than those specified in subsection (b).
 
13      (d)  A transaction subject to this chapter is also subject
 
14 to other applicable substantive law.
 
15         -4  Prospective application.  This chapter applies to
 
16 any electronic record or electronic signature created, generated,
 
17 sent, communicated, received, or stored on or after the effective
 
18 date of this chapter.
 
19         -5  Use of electronic records and electronic signatures;
 
20 variation by agreement.(a)  This chapter does not require a
 
21 record or signature to be created, generated, sent, communicated,
 
22 received, stored, or otherwise processed or used by electronic
 
23 means or in electronic form.
 

 
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 1      (b)  This chapter applies only to transactions between
 
 2 parties each of which has agreed to conduct transactions by
 
 3 electronic means.  Whether the parties agree to conduct a
 
 4 transaction by electronic means is determined from the context
 
 5 and surrounding circumstances, including the parties' conduct.
 
 6 Except for a separate and optional agreement the primary purpose
 
 7 of which is to authorize a transaction to be conducted by
 
 8 electronic means, an agreement to conduct a transaction
 
 9 electronically may not be contained in a standard form contract
 
10 that is not an electronic record.  An agreement in such a
 
11 standard form contract may not be conditioned upon an agreement
 
12 to conduct transactions electronically.  An agreement to conduct
 
13 a transaction electronically cannot be inferred solely from the
 
14 fact that a party has used electronic means to pay an account or
 
15 register purchase or warranty.  This subsection cannot be varied
 
16 by agreement.
 
17      (c)  A party that agrees to conduct a transaction by
 
18 electronic means may refuse to conduct other transactions by
 
19 electronic means.  If a seller sells goods or services by both
 
20 electronic and nonelectronic means and a buyer purchases the
 
21 goods or services by conducting the transaction electronically,
 
22 the buyer may refuse to conduct further transactions regarding
 
23 the goods and services electronically.  The right granted by this
 

 
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 1 subsection may not be waived by agreement.
 
 2      (d)  Except as otherwise provided in this chapter, the
 
 3 effect of any of its provisions may be varied by agreement.  The
 
 4 presence in certain provisions of this chapter of the words
 
 5 "unless otherwise agreed", or words of similar import, does not
 
 6 imply that the effect of other provisions may not be varied by
 
 7 agreement.
 
 8      (e)  Whether an electronic record or electronic signature
 
 9 has legal consequences is determined by this chapter and other
 
10 applicable law.
 
11         -6  Construction and application.  This chapter must be
 
12 construed and applied:
 
13      (1)  To facilitate electronic transactions consistent with
 
14           other applicable law;
 
15      (2)  To be consistent with reasonable practices concerning
 
16           electronic transactions and with the continued
 
17           expansion of those practices; and
 
18      (3)  To effectuate its general purpose to make uniform the
 
19           law with respect to the subject of this chapter among
 
20           states enacting it.
 
21         -7  Legal recognition of electronic records, electronic
 
22 signatures, and electronic contracts.(a)  A record or signature
 
23 may not be denied legal effect or enforceability solely because
 

 
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 1 it is in electronic form.
 
 2      (b)  A contract may not be denied legal effect or
 
 3 enforceability solely because an electronic record was used in
 
 4 its formation.
 
 5      (c)  If a law requires a record to be in writing, an
 
 6 electronic record satisfies the law.
 
 7      (d)  If a law requires a signature, an electronic signature
 
 8 satisfies the law.
 
 9         -8  Provision of information in writing; presentation of
 
10 records.(a)  If parties have agreed to conduct a transaction by
 
11 electronic means and a law requires a person to provide, send, or
 
12 deliver information in writing to another person, the requirement
 
13 is satisfied if the information is provided, sent, or delivered,
 
14 as the case may be, in an electronic record capable of retention
 
15 by the recipient at the time of receipt.  An electronic record is
 
16 not capable of retention by the recipient if the sender or its
 
17 information processing system inhibits the ability of the
 
18 recipient to print or store the electronic record.
 
