SB404: Bill Text

In addition, the bill specifies that it does not preclude a governmental unit of this state from specifying additional requirements for the retention of any document subject to its jurisdiction. It is unclear how this provision relates to other provisions of the bill which provide that an electronic document satisfies any retention requirement as long as specified requirements relating to accuracy and accessibility are also satisfied. It is also unclear whether this provision grants rule-making authority or merely references any authority that may exist currently. Also, although it is unclear from the text whether this provision applies to nongovernmental documents or only to documents in the possession of a governmental unit, the official comments imply that the provision is intended to apply to nongovernmental documents that are subject to a governmental unit's jurisdiction.

Evidence

Under this bill, a document or signature may not be excluded as evidence solely because it is in electronic form. This provision confirms the treatment of electronic documents and signatures under current law.

Automated transactions

This bill validates contracts formed in automated transactions by the interaction of automated agents of the parties or by the interaction of one party's automated agent and an individual. Under current law, it is possible to argue that an automated transaction may not result in an enforceable contract because, at the time of the transaction, either or both of the parties lack an expression of human intent to form the contract.

Time and location of electronic sending and receipt

Under this bill, an electronic document is sent when the electronic document a) is addressed or otherwise properly directed to an information processing system that the intended recipient has designated or uses for the purpose of receiving electronic documents or information of the type sent and from which the recipient is able to retrieve the electronic document; b) is in a form capable of being processed by that information processing system; and c) enters an information processing system outside of the control of the sender or enters a region of the information processing system used or designated by the recipient that is under the recipient's control. An electronic document is received when the electronic document enters and is in a form capable of being processed by an information processing system that the recipient has designated or uses for the purpose of receiving electronic documents or information of the type sent and from which the recipient is able to retrieve the electronic document. The bill permits the parties to a transaction to agree to alter the effect of these provisions with respect to the transaction. Under the bill, an electronic document may be received even if no individual is aware of its receipt. Furthermore, under the bill, an electronic acknowledgment of receipt from the information processing system used or designated by the recipient establishes that the electronic document was received but does not establish that the information sent is the same as the information received.

These provisions may be interpreted to alter laws under which the date of receipt of a public record submitted for filing is the date on which a paper copy is received or postmarked, so that the date of electronic filing constitutes the date of receipt instead. However, as noted earlier, this bill specifically states that it applies only to transactions between parties each of which has agreed to conduct transactions by electronic means. Although the definition of "transaction" may be interpreted broadly to include a typical governmental action like the filing of a document, the prefatory note and comments to UETA imply that a narrower interpretation is intended which covers only the actions of the government as a market participant. If the narrower interpretation applies, then these provisions will likely have no effect upon the filing of most public records.

Under this bill, an electronic document is deemed to be sent from the sender's place of business that has the closest relationship to the underlying transaction and to be received at the recipient's place of business that has the closest relationship to the underlying transaction. If the sender or recipient does not have a place of business, the electronic document is deemed to be sent or received from the sender's or recipient's residence. The bill also permits a sender to expressly provide in an electronic document that the document is deemed to be sent from a different location. The bill also permits the parties to a transaction to agree to alter the effect of these provisions on the transaction. To the extent that an electronic document may constitute a sale, with the seller receiving payment electronically, these provisions may be interpreted to permit a seller to argue that a sale occurred in a jurisdiction where the seller is not subject to a tax that would otherwise be imposed under Wisconsin law. However, the official comments imply that this interpretation is not intended.

In addition, under the bill, if a person is aware that an electronic document purportedly sent or purportedly received in compliance with these provisions was not actually sent or received, the legal effect of the sending or receipt is determined by other applicable law. Although the official comments are silent on the meaning of this provision, it is likely intended to give a court direction as to what law to apply to determine the legal effect when there is a failure to send or receive an electronic document in the manner provided under the bill.

Transferable records

This bill expands current law with regard to transactions involving the use of transferable records (electronic versions of certain documents under the Uniform Commercial Code). Although current law under E-sign only permits the use of transferrable records in transactions secured by real property, this bill permits the use of transferable records in any transaction in which a promissory note or document of title under the Uniform Commercial Code may be used. Under this bill, an electronic document qualifies as a transferable record only if the issuer of the electronic document expressly agrees that the electronic document is a transferable record.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB404, s. 1 Section 1. 16.61 (7) (d) of the statutes is created to read:

SB404,12,3 16.61 (7) (d) This subsection does not apply to public records governed by s. 137.20.

SB404, s. 2 Section 2. 16.611 (2) (e) of the statutes is created to read:

SB404,13,3 16.611 (2) (e) This subsection does not apply to public records governed by s. 137.20.

SB404, s. 3 Section 3. 16.612 (2) (c) of the statutes is created to read:

SB404,13,6 16.612 (2) (c) This subsection does not apply to documents or public records governed by s. 137.20.

