71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
Enrolled
House Bill 2112
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Representative Susan
Morgan, Representative Tim Knopp, and Representative Jeff
Merkley)
CHAPTER ................
AN ACT
Relating to electronic transactions; creating new provisions;
amending ORS 79.4016, 79.6025, 165.002, 192.825, 192.830,
192.835, 192.850, 194.582 and 709.335 and section 2, chapter
851, Oregon Laws 1999; repealing ORS 192.840 and 192.855 and
section 1, chapter 122, Oregon Laws 2001 (Enrolled House Bill
2040); and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Short Title. Sections 1 to 21 of this 2001 Act
may be cited as the Uniform Electronic Transactions Act. + }
SECTION 2. { + Definitions. As used in sections 1 to 21 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 21 of this 2001 Act
and 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.
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(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
of 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 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, which 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. { + Scope. (1) Except as otherwise provided in
subsection (2) of this section, sections 1 to 21 of this 2001 Act
apply to electronic records and electronic signatures relating to
a transaction.
(2) Sections 1 to 21 of this 2001 Act do not apply to a
transaction to the extent it is governed by:
(a) A law governing the creation and execution of wills,
codicils or testamentary trusts; or
(b) The Uniform Commercial Code other than ORS 71.1070, 71.2060
and 72.1010 to 72.7250 and ORS chapter 72A.
(3) Sections 1 to 21 of this 2001 Act apply to an electronic
record or electronic signature otherwise excluded from the
application of sections 1 to 21 of this 2001 Act under subsection
(2) of this section to the extent it is governed by a law other
than those specified in subsection (2) of this section.
(4) A transaction subject to sections 1 to 21 of this 2001 Act
is also subject to other applicable substantive law. + }
SECTION 4. { + Prospective Application. Sections 1 to 21 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. { + Use of Electronic Records and Electronic
Signatures; Variation by Agreement. (1) Sections 1 to 21 of this
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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 21 of this 2001 Act apply only to
transactions between parties, each of which has agreed to conduct
transactions by electronic means. Whether the parties agree to
conduct a transaction by electronic means is determined from the
context and surrounding circumstances, including the parties'
conduct.
(3) A party that agrees to conduct a transaction by electronic
means may refuse to conduct other transactions by electronic
means. The right granted by this subsection may not be waived by
agreement.
(4) Except as otherwise provided in sections 1 to 21 of this
2001 Act, the effect of any provision of sections 1 to 21 of this
2001 Act may be varied by agreement. The presence in certain
provisions of sections 1 to 21 of this 2001 Act of the words '
unless otherwise agreed,' or words of similar import, does not
imply that the effect of other provisions of sections 1 to 21 of
this 2001 Act may not be varied by agreement.
(5) Whether an electronic record or electronic signature has
legal consequences is determined by sections 1 to 21 of this 2001
Act and other applicable law. + }
SECTION 6. { + Construction and Application. Sections 1 to 21
of this 2001 Act must be construed and applied:
(1) To facilitate electronic transactions consistent with other
applicable law;
(2) To be consistent with reasonable practices concerning
electronic transactions and with the continued expansion of those
practices; and
(3) To effectuate the general purpose of sections 1 to 21 of
this 2001 Act to make uniform the law with respect to the subject
of sections 1 to 21 of this 2001 Act among states enacting
it. + }
SECTION 7. { + Legal Recognition of Electronic Records,
Electronic Signatures and Electronic Contracts. (1) A record or
signature may not be denied legal effect or enforceability solely
because it is in electronic form.
(2) A contract may not be denied legal effect or enforceability
solely because an electronic record was used in its 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. { + Provision of Information in Writing;
Presentation of Records. (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 its 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 21 of this 2001 Act
requires a record (i) to be posted or displayed in a certain
manner, (ii) to be sent, communicated or transmitted by a
specified method, or (iii) to contain information that is
formatted in a certain manner, the following rules apply:
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(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 21 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 21 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. { + Attribution and Effect of Electronic Record
and Electronic Signature. (1) An electronic record or electronic
signature is attributable to a person if it 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 its creation, execution or adoption, including the
parties' agreement, if any, and otherwise as provided by law. + }
SECTION 10. { + Effect of Change or Error. 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 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.
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(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 of mistake, and the parties' contract, if any.