19      (b)  If a law other than this chapter requires a record (i)
 
20 to be posted or displayed in a certain manner, (ii) to be sent,
 
21 communicated, or transmitted by a specified method, or (iii) to
 
22 contain information that is formatted in a certain manner, the
 
23 following rules apply:
 

 
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 1      (1)  The record must be posted or displayed in the manner
 
 2           specified in the other law;
 
 3      (2)  Except as otherwise provided in subsection (d)(2), the
 
 4           record must be sent, communicated, or transmitted by
 
 5           the method specified in the other law; and
 
 6      (3)  The record must contain the information formatted in
 
 7           the manner specified in the other law.
 
 8      (c)  If a sender inhibits the ability of a recipient to
 
 9 store or print an electronic record, the electronic record is not
 
10 enforceable against the recipient.
 
11      (d)  The requirements of this section may not be varied by
 
12 agreement, but:
 
13      (1)  To the extent a law other than this chapter requires
 
14           information to be provided, sent, or delivered in
 
15           writing but permits that requirement to be varied by
 
16           agreement, the requirement under subsection (a) that
 
17           the information be in the form of an electronic record
 
18           capable of retention may also be varied by agreement;
 
19           and
 
20      (2)  A requirement under a law other than this chapter to
 
21           send, communicate, or transmit a record by first-class
 
22           mail, postage prepaid, may be varied by agreement to
 
23           the extent permitted by the other law.
 

 
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 1         -9  Attribution and effect of electronic record and
 
 2 electronic signature.(a)  An electronic record or electronic
 
 3 signature is attributable to a person if it was the act of the
 
 4 person.  The act of the person may be shown in any manner,
 
 5 including a showing of the efficacy of any security procedure
 
 6 applied to determine the person to which the electronic record or
 
 7 electronic signature was attributable.
 
 8      (b)  The effect of an electronic record or electronic
 
 9 signature attributed to a person under subsection (a) is
 
10 determined from the context and surrounding circumstances at the
 
11 time of its creation, execution, or adoption, including the
 
12 parties' agreement, if any, and otherwise as provided by law.
 
13         -10  Effect of change or error.  If a change or error in
 
14 an electronic record occurs in a transmission between parties to
 
15 a transaction, the following rules apply:
 
16      (1)  If the parties have agreed to use a security procedure
 
17           to detect changes or errors and one party has conformed
 
18           to the procedure, but the other party has not, and the
 
19           nonconforming party would have detected the change or
 
20           error had that party also conformed, the conforming
 
21           party may avoid the effect of the changed or erroneous
 
22           electronic record.
 
23      (2)  In an automated transaction involving an individual,
 

 
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 1           the individual may avoid the effect of an electronic
 
 2           record that resulted from an error made by the
 
 3           individual in dealing with the electronic agent of
 
 4           another person if the electronic agent did not provide
 
 5           an opportunity for the prevention or correction of the
 
 6           error and, at the time the individual learns of the
 
 7           error, the individual:
 
 8           (A)  Promptly notifies the other person of the error
 
 9                and that the individual did not intend to be bound
 
10                by the electronic record received by the other
 
11                person;
 
12           (B)  Takes reasonable steps, including steps that
 
13                conform to the other person's reasonable
 
14                instructions, to return to the other person or, if
 
15                instructed by the other person, to destroy the
 
16                consideration received, if any, as a result of the
 
17                erroneous electronic record; and
 
18           (C)  Has not used or received any benefit or value from
 
19                the consideration, if any, received from the other
 
20                person.
 
21      (3)  If neither paragraph (1) nor paragraph (2) applies, the
 
22           change or error has the effect provided by other law,
 
23           including the law of mistake, and the parties'
 

 
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 1           contract, if any.
 
 2      (4)  Paragraphs (2) and (3) may not be varied by agreement.
 
 3         -11  Notarization and acknowledgment.  If a law requires
 
 4 a signature or record to be notarized, acknowledged, verified, or
 
 5 made under oath, the requirement is satisfied if the electronic
 
 6 signature of the person authorized to perform those acts,
 
 7 together with all other information required to be included by
 
 8 other applicable law, is attached to or logically associated with
 
 9 the signature or record.
 
