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NEW: Massachusetts Legislation
daemon@ATHENA.MIT.EDU (Robert Hettinga)
Wed Nov 5 22:31:20 1997
Date: Wed, 5 Nov 1997 19:24:46 -0500
To: cryptography@c2.net
From: Robert Hettinga <rah@shipwright.com>
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Date: Tue, 4 Nov 1997 14:52:11 -0500
Reply-To: Digital Signature discussion <DIGSIG@VM.TEMPLE.EDU>
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From: Daniel Greenwood <dan@CIVICS.COM>
Subject: NEW: Massachusetts Legislation
Comments: To: "dan.greenwood@state.ma.us" <dan.greenwood@state.ma.us>
To: DIGSIG@VM.TEMPLE.EDU
The new (and probably final) draft of the Massachusetts Electronic
Records and Signature Act was finalized today (11/4/97). It will be
available shortly in html form at www.state.ma.us/itd/legal/mersa.htm
and is attached as a word document and an html file. Commentary and
analysis annotations are being drafted now and will be available
shortly. Thanks to everyone on this list and elsewhere who assisted in
the process.
Generally, this legislation comprehensively eliminates writing and
signature and evidentiary barriers to electronic records and signatures
where the state government is a party. As regards the private sector
only, the Act would eliminate barriers to enforceability of business to
business electronic contracts and licenses and requires, generally, the
judicial bodies give liberal construction to any writing or signature
requirement so as to allow electronic methods. We explicitly forbear
more comprehensive treatment of these issues (especially further action
relating to private sector consumer transactions) pending uniform state
treatment by NCCUSL (hopefully) or another responsible body.
Some basic philosophical principles underlying this draft:
* Target and Destroy Barriers to Electronic Commerce
* No new or larger regulations, requirements, or bureaucracy
* Respect for freedom of contract and open market solutions
* Technology and implementation neutrality (Based on previous two)
* Minimal, incremental legislative change - more to follow uniformly
* Explicit statement of emerging national base-line of legality
In keeping with these principles, we have elected not to treat public
key based systems in any way through legislation. It is felt that
market solutions must and should arise to meet the technical and
business practice issues. Removing legal barriers to use is sufficient
to handle legal issues at this time. Creation of special legislative
duties, liabilities and other hardships for private key holders or other
parties is felt to be WAY premature and not appropriate for statute. If
a system requires special legislative liability limits of an evidentiary
leg up in order to be profitable, then that system is not viable in the
market without a de jure governmental subsidy. We believe that markets
should arise as a result of supply and demand and not government
regulation (including legal treatments that attempt to define or
jump-start markets that do not yet exist). We believe the proper policy
position of law and policy makers at this time is to promote a
competitive marketplace and to allow innovators to perfect the most
efficient solutions. These technical, practical and legal solutions
(based on existing law - such as contract and insurance law) should be
looked to for any apportionment of liability and other requirements for
a workable business model. The law should support contracts, insurance
products and other reasonable methods employed by innovators with market
solutions that can succeed on their own merits. The law, as it stands
today, is more than capable of providing such a predictable legal
environment. As market solutions develop that may require additional
legal treatment, law and policy makers will always be capable of making
targeted reforms based on actual experience.
Similarly, we have elected not to treat the so-called "secure electronic
signature" because we feel that any statutory pronouncement that a given
implementation deserves special evidentiary benefits should follow
general business practices rather than preceding and defining them.
Especially in an area as dynamic and fast moving as this young market,
the best policy is to stay out of the details to the extent practicable
and to let law follow practices that demonstrate a need for additional
legislation or regulation. The desire to spark the market can best be
met by leaving it alone. The market risk (chilling innovation,
distorting the market and compelling compliance with guess-work
standards) of legislatively enshrining certain technologies or even
security criteria at this stage outweighs the speculative benefits of
legislative activism.
Again, a more comprehensive commentary and section by section analysis
will follow. Thank you.
Daniel Greenwood
Office: www.state.ma.us/itd/legal
Home: www.tiac.net/biz/danielg
Content-Type: text/html; name="mersa.htm"
Content-Disposition: inline; filename="mersa.htm"
Content-Base: "file:///C|/web/hot%20content/redo1/mer
sa.htm"
A
The authors of the following draft statute would welcome any questions,
comments, or criticisms. In particular, feedback would be appreciated on
the overall scope of the act. Specifically, should the act apply broadly
to all writing and signature requirements, excluding specified areas such
as wills and trusts, transactions in real property, and negotiable
instruments (which could be accommodated as it is now drafted)? Or, should
the act expressly define limited areas of application, such as transactions
with the Commonwealth and/or commercial transactions?
