71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 354-1
House Bill 2039
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Joint Legislative Committee
on Information Management and Technology for Oregon Internet
Commission)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Adopts Uniform Electronic Transactions Act. Provides
definitions. Prescribes applicability to and procedures for
electronic transactions.
A BILL FOR AN ACT
Relating to Uniform Electronic Transactions Act.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 1 to 19 of this 2001 Act may be cited
as the Uniform Electronic Transactions Act. + }
SECTION 2. { + As used in sections 1 to 19 of this 2001 Act:
(1) 'Agreement' means the bargain of the parties in fact, as
found in their language or inferred from other circumstances and
from rules, regulations and procedures given the effect of
agreements under laws otherwise applicable to a particular
transaction.
(2) 'Automated transaction' means a transaction conducted or
performed, in whole or in part, by electronic means or electronic
records, in which the acts or records of one or both parties are
not reviewed by an individual in the ordinary course in forming a
contract, performing under an existing contract or fulfilling an
obligation required by the transaction.
(3) 'Computer program' means a set of statements or
instructions to be used directly or indirectly in an information
processing system in order to bring about a certain result.
(4) 'Contract' means the total legal obligation resulting from
the parties' agreement under sections 1 to 19 of this 2001 Act
and any other applicable law.
(5) 'Electronic' means relating to technology having
electrical, digital, magnetic, wireless, optical, electromagnetic
or similar capabilities.
(6) 'Electronic agent' means a computer program or an
electronic or other automated means used independently to
initiate an action or respond to electronic records or
performances in whole or in part, without review or action by an
individual.
(7) 'Electronic record' means a record created, generated,
sent, communicated, received or stored by electronic means.
(8) 'Electronic signature' means an electronic sound, symbol or
process attached to or logically associated with a record and
executed or adopted by a person with the intent to sign the
record.
(9) 'Governmental agency' means an executive, legislative or
judicial agency, department, board, commission, authority,
institution or instrumentality of the federal government or of a
state or of a county, municipality or other political subdivision
in a state.
(10) 'Information' means data, text, images, sounds, codes,
computer programs, software, databases or the like.
(11) 'Information processing system' means an electronic system
for creating, generating, sending, receiving, storing, displaying
or processing information.
(12) 'Person' means an individual, corporation, business trust,
estate, trust, partnership, limited liability company,
association, joint venture, governmental agency, public
corporation or any other legal or commercial entity.
(13) 'Record' means information that is inscribed on a tangible
medium or that is stored in an electronic or other medium and is
retrievable in perceivable form.
(14) 'Security procedure' means a procedure employed for the
purpose of verifying that an electronic signature, record or
performance is that of a specific person or for detecting changes
or errors in the information in an electronic record. 'Security
procedure' includes, but is not limited to, a procedure that
requires the use of algorithms or other codes, identifying words
or numbers, encryption or callback or other acknowledgment
procedures.
(15) 'State' means a state of the United States, the District
of Columbia, Puerto Rico, the United States Virgin Islands or any
territory or insular possession subject to the jurisdiction of
the United States. 'State' includes an Indian tribe or band or an
Alaskan native village that is recognized by federal law or
formally acknowledged by a state.
(16) 'Transaction' means an action or set of actions occurring
between two or more persons relating to the conduct of business,
commercial or governmental affairs. + }
SECTION 3. { + (1) Except as otherwise provided in subsection
(2) of this section, sections 1 to 19 of this 2001 Act apply to
electronic records and electronic signatures relating to a
transaction.
(2) Sections 1 to 19 of this 2001 Act do not apply to a
transaction to the extent the transaction is governed by:
(a) A law governing the creation and execution of wills,
codicils or testamentary trusts; and
(b) The Uniform Commercial Code other than ORS 71.1070 and
71.2060 and ORS chapters 72 and 72A.
(3) Sections 1 to 19 of this 2001 Act apply to an electronic
record or electronic signature otherwise excluded from the
application of sections 1 to 19 of this 2001 Act under subsection
(2) of this section to the extent the record or signature is
governed by a law other than those specified in subsection (2) of
this section.
(4) A transaction subject to sections 1 to 19 of this 2001 Act
is also subject to other applicable law. + }
SECTION 4. { + Sections 1 to 19 of this 2001 Act apply to any
electronic record or electronic signature created, generated,
sent, communicated, received or stored on or after the effective
date of this 2001 Act. + }
SECTION 5. { + (1) Sections 1 to 19 of this 2001 Act do not
require a record or signature to be created, generated, sent,
communicated, received, stored or otherwise processed or used by
electronic means or in electronic form.
