BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                       AB 2296|
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                                      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. 










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          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  








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            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;








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                 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  








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               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  








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          (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  








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          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)








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          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  








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            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


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