10         -12  Retention of electronic records; originals.(a)
 
11 If a law requires that a record be retained, the requirement is
 
12 satisfied by retaining an electronic record of the information in
 
13 the record which:
 
14      (1)  Accurately reflects the information set forth in the
 
15           record after it was first generated in its final form
 
16           as an electronic record or otherwise; and
 
17      (2)  Remains accessible for later reference.
 
18      (b)  A requirement to retain a record in accordance with
 
19 subsection (a) does not apply to any information the sole purpose
 
20 of which is to enable the record to be sent, communicated, or
 
21 received.
 
22      (c)  A person may satisfy subsection (a) by using the
 
23 services of another person if the requirements of that subsection
 

 
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 1 are satisfied.
 
 2      (d)  If a law requires a record to be presented or retained
 
 3 in its original form, or provides consequences if the record is
 
 4 not presented or retained in its original form, that law is
 
 5 satisfied by an electronic record retained in accordance with
 
 6 subsection (a).
 
 7      (e)  If a law requires retention of a check, that
 
 8 requirement is satisfied by retention of an electronic record of
 
 9 the information on the front and back of the check in accordance
 
10 with subsection (a).
 
11      (f)  A record retained as an electronic record in accordance
 
12 with subsection (a) satisfies a law requiring a person to retain
 
13 a record for evidentiary, audit, or like purposes, unless a law
 
14 enacted after the effective date of this chapter specifically
 
15 prohibits the use of an electronic record for the specified
 
16 purpose.
 
17      (g)  This section does not preclude a governmental agency of
 
18 this State from specifying additional requirements for the
 
19 retention of a record subject to the agency's jurisdiction.
 
20         -13  Admissibility in evidence.  In a proceeding,
 
21 evidence of a record or signature may not be excluded solely
 
22 because it is in electronic form.
 
23         -14  Automated transaction.  In an automated
 
24 transaction, the following rules apply:
 

 
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 1      (1)  A contract may be formed by the interaction of
 
 2           electronic agents of the parties, even if no individual
 
 3           was aware of or reviewed the electronic agents' actions
 
 4           or the resulting terms and agreements.
 
 5      (2)  A contract may be formed by the interaction of an
 
 6           electronic agent and an individual, acting on the
 
 7           individual's own behalf or for another person,
 
 8           including by an interaction in which the individual
 
 9           performs actions that the individual is free to refuse
 
10           to perform and which the individual knows or has reason
 
11           to know will cause the electronic agent to complete the
 
12           transaction or performance.
 
13      (3)  The terms of the contract are determined by the
 
14           substantive law applicable to it.
 
15         -15  Time and place of sending and receipt.(a)  Unless
 
16 the sender and recipient agree to a different method of sending
 
17 that is reasonable under the circumstances, an electronic record
 
18 is sent when it:
 
19      (1)  Is addressed properly or otherwise directed properly to
 
20           an information processing system that the recipient has
 
21           designated or uses for the purpose of receiving
 
22           electronic records or information of the type sent and
 

 
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 1           from which the recipient is able to retrieve the
 
 2           electronic record;
 
 3      (2)  Is in a form capable of being processed by that system;
 
 4           and
 
 5      (3)  Enters an information processing system outside the
 
 6           control of the sender or of a person that sent the
 
 7           electronic record on behalf of the sender or enters a
 
 8           region of the information processing system designated
 
 9           or used by the recipient which is under the control of
 
10           the recipient.
 
11      (b)  Unless the sender and recipient agree to a different
 
12 method of receiving that is reasonable under the circumstances,
 
13 an electronic record is received when:
 
14      (1)  It enters an information processing system that the
 
15           recipient has designated or uses for the purpose of
 
16           receiving electronic records or information of the type
 
17           sent and from which the recipient is able to retrieve
 
18           the electronic record; and
 
19      (2)  It is in a form capable of being processed by that
 
20           system.
 
21      (c)  Subsection (b) applies even if the place the
 
22 information processing system is located is different from the
 
23 place the electronic record is deemed to be received under
 

 
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 1 subsection (d).
 