(2) Sections 1 to 19 of this 2001 Act apply only to
transactions between parties, each of which has agreed to conduct
transactions by electronic means. The context and surrounding
circumstances, including the parties' conduct, determine whether
the parties agree to conduct a transaction by electronic means.
(3) A party that agrees to conduct a transaction by electronic
means may refuse to conduct other transactions by electronic
means. A person may not waive the right granted by this
subsection by agreement.
(4) Except as otherwise provided in sections 1 to 19 of this
2001 Act, the parties may vary the effect of any provision of
sections 1 to 19 of this 2001 Act by agreement. The presence in
certain provisions of sections 1 to 19 of this 2001 Act of the
words 'unless otherwise agreed,' or words of similar import, does
not imply that the parties may not vary the effect of other
provisions of sections 1 to 19 of this 2001 Act by agreement.
(5) Sections 1 to 19 of this 2001 Act and other applicable law
determine whether an electronic record or electronic signature
has legal consequences. + }
SECTION 6. { + Sections 1 to 19 of this 2001 Act must be
construed and applied to:
(1) Facilitate electronic transactions consistent with other
applicable law;
(2) Be consistent with reasonable practices concerning
electronic transactions and with the continued expansion of those
practices; and
(3) Effectuate the general purpose of sections 1 to 19 of this
2001 Act to make uniform the law with respect to the subject of
sections 1 to 19 of this 2001 Act among states enacting it. + }
SECTION 7. { + (1) A record or signature may not be denied
legal effect or enforceability solely because the record or
signature is in electronic form.
(2) A contract may not be denied legal effect or enforceability
solely because an electronic record was used in the contract's
formation.
(3) If a law requires a record to be in writing, an electronic
record satisfies the law.
(4) If a law requires a signature, an electronic signature
satisfies the law. + }
SECTION 8. { + (1) If parties have agreed to conduct a
transaction by electronic means and a law requires a person to
provide, send or deliver information in writing to another
person, the requirement is satisfied if the information is
provided, sent or delivered, as the case may be, in an electronic
record capable of retention by the recipient at the time of
receipt. An electronic record is not capable of retention by the
recipient if the sender or the sender's information processing
system inhibits the ability of the recipient to print or store
the electronic record.
(2) If a law other than sections 1 to 19 of this 2001 Act
requires a record to be posted or displayed in a certain manner,
to be sent, communicated or transmitted by a specified method, or
to contain information that is formatted in a certain manner, the
following rules apply:
(a) The record must be posted or displayed in the manner
specified in the other law.
(b) Except as otherwise provided in subsection (4)(b) of this
section, the record must be sent, communicated or transmitted by
the method specified in the other law.
(c) The record must contain the information formatted in the
manner specified in the other law.
(3) If a sender inhibits the ability of a recipient to store or
print an electronic record, the electronic record is not
enforceable against the recipient.
(4) The requirements of this section may not be varied by
agreement, but:
(a) To the extent a law other than sections 1 to 19 of this
2001 Act requires information to be provided, sent or delivered
in writing but permits that requirement to be varied by
agreement, the requirement under subsection (1) of this section
that the information be in the form of an electronic record
capable of retention may also be varied by agreement; and
(b) A requirement under a law other than sections 1 to 19 of
this 2001 Act to send, communicate or transmit a record by
first-class mail, postage prepaid may be varied by agreement to
the extent permitted by the other law. + }
SECTION 9. { + (1) An electronic record or electronic
signature is attributable to a person if the record or signature
was the act of the person. The act of the person 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.
(2) The effect of an electronic record or electronic signature
attributed to a person under subsection (1) of this section is
determined from the context and surrounding circumstances at the
time of the record's or signature's creation, execution or
adoption, including the parties' agreement, if any, and otherwise
as provided by law. + }
SECTION 10. { + If a change or error in an electronic record
occurs in a transmission between parties to a transaction, the
following rules apply:
(1) If the parties have agreed to use a security procedure to
detect changes or errors and one party has conformed to the
procedure, but the other party has not, and the nonconforming
party would have detected the change or error had that party also
conformed, the conforming party may avoid the effect of the
changed or erroneous electronic record.
(2) In an automated transaction involving an individual, the
individual may avoid the effect of an electronic record that
resulted from an error made by the individual in dealing with the
electronic agent of another person if the electronic agent did
not provide an opportunity for the prevention or correction of
the error and, at the time the individual learns of the error,
the individual:
(a) Promptly notifies the other person of the error and that
the individual did not intend to be bound by the electronic
record received by the other person;
(b) Takes reasonable steps, including, but not limited to,
steps that conform to the other person's reasonable instructions,
to return to the other person or, if instructed by the other
person, to destroy the consideration received, if any, as a
result of the erroneous electronic record; and
(c) Has not used or received any benefit or value from the
consideration, if any, received from the other person.