(4) Subsections (2) and (3) of this section may not be varied
by agreement. + }
SECTION 11. { + Notarization and Acknowledgment. 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. { + Retention of Electronic Records; Originals.
(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 it 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 requirements of
subsection (1) of this section are satisfied.
(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 subject to the agency's jurisdiction. + }
SECTION 13. { + Admissibility in Evidence. In a proceeding,
evidence of a record or signature may not be excluded solely
because it is in electronic form. + }
SECTION 14. { + Automated Transaction. 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
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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 it. + }
SECTION 15. { + Time and Place of Sending and Receipt. (1)
Unless otherwise agreed between the sender and the recipient, an
electronic record is sent when it:
(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 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) It 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) It is in a form capable of being processed by that 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 deemed 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. { + Transferable Records. (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.
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(2) A person has control of a transferable record if a 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) A system satisfies subsection (2) of this section, and a
person is deemed 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, 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. { + Creation and Retention of Electronic Records
and Conversion of Written Records by Governmental Agencies. Each
governmental agency of this state shall determine whether, and
the extent to which, it will create and retain electronic records
and convert written records to electronic records. + }
SECTION 18. { + Acceptance and Distribution of Electronic
Records by Governmental Agencies. (1) Except as otherwise
provided in section 12 (6) of this 2001 Act, each governmental
Enrolled House Bill 2112 (HB 2112-B) Page 7
agency of this state shall determine whether, and the extent to
which, it 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 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.
(3) Except as otherwise provided in section 12 (6) of this 2001
Act, sections 1 to 21 of this 2001 Act do not require a
governmental agency of this state to use or permit the use of
electronic records or electronic signatures. + }
SECTION 19. { + Interoperability. A governmental agency in
this state that adopts standards pursuant to section 18 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. + }
SECTION 20. { + Severability Clause. + } { + If any provision
of sections 1 to 21 of this 2001 Act or its application to any
person or circumstance is held invalid, the invalidity does not
affect other provisions of sections 1 to 21 of this 2001 Act that
can be given effect without the invalid provision or application,
and to this end the provisions of sections 1 to 21 of this 2001
Act are severable. + }
SECTION 21. { + Sections 1 to 21 of this 2001 Act constitute
the adoption of the Uniform Electronic Transactions Act as
approved and recommended for enactment by the National Conference
of Commissioners on Uniform State Laws in 1999 and supersede the
provisions of section 101 of the federal Electronic Signatures in
Global and National Commerce Act (P.L. 106-229) in accordance
with section 102(a) of the federal Act. + }
SECTION 22. { + For purposes of sections 17, 18 and 19 of this
2001 Act, the Oregon Department of Administrative Services shall
make determinations and adopt standards for state agencies. As
used in this section, 'state agency' includes every state officer
and board, commission, department, institution, branch and agency
of the state government whose costs are paid wholly or in part
from funds held in the State Treasury, except the Legislative
Enrolled House Bill 2112 (HB 2112-B) Page 8
Assembly, the courts, the district attorney for each county and
their officers and committees. + }
SECTION 23. { + Nothing in section 17 of this 2001 Act limits
or modifies the powers and duties of the State Archivist under
ORS 192.005 to 192.170 and 357.805 to 357.895. + }
SECTION 24. { + (1) As used in this section:
(a) 'Consumer' means:
(A) An individual who obtains, through a transaction, products
or services that are used primarily for personal, family or
household purposes; and
(B) The legal representative of the individual.
(b) 'Electronic record,' 'information' and ' transaction' have
the meanings given those terms in section 2 of this 2001 Act.
