BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 2296| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- CONSENT Bill No: AB 2296 Author: Low (D) Amended: 6/21/16 in Senate Vote: 21 SENATE JUDICIARY COMMITTEE: 7-0, 6/14/16 AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski ASSEMBLY FLOOR: 76-0, 5/2/16 (Consent) - See last page for vote SUBJECT: Digital signatures SOURCE: California Secretary of State, Alex Padilla DIGEST: This bill adds to the Uniform Electronic Transactions Act's (UETA) definition of "electronic signature," that a "digital signature" under the Government Code (which is defined and authorized for use by public entities, at the entity's election) is also a type of electronic signature for purposes of the UETA. This bill makes corresponding changes to the Government Code to reflect that a "digital signature" is a type of "electronic signature" under the UETA. This bill clarifies that the regulations for "digital signatures" apply only to a "digital signature" and not to any other type of "electronic signature" authorized under the UETA. Lastly, this bill specifies nothing in section regarding "digital signatures" limits the right of a public entity or government agency to use and accept an "electronic signature" under the UETA. This bill includes various findings and declarations. AB 2296 Page 2 ANALYSIS: Existing law: 1)Authorizes, generally, under the UETA, the transaction of business, commerce, and contracts by electronic means, and establishes standards for conducting electronic transactions in this State. 2)Applies the UETA only to a transaction between parties that have agreed to conduct the transaction by electronic means, as specified. 3)Sets forth in the UETA certain principles governing the legal effect of conducting transactions electronically. Specifically: a record or signature may not be denied legal effect or enforceability solely because it is in electronic form; a contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation; if a law requires a record to be in writing, an electronic record satisfies the law; and if a law requires a signature, an electronic signature satisfies the law. 1)Provides that an electronic record or electronic signature is attributable to a person if it was the act of the person, which 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. Existing law provides that the effect of an electronic record or electronic signature attributed to a AB 2296 Page 3 person 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. 2)Defines "electronic signature" for purposes of the UETA, as well as the Levying Officer Transfer Act, California Franchise Investment Law, Corporate Securities Law, brokerage agreements, and various purposes under the Financial Code, to mean 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. 3)Similarly defines, for the purposes of the Code of Civil Procedure, "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. 4)Authorizes, under Section 16.5 of the Government Code, that a specified digital signature to be used in any written communication with a public entity in which a signature is required or used. Existing law provides that the use or acceptance of a digital signature is at the option of the parties, and that nothing in these provisions requires a public entity to use or permit the use of a "digital signature." 5)Defines "digital signature" for the aforementioned purposes as an electronic identifier, created by computer, intended by the party using it to have the same force and effect as a manual signature. Existing law provides that the use of a digital signature shall have the same force and effect as the use of a manual signature if and only if it embodies certain attributes, including that it: is unique to the person using it; AB 2296 Page 4 is capable of verification; and conforms to regulations adopted by the Secretary of State, as specified. This bill: 1)Includes within the definition of "electronic signature" under the UETA, that, for purposes of the UETA, a "digital signature" as defined in subdivision (d) of Section 16.5 of the Government Code is a type of electronic signature. 2)Includes within the definition of "digital signature" under Section 16.5 of the Government Code, that for purposes of that section, a digital signature is a type of "electronic signature" as defined under the UETA, as specified. This bill specifies that regulations adopted by the Secretary of State to implement Section 16.5 apply only to a public entity's use of a "digital signature" and not to the use of any other type of "electronic signature" authorized in the UETA. 3)Specifies that nothing in Section 16.5 of the Government Code shall limit the right of a public entity or government agency to use and accept an "electronic signature" as defined under the UETA, as specified. 4)Includes various findings and declarations regarding the history of the UETA and Section 16.5 of the Government Code, above. The findings and declarations also state, among other things: The Internet and digital technologies enable government to provide services to the public and to transact business more efficiently than with paper-based processes. It is the intent of the Legislature to amend current law AB 2296 Page 5 to clarify that a "digital signature" authorized by Section 16.5 of the Government Code and subject to regulations adopted by the Secretary of State is one type of "electronic signature" that a public agency may choose to adopt under the UETA. 5)Includes other technical, nonsubstantive changes. Background California has taken various steps to utilize more electronic resources within the various branches of government. In 1995, AB 1577 (Bowen, Chapter 594, Statutes of 1995) was enacted to provide public entities an option, in any written communication in which a public entity is a party and a signature is required or used, to use a "digital signature" that would have the same force and effect as the use of a manual (or "wet") signature. For those purposes, "digital signature" was defined to mean an electronic identifier, created by computer, intended by the party using it to have the same force and effect as the use of a manual signature. At the same time, the digital signature was only to be given such force and effect if it met certain conditions, including that it conform