(3) If neither subsection (1) nor (2) of this section applies,
the change or error has the effect provided by other law,
including the law governing mistake and restitution, and the
parties' contract, if any.
(4) The parties may not vary subsections (2) and (3) of this
section by agreement. + }
SECTION 11. { + If a law requires a signature or record to be
notarized, acknowledged, verified or made under oath, the
requirement is satisfied if the electronic signature of the
person authorized to perform those acts, together with all other
information required to be included by other applicable law, is
attached to or logically associated with the signature or
record. + }
SECTION 12. { + (1) If a law requires that a record be
retained, the requirement is satisfied by retaining an electronic
record of the information in the record that:
(a) Accurately reflects the information set forth in the record
after the record was first generated in its final form as an
electronic record or otherwise; and
(b) Remains accessible for later reference.
(2) A requirement to retain a record in accordance with
subsection (1) of this section does not apply to any information
the sole purpose of which is to enable the record to be sent,
communicated or received.
(3) A person may satisfy subsection (1) of this section by
using the services of another person if the other person
satisfies the requirements of subsection (1) of this section.
(4) If a law requires a record to be presented or retained in
its original form, or provides consequences if the record is not
presented or retained in its original form, that law is satisfied
by an electronic record retained in accordance with subsection
(1) of this section.
(5) If a law requires retention of a check, that requirement is
satisfied by retention of an electronic record of the information
on the front and back of the check in accordance with subsection
(1) of this section.
(6) A record retained as an electronic record in accordance
with subsection (1) of this section satisfies a law requiring a
person to retain a record for evidentiary, audit or like
purposes, unless a law enacted after the effective date of this
2001 Act specifically prohibits the use of an electronic record
for the specified purpose.
(7) This section does not preclude a governmental agency of
this state from specifying additional requirements for the
retention of a record that is subject to the agency's
jurisdiction. + }
SECTION 13. { + In a proceeding, evidence of a record or
signature may not be excluded solely because the record or
signature is in electronic form. + }
SECTION 14. { + In an automated transaction, the following
rules apply:
(1) A contract may be formed by the interaction of electronic
agents of the parties, even if no individual was aware of or
reviewed the electronic agents' actions or the resulting terms
and agreements.
(2) A contract may be formed by the interaction of an
electronic agent and an individual, acting on the individual's
own behalf or for another person, including by an interaction in
which the individual performs actions that the individual is free
to refuse to perform and that the individual knows or has reason
to know will cause the electronic agent to complete the
transaction or performance.
(3) The terms of a contract are determined by the substantive
law applicable to the contract. + }
SECTION 15. { + (1) Unless otherwise agreed between the sender
and the recipient, an electronic record is sent when the record:
(a) Is addressed properly or otherwise directed properly to an
information processing system that the recipient has designated
or uses for the purpose of receiving electronic records or
information of the type sent and from which the recipient is able
to retrieve the electronic record;
(b) Is in a form capable of being processed by that information
processing system; and
(c) Enters an information processing system outside the control
of the sender or of a person that sent the electronic record on
behalf of the sender or enters a region of the information
processing system designated or used by the recipient and that is
under the control of the recipient.
(2) Unless otherwise agreed between a sender and the recipient,
an electronic record is received when:
(a) The record enters an information processing system that the
recipient has designated or uses for the purpose of receiving
electronic records or information of the type sent and from which
the recipient is able to retrieve the electronic record; and
(b) The record is in a form capable of being processed by that
information processing system.
(3) Subsection (2) of this section applies even if the place
the information processing system is located is different from
the place the electronic record is deemed to be received under
subsection (4) of this section.
(4) Unless otherwise expressly provided in the electronic
record or agreed between the sender and the recipient, an
electronic record is considered to be sent from the sender's
place of business and to be received at the recipient's place of
business. For purposes of this subsection, the following rules
apply:
(a) If the sender or recipient has more than one place of
business, the place of business of that person is the place
having the closest relationship to the underlying transaction.
(b) If the sender or the recipient does not have a place of
business, the place of business is the sender's or recipient's
residence, as the case may be.
(5) An electronic record is received under subsection (2) of
this section even if no individual is aware of its receipt.
(6) Receipt of an electronic acknowledgment from an information
processing system described in subsection (2) of this section
establishes that a record was received but, by itself, does not
establish that the content sent corresponds to the content
received.