(2) Notwithstanding sections 1 to 21 of this 2001 Act, if a
statute, rule or other rule of law requires that information
relating to a transaction be provided or made available to a
consumer in writing, the use of an electronic record to provide
or make available, whichever is required, the information
satisfies the requirement that the information be in writing if:
(a) The consumer has affirmatively consented to the use of the
electronic record and has not withdrawn the consent;
(b) The consumer, before consenting, is provided with a clear
and conspicuous statement:
(A) Informing the consumer of:
(i) Any right or option of the consumer to have the record
provided or made available on paper or in other nonelectronic
form; and
(ii) The right of the consumer to withdraw the consent to have
the record provided or made available in an electronic form and
of any conditions, consequences, which may include termination of
the parties' relationship, or fees in the event of the withdrawal
of the consent;
(B) Informing the consumer of whether the consent applies:
(i) Only to the particular transaction that gave rise to the
obligation to provide or make available the record; or
(ii) To identified categories of records that may be provided
or made available during the course of the parties' relationship;
(C) Describing the procedures the consumer must use to withdraw
consent as provided in subparagraph (A) of this paragraph and to
update information needed to contact the consumer electronically;
and
(D) Informing the consumer:
(i) How, after the consent, the consumer may, upon request,
obtain a paper copy of an electronic record; and
(ii) Whether any fee will be charged for the paper copy of an
electronic record;
(c) The consumer:
(A) Before consenting, is provided with a statement of the
hardware and software requirements for access to and retention of
the electronic records; and
(B) Consents electronically, or confirms the consent
electronically, in a manner that reasonably demonstrates that the
consumer can access information in the electronic form that will
be used to provide the information that is the subject of the
consent; and
(d) After the consent of a consumer in accordance with
paragraph (a) of this subsection, if a change in the hardware or
software requirements needed to access or retain electronic
records creates a material risk that the consumer will not be
Enrolled House Bill 2112 (HB 2112-B) Page 9
able to access or retain a subsequent electronic record that was
the subject of the consent, the person providing the record:
(A) Provides the consumer with a statement of:
(i) The revised hardware and software requirements for access
to and retention of the electronic records; and
(ii) The consumer's right to withdraw consent without
imposition of any fees for the withdrawal and without the
imposition of any condition or consequence that was not disclosed
under paragraph (b)(A) of this subsection; and
(B) Again complies with paragraph (c) of this subsection.
(3)(a) Nothing in sections 1 to 21 of this 2001 Act affects the
content or timing of any disclosure or other record required to
be provided or made available to any consumer under any statute,
rule or other rule of law.
(b) If a law enacted before October 1, 2000, expressly requires
a record to be provided or made available by a specified method
that requires verification or acknowledgment of receipt, the
record may be provided or made available electronically only if
the method used provides verification or acknowledgment of
receipt, whichever is required.
(4) The legal effectiveness, validity or enforceability of any
contract executed by a consumer may not be denied solely because
of the failure of obtain electronic consent or confirmation of
consent by that consumer in accordance with subsection (2)(c)(B)
of this section.
(5) Withdrawal of consent by a consumer may not affect the
legal effectiveness, validity or enforceability of electronic
records provided or made available to that consumer in accordance
with subsection (2) of this section before implementation of the
consumer's withdrawal of consent. A consumer's withdrawal of
consent shall be effective within a reasonable period of time
after receipt of the withdrawal by the provider of the record.
Failure to comply with subsection (2)(d) of this section may, at
the election of the consumer, be treated as a withdrawal of
consent for purposes of this subsection.
(6) If a statute, rule or other rule of law requires that
information relating to a transaction be provided or made
available to a consumer in writing, an oral communication or a
recording of an oral communication may not qualify as an
electronic record for purposes of this section except as
otherwise provided under applicable law.
(7) Subsections (2) to (6) of this section do not apply to any
records that are provided or made available to a consumer who has
consented before the effective date of this 2001 Act to receive
such records in electronic form as permitted by any statute, rule
or other rule of law.
(8) Notwithstanding sections 1 to 21 of this 2001 Act, if a
statute, rule or other rule of law requires that a contract or
other record relating to a transaction be provided or made
available to a consumer in writing, the legal effectiveness,
validity or enforceability of an electronic record of the
contract or other record may be denied if the electronic record
is not in a form that is capable of being retained and accurately
reproduced for later reference by all parties or persons who are
entitled to retain the contract or other record.
(9) Nothing in sections 1 to 21 of this 2001 Act authorizes
using an electronic record to provide or deliver any notice of:
(a) The cancellation or termination of utility services,
including water, heat and power;
Enrolled House Bill 2112 (HB 2112-B) Page 10
(b) Default, acceleration, repossession, foreclosure or
eviction, or the right to cure, under a credit agreement secured
by, or a rental agreement for, a primary residence of an
individual;
(c) The cancellation or termination of health insurance or
benefits or life insurance benefits, excluding annuities; or
(d) Recall of a product, or material failure of a product, that
risks endangering health or safety.