 2      (d)  Unless otherwise expressly provided in the electronic
 
 3 record or agreed between the sender and the recipient, an
 
 4 electronic record is deemed to be sent from the sender's place of
 
 5 business and to be received at the recipient's place of business.
 
 6 For purposes of this subsection, the following rules apply:
 
 7      (1)  If the sender or recipient has more than one place of
 
 8           business, the place of business of that person is the
 
 9           place having the closest relationship to the underlying
 
10           transaction.
 
11      (2)  If the sender or the recipient does not have a place of
 
12           business, the place of business is the sender's or
 
13           recipient's residence, as the case may be.
 
14      (3)  Notwithstanding any other provision of this title, if
 
15           an individual enters into a transaction for personal,
 
16           family or household purposes that is created or
 
17           documented by an electronic record, the transaction
 
18           shall be deemed to have been made or to have occurred
 
19           at the individual's residence.  This subsection is not
 
20           variable by agreement.
 
21      (e)  An electronic record is received under subsection (b)
 
22 even if no individual is aware of its receipt.
 
23      (f)  Receipt of an electronic acknowledgment from an
 

 
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 1 information processing system described in subsection (b)
 
 2 establishes that a record was received but, by itself, does not
 
 3 establish that the content sent corresponds to the content
 
 4 received.
 
 5      (g)  If a person is aware that an electronic record
 
 6 purportedly sent under subsection (a), or purportedly received
 
 7 under subsection (b), was not actually sent or received, the
 
 8 legal effect of the sending or receipt is determined by other
 
 9 applicable law.  Except to the extent permitted by the other law,
 
10 the requirements of this subsection may not be varied by
 
11 agreement.
 
12      (h)  Notwithstanding any other section of this chapter, a
 
13 record has not been received unless it is received by the
 
14 intended recipient in a manner which it can be opened and read by
 
15 that recipient.
 
16      (i)  If a law other than this chapter requires that a notice
 
17 of the right to cancel be provided or sent, an electronic record
 
18 may not substitute for a writing under the other law unless, in
 
19 addition to satisfying the requirements of the other law and this
 
20 chapter, the notice of cancellation may be returned by electronic
 
21 means.  This subsection may not be varied by agreement.
 
22         -16  Transferable records.(a)  In this section,
 
23 "transferable record" means an electronic record that:
 

 
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 1      (1)  Would be a note under article 3 of the Uniform
 
 2           Commercial Code or a document under article 7 of the
 
 3           Uniform Commercial Code if the electronic record were
 
 4           in writing; and
 
 5      (2)  The issuer of the electronic record expressly has
 
 6           agreed is a transferable record.
 
 7      (b)  A person has control of a transferable record if a
 
 8 system employed for evidencing the transfer of interests in the
 
 9 transferable record reliably establishes that person as the
 
10 person to which the transferable record was issued or
 
11 transferred.
 
12      (c)  A system satisfies subsection (b), and a person is
 
13 deemed to have control of a transferable record, if the
 
14 transferable record is created, stored, and assigned in such a
 
15 manner that:
 
16      (1)  A single authoritative copy of the transferable record
 
17           exists which is unique, identifiable, and, except as
 
18           otherwise provided in paragraphs (4), (5), and (6),
 
19           unalterable;
 
20      (2)  The authoritative copy identifies the person asserting
 
21           control as:
 
22           (A)  The person to which the transferable record was
 
23                issued; or
 

 
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 1           (B)  If the authoritative copy indicates that the
 
 2                transferable record has been transferred, the
 
 3                person to which the transferable record was most
 
 4                recently transferred;
 
 5      (3)  The authoritative copy is communicated to and
 
 6           maintained by the person asserting control or its
 
 7           designated custodian;
 
 8      (4)  Copies or revisions that add or change an identified
 
 9           assignee of the authoritative copy can be made only
 
10           with the consent of the person asserting control;
 
11      (5)  Each copy of the authoritative copy and any copy of a
 
12           copy is readily identifiable as a copy that is not the
 
13           authoritative copy; and
 
14      (6)  Any revision of the authoritative copy is readily
 
15           identifiable as authorized or unauthorized.
 