SB404, s. 4 Section 4. Chapter 137 (title) of the statutes is amended to read:

SB404,13,10 CHAPTER 137 authentications AND ELECTRONIC TRANSACTIONS AND records

SB404, s. 5 Section 5. Subchapter I (title) of chapter 137 [precedes s. 137.01] of the statutes is amended to read:

SB404,13,13 CHAPTER 137

SB404,13,17 SUBCHAPTER I NOTARIES AND COMMISSIONERS OF DEEDS; NONELECTRONIC NOTARIZATION AND ACKNOWLEDGEMENT

SB404, s. 6 Section 6. 137.01 (3) (a) of the statutes is amended to read:

SB404,13,24 137.01 (3) (a) Every Except as authorized in s. 137.19, every notary public shall provide an engraved official seal which makes a distinct and legible impression or official rubber stamp which makes a distinct and legible imprint on paper. The impression of the seal or the imprint of the rubber stamp shall state only the following: "Notary Public," "State of Wisconsin" and the name of the notary. But any notarial seal in use on August 1, 1959, shall be considered in compliance.

SB404, s. 7 Section 7. 137.01 (4) (a) of the statutes is amended to read:

SB404,14,3 137.01 (4) (a) Every official act of a notary public shall be attested by the notary public's written signature or electronic signature, as defined in s. 137.04 (2) 137.11 (8).

SB404, s. 8 Section 8. 137.01 (4) (b) of the statutes is amended to read:

SB404,14,11 137.01 (4) (b) All Except as authorized in s. 137.19, all certificates of acknowledgments of deeds and other conveyances, or any written instrument required or authorized by law to be acknowledged or sworn to before any notary public, within this state, shall be attested by a clear impression of the official seal or imprint of the rubber stamp of said officer, and in addition thereto shall be written or stamped either the day, month and year when the commission of said notary public will expire, or that such commission is permanent.

SB404, s. 9 Section 9. Subchapter II (title) of chapter 137 [precedes 137.04] of the statutes is amended to read:

SB404,14,14 CHAPTER 137

SB404,14,19 subchAPTER ii ELECTRONIC SIGNATURES TRANSACTIONS AND records; Electronic notarization and acknowledgement

SB404, s. 10 Section 10. 137.04 of the statutes is repealed.

SB404, s. 11 Section 11. 137.05 of the statutes is renumbered 137.25 and amended to read:

SB404,15,4 137.25 Submission of written documents records to governmental units. Unless otherwise prohibited by law, with the consent of a governmental unit of this state that is to receive a record, any document record that is required by law to be submitted in writing to a that governmental unit and that requires a written signature may be submitted by transforming the document into as an electronic format, but only with the consent of the governmental unit that is to receive the document record, and if submitted as an electronic record may incorporate an electronic signature.

SB404, s. 12 Section 12. 137.06 of the statutes is repealed.

SB404, s. 13 Section 13. 137.11 to 137.24 of the statutes are created to read:

SB404,15,7 137.11 Definitions. In this subchapter:

SB404,15,11 (1) "Agreement" means the bargain of the parties in fact, as found in their language or inferred from other circumstances and from rules, regulations, and procedures given the effect of agreements under laws otherwise applicable to a particular transaction.

SB404,15,16 (2) "Automated transaction" means a transaction conducted or performed, in whole or in part, by electronic means or by the use of electronic records, in which the acts or records of one or both parties are not reviewed by an individual in the ordinary course in forming a contract, performing under an existing contract, or fulfilling an obligation required by the transaction.

SB404,15,19 (3) "Computer program" means a set of statements or instructions to be used directly or indirectly in an information processing system in order to bring about a certain result.

SB404,15,21 (4) "Contract" means the total legal obligation resulting from the parties' agreement as affected by this subchapter and other applicable law.

SB404,15,23 (5) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

SB404,16,2 (6) "Electronic agent" means a computer program or an electronic or other automated means used independently to initiate an action or respond to electronic records or performances in whole or in part, without review or action by an individual.

SB404,16,4 (7) "Electronic record" means a record that is created, generated, sent, communicated, received, or stored by electronic means.

SB404,16,7 (8) "Electronic signature" means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.

SB404,16,8 (9) "Governmental unit" means:

SB404,16,12 (a) An agency, department, board, commission, office, authority, institution, or instrumentality of the federal government or of a state or of a political subdivision of a state or special purpose district within a state, regardless of the branch or branches of government in which it is located.

SB404,16,13 (b) A political subdivision of a state or special purpose district within a state.

SB404,16,14 (c) An association or society to which appropriations are made by law.

SB404,16,17 (d) Any body within one or more of the entities specified in pars. (a) to (c) that is created or authorized to be created by the constitution, by law, or by action of one or more of the entities specified in pars. (a) to (c).

SB404,16,18 (e) Any combination of any of the entities specified in pars. (a) to (d).

SB404,16,20 (10) "Information" means data, text, images, sounds, codes, computer programs, software, databases, or the like.

SB404,16,22 (11) "Information processing system" means an electronic system for creating, generating, sending, receiving, storing, displaying, or processing information.