(7) If a person is aware that an electronic record purportedly
sent under subsection (1) of this section, or purportedly
received under subsection (2) of this section, was not actually
sent or received, the legal effect of the sending or receipt is
determined by other applicable law. Except to the extent
permitted by the other law, the requirements of this subsection
may not be varied by agreement. + }
SECTION 16. { + (1) As used in this section, 'transferable
record' means an electronic record that:
(a) Would be a note under ORS chapter 73 or a document under
ORS chapter 77 if the electronic record were in writing; and
(b) The issuer of the electronic record expressly has agreed is
a transferable record.
(2) A person has control of a transferable record if an
information processing system employed for evidencing the
transfer of interests in the transferable record reliably
establishes that person as the person to which the transferable
record was issued or transferred.
(3) An information processing system satisfies subsection (2)
of this section, and a person is considered to have control of a
transferable record, if the transferable record is created,
stored and assigned in such a manner that:
(a) A single authoritative copy of the transferable record
exists that is unique, identifiable and, except as otherwise
provided in paragraphs (d), (e) and (f) of this subsection,
unalterable;
(b) The authoritative copy identifies the person asserting
control as:
(A) The person to which the transferable record was issued; or
(B) If the authoritative copy indicates that the transferable
record has been transferred, the person to which the transferable
record was most recently transferred;
(c) The authoritative copy is communicated to and maintained by
the person asserting control or its designated custodian;
(d) Copies or revisions that add or change an identified
assignee of the authoritative copy can be made only with the
consent of the person asserting control;
(e) Each copy of the authoritative copy and any copy of a copy
is readily identifiable as a copy that is not the authoritative
copy; and
(f) Any revision of the authoritative copy is readily
identifiable as authorized or unauthorized.
(4) Except as otherwise agreed, a person having control of a
transferable record is the holder, as defined in ORS 71.2010
(20), of the transferable record and has the same rights and
defenses as a holder of an equivalent record or writing under the
Uniform Commercial Code, including, if the applicable statutory
requirements under ORS 73.0302 (1), 77.5010 or 79.3080 are
satisfied, the rights and defenses of a holder in due course, a
holder to which a negotiable document of title has been duly
negotiated or a purchaser, respectively. Delivery, possession and
indorsement are not required to obtain or exercise any of the
rights under this subsection.
(5) Except as otherwise agreed, an obligor under a transferable
record has the same rights and defenses as an equivalent obligor
under equivalent records or writings under the Uniform Commercial
Code.
(6) If requested by a person against which enforcement is
sought, the person seeking to enforce the transferable record
shall provide reasonable proof that the person is in control of
the transferable record. Proof may include access to the
authoritative copy of the transferable record and related
business records sufficient to review the terms of the
transferable record and to establish the identity of the person
having control of the transferable record. + }
SECTION 17. { + The Director of the Oregon Department of
Administrative Services shall determine whether, and the extent
to which, a governmental agency will create and retain electronic
records and convert written records to electronic records. + }
SECTION 18. { + (1) The Director of the Oregon Department of
Administrative Services shall determine whether, and the extent
to which, a governmental agency will send and accept electronic
records and electronic signatures to and from other persons and
otherwise create, generate, communicate, store, process, use and
rely upon electronic records and electronic signatures.
(2) To the extent that a governmental agency uses electronic
records and electronic signatures under subsection (1) of this
section, the governmental agency, giving due consideration to
security, may specify:
(a) The manner and format in which the electronic records must
be created, generated, sent, communicated, received and stored
and the information processing systems established for those
purposes;
(b) If electronic records must be signed by electronic means,
the type of electronic signature required, the manner and format
in which the electronic signature must be affixed to the
electronic record and the identity of, or criteria that must be
met by, any third party used by a person filing a document to
facilitate the process;
(c) Control processes and procedures as appropriate to ensure
adequate preservation, disposition, integrity, security,
confidentiality and auditability of electronic records; and
(d) Any other required attributes for electronic records that
are specified for corresponding nonelectronic records or
reasonably necessary under the circumstances. + }
SECTION 19. { + A governmental agency in this state that
adopts standards pursuant to section 18 (2) of this 2001 Act may
encourage and promote consistency and interoperability with
similar requirements adopted by other governmental agencies of
this state and other states and the federal government and
nongovernmental persons interacting with governmental agencies of
this state. If appropriate, those standards may specify differing
levels of standards from which governmental agencies of this
state may choose in implementing the most appropriate standard
for a particular application. + }
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