ESIGN & UETA - A Closer Look


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Adopts (in restated form) the three pillars of the UETA
Adopts "Opt-in" rule
Adopts preservation of formatting requirements
Adopts record & check retention rules (with added specificity)
Adopts the rule permitting electronic originals
Adopts the special retention and accessibility rules for records required for later reference (in modified form)
Adopts the rules on notarization
Adopts the rules for electronic agents (in modified form)
Adopts the exceptions for

Grants regulators authority to determine when and if government documents will be filed electronically, and to specify formats and other requirements
Grants regulators authority to establish record retention requirements for records required to be available for government inspection, review or audit

Preservation of substantive legal rights and obligations
Preservation of content and timing of consumer disclosures
Preservation of any rule concerning the proximity or physical location of any warning, notice or disclosure
Application to insurance laws
Authority of regulators to establish interpretive rules within substantive jurisdiction

Excludes recordings of oral communications from definition of electronic record for purposes of consumer notices and disclosures
Adds additional exclusions and exemptions from the statute

Legal rules governing adoption, divorce, and other matters of family law
Court documents requiring execution in connection with court proceedings
Notice of utility termination, default or foreclosure under mortgage or lease, termination of health or life insurance, and product recalls and safety notices
Notices that accompany transportation or handling of hazardous materials, pesticides, and other toxic materials

Expressly limits regulatory authority to impede or obstruct effective use of the statute
Limits Transferable Records to promissory notes secured by an interest in real property
No variation by agreement
Omits default rules for

Statute's application is "limited" to commercial (including consumer) and business transactions in or affecting interstate or foreign commerce
Limitation is based on breadth of Interstate Commerce Clause in Constitution
Any interstate nexus should be sufficient

Adoption of the Official Text of the UETA (before or after ESIGN enactment)
Adoption of another statute, or any regulation (under UETA, ESIGN or otherwise), that is

Official Text or nothing - any non-uniform amendments invalidate entire statute
Official Text survives - any non-uniform amendment is invalid
Official Text survives if consistent - Entire statute must be evaluated for consistency with ESIGN
Official text plus consistent provisions - Provisions from UETA Official Text survive, plus non-uniform amendments okay if consistent with ESIGN

State can establish rules governing filing of records without regard to ESIGN
ESIGN Consumer consent requirements and retention and access rules only apply to transactions if underlying statute or rule of law requires a writing

Excludes from the UETA any "law governing the conveyance of any interest in real property"
Defaults to ESIGN

Nothing in ESIGN prevents state from adopting statute with consistent rules, but narrower scope than ESIGN
But�that means that ESIGN covers all transactions in interstate commerce excluded from state law

Excludes any "law governing the creation or transfer of any negotiable instrument or any instrument establishing title or an interest in title."
Doesn't impact transferable record provisions in UETA
Kentucky preserves permissive UETA consumer consent rules

North Carolina addition of non-uniform ESIGN Consent to the UETA
New York non-uniform statute with restrictive definition of signature
West Virginia requirement of notice to obligor before obligation to new transferee on electronic note becomes enforceable