Request for Comments on the Court 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

SUMMARY:

Section 101 of the Electronic Signatures in Global and National Commerce Act, Pub. L. No. 106-229, codified at 15 U.S.C. §§ 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. § 7001(a). Sections 103 (a) and (b) of the Act, however, provide that the provisions of section 101 do not apply to contracts and records governed by statutes and regulations regarding probate and domestic law matters; state commercial law; consumer law covering utility services, real property defaults and foreclosures, and insurance benefits; product recall notices; and hazardous materials papers. 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. § 7003(c)(1). This Notice is intended to solicit comments from interested parties for purposes of this evaluation, specifically on the court documents and records exception to ESIGN. See 15 U.S.C. § 7003(b)(1). NTIA will publish separate notices requesting comment on the other exceptions listed in section 103 of the ESIGN Act.

DATES:

Written comments and papers are requested to be submitted on or before November 4, 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 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-ctdocs@ntia.doc.gov. 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, Room 4713, 14th Street and Constitution Ave., N.W., Washington, DC 20230, telephone (202) 482-1816 or electronic mail:jscarlett@ntia.doc.gov. Media inquiries should be directed to the Office of Public Affairs, National Telecommunications and Information Administration, at (202) 482-7002.

SUPPLEMENTARY INFORMATION:

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 provide 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; state commercial law; consumer law covering utility services, real property defaults and foreclosures, and insurance benefits; product recall notices; and hazardous materials documents.

The statutory language providing for an exception to section 101 of ESIGN for court documents and notices is found in section 103(b) of the Act:

Sec. 103. [15 U.S.C. 7003] Specific Exceptions.

* * * *

(b) Additional Exceptions.— The provisions of section 101 shall not apply to—

(1) court orders or notices, or official court documents (including briefs,pleadings, and other writings) required to be executed in connection with court proceedings;

* * * *

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.

Federal and State Court Electronic Document Systems

Over the last few years, federal and state courts have established a substantial number of electronic systems for filing and public access to court documents. The federal courts have been a leader in this area, with the establishment of the Case Management/Electronic Case Files (CM/ECF) system. Through this system, attorneys can file court documents from their offices; judges, court staff, attorneys and the public have immediate access to most of those documents. Currently, nine district courts and twenty-five bankruptcy courts accept electronic filings. Over the next several years, additional courts are expected to do so. As of July 2002, more than 15,000 attorneys and others have filed court documents over the Internet. The federal courts have over 3 million cases, containing many millions of documents, available to the public over the Internet. See Administrative Office of the Courts, Case Management and Electronic Case Files (CM/ECF), available at http://www.uscourts.gov/cmecf/cmecf_faqs.html.

State courts have also followed the trend set by the federal courts by allowing public access to court documents, and some states also have developed online filing and court document management systems. A report of the Maryland Judiciary's Committee on Access to Court Records, released July 5, 2002, states that 17 percent (or 9 states) of all states employ some type of computer access to court records, while 31 percent offer “limited-to-substantial” free or inexpensive web access to court records. See “State and Federal Policy on Electronic Access to Court Records,” Subcommittee on Access to Court Records, at 2, available at http://www.courts.state.md.us/access/finalreport2-05.pdf.

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 evaluation 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 court documents exception is intended to evaluate the current state of federal and state court electronic filing systems and electronic access for public access in preparation to report to Congress regarding whether the exception remains necessary for the protection of consumers. The purpose of this evaluation is not to review or analyze federal and state court regulations and rules for the purpose of recommending changes to the regulations, but rather to advise Congress of the 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 federal and state court procedures or rulemaking proceedings.

Invitation to Comment

NTIA requests that interested parties, including members of the bar, courts and consumer representatives, submit written comment on any issue of fact, law, or policy that may assist in the evaluation of the court documents and records exception required by section 103(c). We invite comment on ESIGN generally to assist in evaluating the narrower issues associated with the substantive law governing the exception. The following questions are intended to provide guidance as to the specific subject areas expected 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 the current developments with respect to electronic filing and electronic access procedures for court documents, if any, in federal, state or local rules and regulations.

2. Discuss whether all types of federal or state court documents (pleadings, briefs, motions, orders, etc.) are available in an electronic format. If not, describe court documents that have been excluded from court filing or access systems and explain the basis for their exclusion.

3. Discuss whether documents may be filed electronically in all types of cases (i.e., civil, criminal, bankruptcy) and are available for public access in electronic formats?

4. If access to documents is limited based on case type, for what kinds of cases is access restricted (e.g., juvenile or adoption cases)? Please discuss what interests may be served by these access restrictions and whether it is necessary to retain the court documents exception to preserve and protect the interest(s).

5. Discuss whether the current Uniform Electronic Transactions contain exceptions for court orders, notices, and documents.

6. Describe any state or federal regulations, other than ESIGN and UETA, that preclude electronic filing or access to court documents.

7. Given the current developments in federal court regulations with respect to electronic transactions in this area, is it necessary to retain the court documents exception to the ESIGN requirements? If so, what is the interest that this exception continues to serve or protect?

8. Given the current development in state court regulations with respect to electronic transactions in this area, is it necessary to retain the court documents exception to the ESIGN requirements? If so, what is the interest that this exception continues to serve or protect?

9. Discuss any unique issues surrounding the electronic filing, delivery, or service of court documents (such as authentication, privacy, and security) that should be considered in determining whether to eliminate the court documents exception from ESIGN.

10. Are there technological issues that either enable or impair electronic filing and electronic access to court documents? Please describe in detail the available technology that enables electronic filing and electronic access to court documents and records.

Please provide copies of studies, reports, opinions, research or other empirical data referenced in the responses.