(10) Sections 1 to 21 of this 2001 Act do not apply to any
document required to accompany any transportation or handling of
hazardous materials, pesticides or other toxic or dangerous
materials. + }
SECTION 25. ORS 79.4016 is amended to read:
79.4016. (1) A financing statement, continuation statement,
statement of assignment, statement of partial release,
termination statement or other statement filed with the Secretary
of State under ORS 79.1010 to 79.5070 may be filed in an
electronic format.
(2) Statements filed electronically under this section shall
conform to the technical specifications for electronic filing as
prescribed by the Secretary of State by rule.
(3) Signatures required on any statement filed in an electronic
format shall be supplied as electronic signatures as
{ - described in ORS 192.825 to 192.855 - } { + defined in
section 2 of this 2001 Act + }.
SECTION 25a. { + If Senate Bill 171 becomes law, section 25 of
this 2001 Act (amending ORS 79.4016) is repealed. + }
SECTION 26. ORS 79.6025 is amended to read:
79.6025. (1) An effective financing statement, amendment to an
effective financing statement, continuation statement, statement
that an effective financing statement has lapsed or other
statement filed with the Secretary of State under ORS 79.6020 to
79.7010 may be filed in an electronic format.
(2) Statements filed electronically under this section shall
conform to the technical specifications for electronic filing as
prescribed by the Secretary of State by rule.
(3) Signatures required on any statement filed in an electronic
format shall be supplied as electronic signatures as
{ - described in ORS 192.825 to 192.855 - } { + defined in
section 2 of this 2001 Act + }.
SECTION 27. ORS 165.002 is amended to read:
165.002. As used in ORS 165.002 to 165.022, and 165.032 to
165.070, unless the context requires otherwise:
(1) 'Written instrument' means any paper, document,
instrument { + , + } { - or - } article { + or electronic
record + } containing written or printed matter or the equivalent
thereof, whether complete or incomplete, used for the purpose of
reciting, embodying, conveying or recording information or
constituting a symbol or evidence of value, right, privilege or
identification, which is capable of being used to the advantage
or disadvantage of some person.
(2) 'Complete written instrument' means one which purports to
be a genuine written instrument fully drawn with respect to every
essential feature thereof.
(3) 'Incomplete written instrument' means one which contains
some matter by way of content or authentication but which
requires additional matter in order to render it a complete
written instrument.
(4) To 'falsely make' a written instrument means to make or
draw a complete written instrument in its entirety, or an
Enrolled House Bill 2112 (HB 2112-B) Page 11
incomplete written instrument which purports to be an authentic
creation of its ostensible maker, but which is not, either
because the ostensible maker is fictitious or because, if real,
the ostensible maker did not authorize the making or drawing
thereof.
(5) To 'falsely complete' a written instrument means to
transform, by adding, inserting or changing matter, an incomplete
written instrument into a complete one, without the authority of
anyone entitled to grant it, so that the complete written
instrument falsely appears or purports to be in all respects an
authentic creation of its ostensible maker or authorized by the
ostensible maker.
(6) To 'falsely alter' a written instrument means to change,
without authorization by anyone entitled to grant it, a written
instrument, whether complete or incomplete, by means of erasure,
obliteration, deletion, insertion of new matter, transposition of
matter, or in any other manner, so that the instrument so altered
falsely appears or purports to be in all respects an authentic
creation of its ostensible maker or authorized by the ostensible
maker.
(7) To 'utter' means to issue, deliver, publish, circulate,
disseminate, transfer or tender a written instrument or other
object to another.
(8) 'Forged instrument' means a written instrument which has
been falsely made, completed or altered. { +
(9) 'Electronic record' has the meaning given that term in
section 2 of this 2001 Act.
(10) 'Signature' includes, but is not limited to, an electronic
signature, as defined in section 2 of this 2001 Act. + }
SECTION 28. { + ORS 165.027 is added to and made a part of ORS
165.002 to 165.022. + }
SECTION 29. ORS 194.582 is amended to read:
194.582. (1) As used in this section, 'electronic signature'
has the meaning given that term in { - ORS 192.835 - } { +
section 2 of this 2001 Act + }.