SB404,16,24 (12) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

SB404,17,6 (13) "Security procedure" means a procedure employed for the purpose of verifying that an electronic signature, record, or performance is that of a specific person or for detecting changes or errors in the information in an electronic record. The term includes a procedure that requires the use of algorithms or other codes, identifying words or numbers, encryption, callback, or other acknowledgment procedures.

SB404,17,11 (14) "State" means a state of the United States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band, or Alaskan native village, which is recognized by federal law or formally acknowledged by a state.

SB404,17,14 (15) "Transaction" means an action or set of actions occurring between 2 or more persons relating to the conduct of business, commercial, or governmental affairs.

SB404,17,17 137.12 Application. (1) Except as otherwise provided in sub. (2) and except in ss. 137.25 and 137.26, this subchapter applies to electronic records and electronic signatures relating to a transaction.

SB404,17,19 (2) Except as otherwise provided in sub. (3), this subchapter does not apply to a transaction to the extent it is governed by:

SB404,17,21 (a) Any law governing the execution of wills or the creation of testamentary trusts; or

SB404,17,22 (b) Chapters 401 and 403 to 410, other than ss. 401.107 and 401.206.

SB404,17,25 (3) This subchapter applies to an electronic record or electronic signature otherwise excluded from the application of this subchapter under sub. (2) to the extent it is governed by a law other than those specified in sub. (2).

SB404,18,2 (4) A transaction subject to this subchapter is also subject to other applicable substantive law.

SB404,18,4 (5) This subchapter applies to the state of Wisconsin, unless otherwise expressly provided.

SB404,18,8 137.13 Use of electronic records and electronic signatures; variation by agreement. (1) This subchapter does not require a record or signature to be created, generated, sent, communicated, received, stored, or otherwise processed or used by electronic means or in electronic form.

SB404,18,12 (2) This subchapter applies only to transactions between parties each of which has agreed to conduct transactions by electronic means. Whether the parties agree to conduct a transaction by electronic means is determined from the context and surrounding circumstances, including the parties' conduct.

SB404,18,15 (3) A party that agrees to conduct a transaction by electronic means may refuse to conduct other transactions by electronic means. The right granted by this subsection may not be waived by agreement.

SB404,18,19 (4) Except as otherwise provided in this subchapter, the effect of any provision of this subchapter may be varied by agreement. Use of the words "unless otherwise agreed," or words of similar import, in this subchapter shall not be interpreted to preclude other provisions of this subchapter from being varied by agreement.

SB404,18,21 (5) Whether an electronic record or electronic signature has legal consequences is determined by this subchapter and other applicable law.

SB404,18,22 137.14 Construction. This subchapter shall be construed and applied:

SB404,18,23 (1) To facilitate electronic transactions consistent with other applicable law;

SB404,18,25 (2) To be consistent with reasonable practices concerning electronic transactions and with the continued expansion of those practices; and

SB404,19,4 (3) To effectuate its general purpose to make uniform the law with respect to the subject of this subchapter among states enacting laws substantially similar to the Uniform Electronic Transactions Act as approved and recommended by the National Conference of Commissioners on Uniform State Laws in 1999.

SB404,19,7 137.15 Legal recognition of electronic records, electronic signatures, and electronic contracts. (1) A record or signature may not be denied legal effect or enforceability solely because it is in electronic form.

SB404,19,9 (2) A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation.

SB404,19,11 (3) If a law requires a record to be in writing, an electronic record satisfies that requirement in that law.

SB404,19,13 (4) If a law requires a signature, an electronic signature satisfies that requirement in that law.

SB404,19,21 137.16 Provision of information in writing; presentation of records. (1) If parties have agreed to conduct a transaction by electronic means and a law requires a person to provide, send, or deliver information in writing to another person, a party may satisfy the requirement with respect to that transaction if the information is provided, sent, or delivered, as the case may be, in an electronic record capable of retention by the recipient at the time of receipt. An electronic record is not capable of retention by the recipient if the sender or its information processing system inhibits the ability of the recipient to print or store the electronic record.

SB404,19,25 (2) If a law other than this subchapter requires a record to be posted or displayed in a certain manner, to be sent, communicated, or transmitted by a specified method, or to contain information that is formatted in a certain manner, then:

SB404,20,2 (a) The record shall be posted or displayed in the manner specified in the other law.

SB404,20,4 (b) Except as otherwise provided in sub. (4) (b), the record shall be sent, communicated, or transmitted by the method specified in the other law.

SB404,20,6 (c) The record shall contain the information formatted in the manner specified in the other law.

SB404,20,8 (3) If a sender inhibits the ability of a recipient to store or print an electronic record, the electronic record is not enforceable against the recipient.

SB404,20,9 (4) The requirements of this section may not be varied by agreement, but:

SB404,20,13 (a) To the extent a law other than this subchapter requires information to be provided, sent, or delivered in writing but permits that requirement to be varied by agreement, the requirement under sub. (1) that the information be in the form of an electronic record capable of retention may also be varied by agreement; and

SB404,20,16 (b) A requirement under a law other than this subchapter to send, communicate, or transmit a record by 1st-class or regular mail or with postage prepaid may be varied by agreement to the extent permitted by the other law.