to regulations adopted by the Secretary of State, as specified. (See Gov. Code Sec. 16.5.) Separately, in 1999, the Legislature enacted the UETA, regulating the electronic transmission of documents and signatures. (SB 820 (Sher, Chapter 428, Statutes of 1999).) Also in 1999, the Legislature authorized courts to adopt local rules of court permitting electronic filing and service of documents, as specified. (SB 367 (Dunn, Chapter 514, Statutes of 1999).) Six years later, in 2004, the Legislature, recognizing a need for an efficient, cost-effective means of maintaining and transmitting records by public agencies, enacted the Electronic Recording Delivery Act of 2004, regulating the electronic delivery, recording, and return of instruments affecting right, title, or interest in real property. (AB 578 AB 2296 Page 6 (Leno, Chapter 621, Statutes of 2004).) More recently, in 2010, AB 1926 (Evans, Chapter 167, Statutes of 2010) was enacted to provide trial courts with the ability to create, maintain, and preserve trial court records electronically under procedures and guidelines to be provided for by the Judicial Council. That same year, AB 2394 (Brownley, Chapter 680, Statutes of 2010) was enacted to establish the Levying Officer Electronic Transactions Act, whereby a levying officer could use electronic methods to create, generate, send, receive, store, display, retrieve, or process information, electronic records, and documents, as specified. Like SB 820 (which, again, enacted the UETA), above, AB 2394 defined "electronic signature" for these purposes to mean 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. (See Civ. Code Sec. 1633.2(h) and Code Civ. Proc. Sec. 263.1(c), respectively.) Last year, AB 432 (Chang Chapter 32, Statutes of 2015) was enacted to bring consistency throughout the California statutes in relation to the term "electronic signature." To do so, that bill defined the term "electronic signature" for purposes of the Code of Civil Procedure to mirror the definition to those of "electronic signature" enacted under SB 820 and AB 2394, above. That bill also provided that an electronic signature, as defined under the bill, by a court or judicial officer shall be as effective as an original signature. The bill did not, however, in any way affect the Government Code section first enacted in 1995 relating to "digital signatures." According to the proponents of this bill, there is some confusion as to how "digital signatures" compare to "electronic signatures" under the UETA and the ability of public entities to use an electronic signature, as opposed to digital signature. This bill, sponsored by the Secretary of State's Office, seeks to clarify within the UETA's definition of "electronic signature" that a "digital signature," as defined under the AB 2296 Page 7 Government Code, is also a type of electronic signature for purposes of the UETA. This bill makes corresponding changes to the Government Code to reflect that a digital signature is a type of "electronic signature" under the UETA, and makes other clarifying changes. Comments As stated by the author, "AB 2296 would remove a barrier to California public agencies' use of fully digital transactions by clarifying which electronic signature technologies are legally permissible. The bill would thereby enable government to provide services to the public and transact business with increased efficiency, cost savings, convenience, and paper reduction." FISCAL EFFECT: Appropriation: No Fiscal Com.:NoLocal: No SUPPORT: (Verified6/22/16) California Secretary of State, Alex Padilla (source) California Assessors' Association California Association of Realtors California Cable and Telecommunications Association California Chamber of Commerce California Manufacturers and Technology Association Computing Technology Industry Association County Recorders' Association of California Electronic Signatures and Records Association Innovate Your State League of California Cities OPPOSITION: (Verified6/22/16) AB 2296 Page 8 None received ARGUMENTS IN SUPPORT: In support, the Electronic Signature & Records Association writes: California Government Code Section 16.5 was passed in 1995. It specifies the requirements that digital signatures must meet in order for them to be used and accepted by California government agencies. Four years later, California adopted the Uniform Electronic Transactions Act (UETA) which grants government agencies the power to accept all forms of electronic signatures - both digital and simple electronic. However, many of our members have noted that some California agencies, cities and counties have continued operating under the belief that Section 16.5 prevents them from taking advantage of UETA because they believe Section 16.5 requires them, rather than permits them, to use digital signatures. The impact has been that California government agencies and local governments are not taking advantage of the speed and efficiency that can be realized by widespread adoption of electronic signatures and California citizens are burdened with using slow, paper-based handwritten signatures. In short, government agencies are not as agile as the private sector needs them to be. Assembly Bill 2296 will positively impact government transactions and California commerce by clarifying that UETA allows government agencies to accept both digital and electronic signatures. The changes set forth in the bill will resolve the conflict between Section 16.5 and UETA. With these changes in place, businesses will be able to take advantage of being able to quickly file all types of forms and documentation online without the need to print out, sign, and AB 2296 Page 9 fax or mail the form. Consumers will be able to enjoy a much greater degree of responsiveness and ease in working with government agencies. Government agencies will have the ability to create document workflows and acceptance processes using all of the technological options available. Section 16.5 was meant to speed government processes, not slow them. Assembly Bill 2296 ensures that original goal is met. ASSEMBLY FLOOR: 76-0, 5/2/16 AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Wood, Rendon NO VOTE RECORDED: Beth Gaines, Roger Hernández, Ridley-Thomas, Williams Prepared by:Ronak Daylami / JUD. / (916) 651-4113 6/22/16 15:14:52 **** END ****