(2) Notwithstanding any provision of ORS 194.005 to 194.200 or
194.505 to 194.595:
(a) A person may use an electronic signature in the manner
prescribed by the Secretary of State by rule whenever the
signature of the person is required on any electronic document
presented for notarization;
(b) In performing any notarial act involving an electronic
signature of a person described in paragraph (a) of this
subsection, a notarial officer, in the manner prescribed by the
Secretary of State by rule, shall accept the electronic signature
of the person; and
(c) In addition to the requirements of ORS 194.505 to 194.595,
the notarial certificate of an act signed with an electronic
signature shall be attached electronically by the notarial
officer in the manner prescribed by the Secretary of State by
rule and shall contain the phrase 'signed by electronic
signature' or words to that effect.
(3) The Secretary of State shall adopt rules necessary to
implement this section.
SECTION 30. Section 2, chapter 851, Oregon Laws 1999, is
amended to read:
{ + Sec. 2. + } (1) Notwithstanding any other provision of
law, if a city authorized to do so by section 1 { - of this
1999 Act - } { + , chapter 851, Oregon Laws 1999, + } chooses to
operate a camera demonstration project that complies with
Enrolled House Bill 2112 (HB 2112-B) Page 12
{ - this 1999 Act - } { + chapter 851, Oregon Laws 1999 + }, a
citation for violation of ORS 811.265 may be issued on the basis
of photographs from a camera taken without the presence of a
police officer if the following conditions are met:
(a) Signs are posted, so far as is practicable, on all major
routes entering the jurisdiction indicating that compliance with
traffic control devices is enforced through cameras.
(b) Signs are posted near each traffic control device at which
a camera is installed, indicating that a camera may be in
operation at that device.
(c) The citation is mailed to the registered owner of the
vehicle, or to the driver if identifiable, within 10 business
days of the alleged violation.
(d) The registered owner is given 30 days from the date the
citation is mailed to respond to the citation.
(e) A police officer who has reviewed the photograph signs the
citation. The citation may be prepared on a digital medium, and
the signature may be electronic in accordance with the provisions
of { - ORS 192.825 to 192.855 - } { + sections 1 to 21 of
this 2001 Act + }.
(2) If the person named as the registered owner of a vehicle in
the current records of the Department of Transportation fails to
respond to a citation issued under subsection (1) of this
section, the provisions of ORS 153.555 shall apply, and a
judgment may be entered for failure to appear after notice has
been given that the judgment will be entered.
(3) A rebuttable presumption exists that the registered owner
of the vehicle was the driver of the vehicle when the citation
was issued and delivered as provided in this section.
(4) A person issued a citation under subsection (1) of this
section may respond to the citation by submitting a certificate
of innocence or a certificate of nonliability under subsection
(6) of this section or any other response allowed by law.
(5) A citation for violation of ORS 811.265 issued on the basis
of photographs from a camera installed as provided in { - this
1999 Act - } { + chapter 851, Oregon Laws 1999, + } may be
delivered by mail or otherwise to the registered owner of the
vehicle or to the driver if the driver is identifiable from the
photograph.
(6)(a) If a registered owner of a vehicle responds to a
citation issued under subsection (1) of this section by
submitting, within 30 days from the mailing of the citation, a
certificate of innocence swearing or affirming that the owner was
not the driver of the vehicle and a photocopy of the owner's
driver license, the citation shall be dismissed. The citation may
be reissued if the jurisdiction verifies that the registered
owner appears to have been the driver at the time of the
violation.
(b) If a business or public agency responds to a citation
issued under subsection (1) of this section by submitting, within
30 days from the mailing of the citation, a certificate of
nonliability stating that at the time of the alleged violation
the vehicle was in the custody and control of an employee or was
in the custody and control of a renter or lessee under the terms
of a motor vehicle rental agreement or lease, and if the business
or public agency provides the driver license number, name and
address of the employee, renter or lessee, the citation shall be
dismissed with respect to the business or public agency. The
citation may then be reissued and delivered by mail or otherwise
Enrolled House Bill 2112 (HB 2112-B) Page 13
to the employee, renter or lessee identified in the certificate
of nonliability.
(7) The penalties for and all consequences of a violation of
ORS 811.265 initiated by the use of a camera installed as
provided in { - this 1999 Act - } { + chapter 851, Oregon
Laws 1999, + } are the same as for a violation initiated by any
other means.
(8) A registered owner or an employee, renter or lessee against
whom a judgment for failure to appear is entered may move the
court to relieve the owner or the employee, renter or lessee from
the judgment as provided in ORS 153.555 if the failure to appear
was due to mistake, inadvertence, surprise or excusable neglect.
