SB404: Bill Text

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SB404, s. 10 Section 10. 137.04 of the statutes is repealed.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

SB404,20,22 137.17 Attribution and effect of electronic records and electronic signatures. (1) An electronic record or electronic signature is attributable to a person if the electronic record or electronic signature was created by the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.

SB404,21,2 (2) The effect of an electronic record or electronic signature that is attributed to a person under sub. (1) is determined from the context and surrounding circumstances at the time of its creation, execution, or adoption, including the parties' agreement, if any, and otherwise as provided by law.

SB404,21,4 137.18 Effect of change or error. (1) If a change or error in an electronic record occurs in a transmission between parties to a transaction, then:

SB404,21,9 (a) If the parties have agreed to use a security procedure to detect changes or errors and one party has conformed to the procedure, but the other party has not, and the nonconforming party would have detected the change or error had that party also conformed, the conforming party may avoid the effect of the changed or erroneous electronic record.

SB404,21,14 (b) In an automated transaction involving an individual, the individual may avoid the effect of an electronic record that resulted from an error made by the individual in dealing with the electronic agent of another person if the electronic agent did not provide an opportunity for the prevention or correction of the error and, at the time the individual learns of the error, the individual:

SB404,21,16 1. Promptly notifies the other person of the error and that the individual did not intend to be bound by the electronic record received by the other person;

SB404,21,20 2. Takes reasonable steps, including steps that conform to the other person's reasonable instructions, to return to the other person or, if instructed by the other person, to destroy the consideration received, if any, as a result of the erroneous electronic record; and

SB404,21,22 3. Has not used or received any benefit or value from the consideration, if any, received from the other person.

SB404,21,24 (2) If neither sub. (1) (a) nor (b) applies, the change or error has the effect provided by other law, including the law of mistake, and the parties' contract, if any.

SB404,21,25 (3) Subsections (1) (b) and (2) may not be varied by agreement.

SB404,22,6 137.19 Notarization and acknowledgement. If a law requires a signature or record to be notarized, acknowledged, verified, or made under oath, the requirement is satisfied if the electronic signature of the person authorized to administer the oath or to make the notarization, acknowledgment, or verification, together with all other information required to be included by other applicable law, is attached to or logically associated with the signature or record.

SB404,22,9 137.20 Retention of electronic records; originals. (1) If a law requires that a record be retained, the requirement is satisfied by retaining the information set forth in the record as an electronic record which:

SB404,22,11 (a) Accurately reflects the information set forth in the record after it was first generated in its final form as an electronic record or otherwise; and

SB404,22,12 (b) Remains accessible for later reference.

SB404,22,15 (2) A requirement to retain a record in accordance with sub. (1) does not apply to any information the sole purpose of which is to enable the record to be sent, communicated, or received.

SB404,22,17 (3) A person may comply with sub. (1) by using the services of another person if the requirements of that subsection are satisfied.

SB404,22,21 (4) Except as provided in sub. (6), if a law requires a record to be presented or retained in its original form, or provides consequences if the record is not presented or retained in its original form, a person may comply with that law by using an electronic record that is retained in accordance with sub. (1).

SB404,22,24 (5) If a law requires retention of a check, that requirement is satisfied by retention of an electronic record containing the information on the front and back of the check in accordance with sub. (1).

SB404,23,5 (6) A record retained as an electronic record in accordance with sub. (1) satisfies a law requiring a person to retain a record for evidentiary, audit, or like purposes, unless a law enacted after the effective date of this subsection .... [revisor inserts date], specifically prohibits the use of an electronic record for the specified purpose.

SB404,23,8 (7) This section does not preclude a governmental unit of this state from specifying additional requirements for the retention of any record subject to the jurisdiction of that governmental unit.

SB404,23,10 137.21 Admissibility in evidence. In a proceeding, a record or signature may not be excluded as evidence solely because it is in electronic form.

SB404,23,11 137.22 Automated transactions. In an automated transaction: