BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2296


                                                                    Page  1





          Date of Hearing:  April 26, 2016


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 2296  
          (Low) - As Amended April 19, 2016


                                  PROPOSED CONSENT


          SUBJECT:  Digital signatures


          KEY ISSUE:  SHOULD THE RULES concerning ELECTRONIC SIGNATURES BE  
          CLARIFIED SO THAT GOVERNMENT AGENCIES MAY BE ABLE TO MORE  
          EFFECTIVELY TRANSACT BUSINESS THROUGH ELECTRONIC TRANSACTIONS? 

                                      SYNOPSIS


          California has taken several steps to enable use of more  
          electronic transactions in the various branches of government.   
          Beginning in 1995, the Legislature adopted its first digital  
          signature statute to allow public entitles to engage in  
          electronic commerce.  (AB 1577 (Bowen), Chap. 594, Stats. 1995.)  
           Then in 1999, the Legislature enacted the Uniform Electronic  
          Transactions Act (UETA), regulating the electronic transmission  
          of documents and signatures more generally.  (SB 820, (Sher),  
          Chap. 428, Stats. 1999.)  As a result, there are multiple rules  
          governing what electronic or digital signatures are acceptable;  
          and, according to the author, there is confusion about what  
          rules apply and when.  This bill, sponsored by the Secretary of  
          State, seeks to reduce that confusion by clarifying that a  








                                                                    AB 2296


                                                                    Page  2





          digital signature under the Government Code also qualifies as an  
          electronic signature under the UETA, and that an electronic  
          signature under the UETA does not need to comply with the  
          requirements of a digital signature under the Government Code.   
          This bill is supported by the League of California Cities, the  
          California Chamber of Commerce, the California Manufacturing and  
          Technology Association and the Computing Technology Industry  
          Association, and it has no known opposition.


          SUMMARY:  Clarifies the types of electronic signatures that are  
          permissible for public agencies.  Specifically, this bill:  


          1)Provides that a "digital signature," as defined, is considered  
            a type of "electronic signature" under the Uniform Electronic  
            Transactions Act.


          2)Clarifies that use of a digital signature is discretionary.


          3)Clarifies that regulations adopted by the Secretary of State  
            to implement Government Code Section 16.5 apply only to the  
            use of a "digital signature" under that statute and not to an  
            "electronic signature" under the UETA.


          4)States various legislative findings.


          EXISTING LAW:  


          1)Establishes, under the UETA, standards for conducting  
            electronic transactions in this State, permitting but not  
            requiring a record or signature to be created, generated,  
            sent, communicated, received, stored, or otherwise processed  
            or used by electronic means or in electronic form.  As part of  








                                                                    AB 2296


                                                                    Page  3





            that, defines an "electronic signature" as an electronic  
            sound, symbol, or process attached to, or logically associated  
            with, an electronic record and executed or adopted by a person  
            with the intent to sign the electronic record.  (Civil Code  
            Section 1633.1 et seq.)
          2)Allows a digital signature to be used in a written  
            communication with a public entity, but provides that use or  
            acceptance of a digital signature is at the option of the  
            parties.  Defines "digital signature" as an electronic  
            identifier, created by computer, intended by the party using  
            it to have the same force and effect as a manual signature.   
            (Government Code Section 16.5.)


          3)Defines "electronic signature" for the purposes of the Code of  
            Civil Procedure as an electronic sound, symbol, or process  
            attached to or logically associated with an electronic record  
            and executed or adopted by a person with the intent to sign  
            the electronic record.  (Coe of Civil Procedure Sections 17,  
            263.1.)


          FISCAL EFFECT:  As currently in print this bill is keyed  
          non-fiscal.


          COMMENTS:  California has taken several steps to enable use of  
          more electronic transactions in the various branches of  
          government.  Beginning in 1995, the Legislature adopted its  
          first digital signature statute to allow public entitles to  
          engage in electronic commerce.  (AB 1577 (Bowen), Chap. 594,  
          Stats. 1995.)  Beginning in 1999, the Legislature authorized  
          courts to adopt local rules of court permitting electronic  
          filing and service of documents.  (SB 367 (Dunn), Chap. 514,  
          Stats. 1999.)  Also in 1999, the Legislature enacted the Uniform  
          Electronic Transactions Act, regulating the electronic  
          transmission of documents and signatures.  (SB 820, (Sher),  
          Chap. 428, Stats. 1999.)  As a result, there are multiple rules  
          governing what electronic or digital signatures are acceptable;  








                                                                    AB 2296


                                                                    Page  4





          and, according to the author, there is confusion about what  
          rules apply and when.  This bill seeks to reduce that confusion  
          by clarifying that a digital signature under the Government Code  
          also qualifies as an electronic signature under the UETA.  


          Government Code Section 16.5:  California enacted Government  
          Code Section 16.5 in 1995, which authorizes use of a digital  
          signature in communication with public agencies.  (AB 1577  
          (Bowen), 1995.)  For purposes of this bill, the relevant  
          provision of that statute provides that a digital signature  
          meeting specified requirements will have the same force and  
          effect as a manual signature for written communications with a  
          public entity.  The Secretary of State was required to adopt  
          implementing regulations.  Those regulations require that the  
          digital signature must be created under a technology that the  
          Secretary of State finds acceptable and has approved.  There are  
          two such technologies today -- Signature Dynamic, which uses a  
          specialized touchpad to record signatures and, according to the  
          Secretary of State, is not widely used; and public key  
          cryptography, which must be issued with a certificate by a  
          third-party on the Secretary of State's "Approved List of  
          Certificate Authorities."  Those are the only two approved  
          methods to create a digital signature under Section 16.5.  The  
          rules under Section 16.5 are purely voluntary -- no public  
          entity is required to use them -- but if the government entity  
          relies on those rules, the digital signature must be created  
          through a method approved by the Secretary of State.


          Uniform Electronic Transactions Act:  Four years later, the  
          Legislature passed the more comprehensive UETA, which  
          established uniform standards for conducting electronic  
          transactions in California.  (SB 820 (Sher), 1999.)  UETA set  
          out a voluntary system of rules and procedures for the sending  
          and receiving of electronic records and signatures, the  
          formation of contracts using electronic records, the making and  
          retention of electronic records and signatures, and the  
          procedures governing changes and errors in electronically  








                                                                    AB 2296


                                                                    Page  5





          transmitted records.  It also established the validity of  
          transactions formed, transmitted and recorded electronically,  
          and it established the admissibility of electronic records in a  
          legal proceeding.  Of particular relevance for this bill, UETA  
          defines "electronic signature" as "an electronic sound, symbol,  
          or process attached to or logically associated with an  
          electronic record and executed or adopted by a person with the  
          intent to sign the electronic record."  (Civil Code Section  
          1633.2 (h).)  Unlike Government Code Section 16.5, UETA does not  
          dictate any particular method of creation for that electronic  
          signature.


          Confusion in the Marketplace:  According to the author this bill  
          is necessary because there is confusion among the stakeholders  
          about what types of signatures are required for electronic  
          transactions:


            The definition of "digital signature" in Section 16.5 of the  
            Government Code, and the definition of "electronic signature"  
            in the UETA are similar, and neither statute includes any  
            cross-reference to the other.  Although both provisions of law  
            allow an agency to choose whether or not to convert from using  
            a wet signature, some agencies interpret the law as allowing  
            an agency to choose only a "digital signature" solution  
            subject to Secretary of State regulations, even if an  
            "electronic signature" technology is preferred.  


            In addition, some public agencies appear to conclude that they  
            can contract with a signature solution provider only if that  
            provider is on the Secretary of State's approved list.   
            However, . . . a provider would not be on this list, only the  
            associated certificate authority.


            This lack of clarity in the law creates a barrier to public  
            agencies utilizing fully digital transactions that require a  








                                                                    AB 2296


                                                                    Page  6





            signature.  The confusion is limiting the signature solutions  
            agencies adopt, or leading them to retain paper-based  
            processes to avoid noncompliance.  As a result, the benefits  
            of digital transactions and online services -- efficiency,  
            cost savings, convenience, and paper reduction - are not being  
            fully realized.


          This bill seeks to eliminate any confusion between the two code  
          sections in several ways.  First, this bill provides relevant  
          cross-references in the Government Code and the UETA.  Second,  
          it clarifies that a digital signature under Government Code  
          Section 16.5 qualifies as an electronic signature under the  
          UETA.  Third, it clarifies that a public entity can elect to  
          transaction business using a digital signature, but is not  
          compelled to do so.  Finally the bill provides that the  
          Secretary of State's regulations under Government Code Section  
          16.5, which limit the types of electronic signature allowed  
          under that code section, do not apply to an electronic signature  
          under the UETA.  These multiple clarifications are designed to  
          eliminate all confusion and make clear that an electronic  
          signature under the UETA can be a digital signature under the  
          Government Code, but does not need to comply with those  
          requirements.


          ARGUMENTS IN SUPPORT:  Supporters write that the bill will  
          "remove a barrier to California public agencies' use of fully  
          digital transactions by clarifying which electronic signature  
          technologies are legally permissible.  As a result, the bill  
          would enable government to provide services to the public and  
          transact business with increased efficiency, cost savings,  
          convenience, and paper reduction."














                                                                    AB 2296


                                                                    Page  7





          REGISTERED SUPPORT / OPPOSITION:




          Support


          California Secretary of State Alex Padilla (sponsor)


          California Chamber of Commerce


          California Manufacturing and Technology Association


          Computing Technology Industry Association


          League of California Cities




          Opposition


          None on file




          Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334













                                                                    AB 2296


                                                                    Page  8