SECTION 30a. { + If House Bill 2380 becomes law, section 30 of
this 2001 Act (amending section 2, chapter 851, Oregon Laws 1999)
is repealed and section 2, chapter 851, Oregon Laws 1999, as
amended by section 2, chapter ___, Oregon Laws 2001 (Enrolled
House Bill 2380), is amended to read: + }
{ + Sec. 2. + } (1) Notwithstanding any other provision of
law, if a city authorized to do so by section 1, chapter 851,
Oregon Laws 1999, chooses to operate a camera that complies with
this section and section 1, chapter 851, Oregon Laws 1999, a
citation for violation of ORS 811.265 may be issued on the basis
of photographs from a camera taken without the presence of a
police officer if the following conditions are met:
(a) Signs are posted, so far as is practicable, on all major
routes entering the jurisdiction indicating that compliance with
traffic control devices is enforced through cameras.
(b) Signs are posted near each traffic control device at which
a camera is installed, indicating that a camera may be in
operation at that device.
(c) The citation is mailed to the registered owner of the
vehicle, or to the driver if identifiable, within 10 business
days of the alleged violation.
(d) The registered owner is given 30 days from the date the
citation is mailed to respond to the citation.
(e) A police officer who has reviewed the photograph signs the
citation. The citation may be prepared on a digital medium, and
the signature may be electronic in accordance with the provisions
of { - ORS 192.825 to 192.855 - } { + sections 1 to 21 of
this 2001 Act + }.
(2) If the person named as the registered owner of a vehicle in
the current records of the Department of Transportation fails to
respond to a citation issued under subsection (1) of this
section, a default judgment under ORS 153.102 may be entered for
failure to appear after notice has been given that the judgment
will be entered.
(3) A rebuttable presumption exists that the registered owner
of the vehicle was the driver of the vehicle when the citation
was issued and delivered as provided in this section.
(4) A person issued a citation under subsection (1) of this
section may respond to the citation by submitting a certificate
of innocence or a certificate of nonliability under subsection
(6) of this section or any other response allowed by law.
(5) A citation for violation of ORS 811.265 issued on the basis
of photographs from a camera installed as provided in this
section and section 1, chapter 851, Oregon Laws 1999, may be
delivered by mail or otherwise to the registered owner of the
vehicle or to the driver if the driver is identifiable from the
photograph.
Enrolled House Bill 2112 (HB 2112-B) Page 14
(6)(a) If a registered owner of a vehicle responds to a
citation issued under subsection (1) of this section by
submitting, within 30 days from the mailing of the citation, a
certificate of innocence swearing or affirming that the owner was
not the driver of the vehicle and a photocopy of the owner's
driver license, the citation shall be dismissed. The citation may
be reissued if the jurisdiction verifies that the registered
owner appears to have been the driver at the time of the
violation.
(b) If a business or public agency responds to a citation
issued under subsection (1) of this section by submitting, within
30 days from the mailing of the citation, a certificate of
nonliability stating that at the time of the alleged violation
the vehicle was in the custody and control of an employee or was
in the custody and control of a renter or lessee under the terms
of a motor vehicle rental agreement or lease, and if the business
or public agency provides the driver license number, name and
address of the employee, renter or lessee, the citation shall be
dismissed with respect to the business or public agency. The
citation may then be reissued and delivered by mail or otherwise
to the employee, renter or lessee identified in the certificate
of nonliability.
(7) The penalties for and all consequences of a violation of
ORS 811.265 initiated by the use of a camera installed as
provided in this section and section 1, chapter 851, Oregon Laws
1999, are the same as for a violation initiated by any other
means.
(8) A registered owner or an employee, renter or lessee against
whom a judgment for failure to appear is entered may move the
court to relieve the owner or the employee, renter or lessee from
the judgment as provided in ORS 153.105 if the failure to appear
was due to mistake, inadvertence, surprise or excusable neglect.
SECTION 30b. { + The repeal of section 30 of this 2001 Act
(amending section 2, chapter 851, Oregon Laws 1999) and the
amendments to section 2, chapter 851, Oregon Laws 1999, by
section 30a of this 2001 Act become operative on the effective
date of chapter ___, Oregon Laws 2001 (Enrolled House Bill
2380). + }
SECTION 31. ORS 192.825 is amended to read:
192.825. ORS 192.825 to 192.855 shall be known as the
{ - Electronic - } { + Digital + } Signature Act.