16      (d)  Except as otherwise agreed, a person having control of
 
17 a transferable record is the holder, as defined in section
 
18 490:1-201(20) of the Uniform Commercial Code, of the transferable
 
19 record and has the same rights and defenses as a holder of an
 
20 equivalent record or writing under the Uniform Commercial Code,
 
21 including, if the applicable statutory requirements under section
 
22 490:3-302(a), 490:7-501, or 490:9-308 of the Uniform Commercial
 
23 Code are satisfied, the rights and defenses of a holder in due
 

 
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 1 course, a holder to which a negotiable document of title has been
 
 2 duly negotiated, or a purchaser, respectively.  Delivery,
 
 3 possession, and indorsement are not required to obtain or
 
 4 exercise any of the rights under this subsection.
 
 5      (e)  Except as otherwise agreed, an obligor under a
 
 6 transferable record has the same rights and defenses as an
 
 7 equivalent obligor under equivalent records or writings under the
 
 8 Uniform Commercial Code.
 
 9      (f)  If requested by a person against which enforcement is
 
10 sought, the person seeking to enforce the transferable record
 
11 shall provide reasonable proof that the person is in control of
 
12 the transferable record.  Proof may include access to the
 
13 authoritative copy of the transferable record and related
 
14 business records sufficient to review the terms of the
 
15 transferable record and to establish the identity of the person
 
16 having control of the transferable record.
 
17         -17  Creation and retention of electronic records and
 
18 conversion of written records by governmental agencies.  Each
 
19 governmental agency of this State shall determine whether, and
 
20 the extent to which, it will create and retain electronic records
 
21 and convert written records to electronic records.
 
22         -18  Acceptance and distribution of electronic records
 
23 by governmental agencies.(a)  Except as otherwise provided in
 

 
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 1 section    -12(f), each governmental agency of this State shall
 
 2 determine whether, and the extent to which, it will send and
 
 3 accept electronic records and electronic signatures to and from
 
 4 other persons and otherwise create, generate, communicate, store,
 
 5 process, use, and rely upon electronic records and electronic
 
 6 signatures.
 
 7      (b)  To the extent that a governmental agency uses
 
 8 electronic records and electronic signatures under subsection
 
 9 (a), the governmental agency, giving due consideration to
 
10 security, may specify:
 
11      (1)  The manner and format in which the electronic records
 
12           must be created, generated, sent, communicated,
 
13           received, and stored and the systems established for
 
14           those purposes;
 
15      (2)  If electronic records must be signed by electronic
 
16           means, the type of electronic signature required, the
 
17           manner and format in which the electronic signature
 
18           must be affixed to the electronic record, and the
 
19           identity of, or criteria that must be met by, any third
 
20           party used by a person filing a document to facilitate
 
21           the process;
 
22      (3)  Control processes and procedures as appropriate to
 
23           ensure adequate preservation, disposition, integrity,
 

 
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 1           security, confidentiality, and auditability of
 
 2           electronic records; and
 
 3      (4)  Any other required attributes for electronic records
 
 4           which are specified for corresponding nonelectronic
 
 5           records or reasonably necessary under the
 
 6           circumstances.
 
 7      (c)  Except as otherwise provided in section    -12(f), this
 
 8 chapter does not require a governmental agency of this State to
 
 9 use or permit the use of electronic records or electronic
 
10 signatures.
 
11         -19  Interoperability.  The governmental agency of this
 
12 State which adopts standards pursuant to section    -18 may
 
13 encourage and promote consistency and interoperability with
 
14 similar requirements adopted by other governmental agencies of
 
15 this and other states and the federal government and
 
16 nongovernmental persons interacting with governmental agencies of
 
17 this State.  If appropriate, those standards may specify
 
18 differing levels of standards from which governmental agencies of
 
19 this State may choose in implementing the most appropriate
 
20 standard for a particular application."
 
21      SECTION 2. This Act shall take effect upon its approval. 
 
22 
 
23                       INTRODUCED BY:  ___________________________
 

 
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