SECTION 32. ORS 192.830 is amended to read:
192.830. It is the intent of the Legislative Assembly that ORS
192.825 to 192.855:
(1) Facilitate economic development and efficient delivery of
government services by means of reliable electronic messages.
(2) Enhance public confidence in the use of
{ - electronic - } { + digital + } signatures.
(3) Minimize the incidence of forged { - electronic - }
{ + digital + } signatures and fraud in electronic commerce.
(4) Foster the development of electronic commerce through the
use of { - electronic - } { + digital + } signatures to lend
authenticity and integrity to writings in any electronic medium.
(5) Ensure that proper management oversight and accountability
are maintained for agency-conducted electronic commerce.
SECTION 33. ORS 192.835 is amended to read:
192.835. As used in ORS 192.825 to 192.855:
(1) 'Asymmetric cryptosystem' means an algorithm or series of
algorithms that provide a secure key pair.
(2) 'Certificate' means a computer-based record that:
Enrolled House Bill 2112 (HB 2112-B) Page 15
(a) Identifies the certification authority;
(b) Identifies the subscriber;
(c) Contains the subscriber's public key;
(d) Is digitally signed by the certification authority; and
(e) Specifies its operational period.
(3) 'Certification authority' means a person who issues and
authenticates a certificate.
(4) 'Digital signature' means a type of electronic signature
that transforms a message using an asymmetric cryptosystem such
that a person having the initial message and the signer's public
key can accurately determine:
(a) Whether the transformation was created using the private
key that corresponds to the signer's public key; and
(b) Whether the initial message has been altered since the
transformation was made.
(5) 'Electronic signature' { - means any letters, characters
or symbols, manifested by electronic or similar means, executed
or adopted by a party with an intent to authenticate a writing. A
writing is electronically signed if an electronic signature is
logically associated with such writing - } { + has the meaning
given that term in section 2 of this 2001 Act + }.
(6) 'Key pair' means a private key and its corresponding public
key in an asymmetric cryptosystem, under which the public key
verifies a digital signature the private key creates.
(7) 'Repository' means a system for storing and retrieving
certificates and information about certificates.
{ - (8) 'Writing' includes handwriting, printing, typewriting
and all other methods and means of forming letters and characters
upon paper, stone, wood or other materials. 'Writing' also
includes information that is created or stored in any electronic
medium and is retrievable in perceivable form. - }
SECTION 34. ORS 192.850 is amended to read:
192.850. The Oregon Department of Administrative Services shall
{ - be responsible for adopting and implementing - } { + adopt
rules for the use of digital signatures by state agencies. The
rules shall include + } control processes and procedures to
ensure adequate integrity, security and confidentiality of
{ + state agency + } business transactions conducted using
electronic commerce, and to ensure that those transactions can be
audited as may be necessary for the normal conduct of
business. { + As used in this section, 'state agency' has the
meaning given that term in section 22 of this 2001 Act. + }
SECTION 34a. { + Section 1, chapter 122, Oregon Laws 2001
(Enrolled House Bill 2040) (amending ORS 192.850), is
repealed. + }
SECTION 35. ORS 709.335 is amended to read:
709.335. As provided in ORS 192.825 to 192.855, a trust company
may conduct transactions using { - electronic and - } digital
signatures, may be a certification authority and may issue
certificates for the purpose of verifying digital signatures.
SECTION 36. { + ORS 192.840 and 192.855 are repealed. + }
SECTION 37. { + The section captions used in this 2001 Act are
provided only for the convenience of the reader and do not become
part of the statutory law of this state or express any
legislative intent in the enactment of this 2001 Act. + }
SECTION 38. { + This 2001 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2001 Act takes effect on
its passage. + }
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Enrolled House Bill 2112 (HB 2112-B) Page 16
Passed by House May 3, 2001
Repassed by House June 6, 2001
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate June 4, 2001
...........................................................
President of Senate
Enrolled House Bill 2112 (HB 2112-B) Page 17
Received by Governor:
......M.,............., 2001
Approved:
......M.,............., 2001
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2001
...........................................................
Secretary of State
Enrolled House Bill 2112 (HB 2112-B) Page 18