Commonwealth of Massachusetts
Information Technology Division
Office of the General Counsel
Massachusetts Electronic Records and Signatures Act
DRAFT - November 4, 1997
This draft is intended for discussion purposes only. It does not
necessarily represent the opinions of the Information Technology Division
or the Commonwealth of Massachusetts. For the most current public version
of this draft, and for additional information, please consult
<http://www.state.ma.us/itd/legal>http://www.state.ma.us/itd/legal.
Bracketed language indicates areas where alternative formulations are under
development. If you have any questions or comments regarding any aspect of
this document, please submit them to:
Ray A. Campbell III
General Counsel
Information Technology Division
One Ashburton Place, Room 801
Boston, MA 02108
617.973.0093
<mailto:ray.campbell@state.ma.us>ray.campbell@state.ma.us
Daniel J. Greenwood, Esq.
Deputy General Counsel
Information Technology Division
One Ashburton Place, Room 801
Boston, MA 02108
617.973.0071
<mailto:dan.greenwood@state.ma.us>dan.greenwood@state.ma.us
Section 1. Short Title. This act shall be known as the
"Massachusetts Electronic Records and Signatures Act".
Section 2. Purposes and Construction. The provisions of this act
shall be construed:
(a) to facilitate and promote electronic commerce and online government by
clarifying the legal status of electronic records and electronic signatures
in the context of writing and signing requirements imposed by law;
(b) to permit and encourage the continued expansion of electronic commerce
and online government through the operation of free market forces rather
than proscriptive legislation;
(c) to promote public confidence in the validity, integrity and reliability
of electronic commerce and online government; and
(d) to promote the development of the legal and business infrastructure
necessary to support and encourage electronic commerce and online
government.
Section 3. Electronic Records and Signatures. The General Laws are
hereby amended by inserting after section sixty four of chapter thirty the
following sections:-
Section 65. Definitions.
As used in sections sixty-five to seventy-two the following words
shall have the following meanings:
"Electronic" means electrical, digital, magnetic, optical,
electromagnetic, or any other technology that is similar to these
technologies.
"Electronic Record" means a record generated, communicated, received,
or stored by electronic means.
"Electronic signature" means any identifier or authentication
technique attached to or logically associated with an electronic record
that is intended by the person using it to have the same force and effect
as a manual signature.
"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.
"Rule of law" means a statute, regulation, ordinance, common-law rule,
court decision, or other law relating to a governmental transactions
enacted, established, or promulgated by the Commonwealth or any agency,
commission, department, court, other authority, or political subdivision of
the Commonwealth.
Section 66. Scope.
(a) Sections sixty-five to seventy-two shall apply to records generated,
stored, processed, communicated, or used for any purpose by or with a
public entity of the Commonwealth. The provisions of sections sixty-five to
seventy-two shall not apply:
(i) to the extent that their application would involve a construction of a
rule of law that is clearly inconsistent with the manifest intent of the
lawmaking body or repugnant to the context of the same rule of law,
provided that the mere requirement that information be "in writing,"
"written," "printed," or "signed", or any other word that purports to
specify or require a particular communications medium, shall not by itself
be sufficient to establish such intent; or
(ii) to any record that serves as a unique and transferable physical token
of rights and obligations including, without limitation, negotiable
instruments and other instruments of title wherein possession of the
instrument is deemed to confer title.
(b) Nothing in sections sixty-five to seventy-two shall be construed to
require any public entity of the Commonwealth to use or permit the use of
electronic records or electronic signatures.
Section 67. Electronic Records.
A record may not be denied legal effect, validity, or enforceability
solely because it is in the form of an electronic record. If a rule of law
requires a record to be in writing, or provides consequences if it is not,
an electronic record satisfies that rule of law.
Section 68. Electronic Signatures.
A signature may not be denied legal effect, validity or enforceability
solely because it is in the form of an electronic signature. If a rule of
law requires a signature, or provides consequences in the absence of a
signature, an electronic signature satisfies that rule of law.
Section 69. Admissibility into Evidence.
In any legal proceeding, nothing in the application of the rules of
evidence shall apply so as to deny the admissibility of an electronic
record or electronic signature into evidence on the sole ground that it is
an electronic record or electronic signature or on the grounds that it is
not in its original form or is not an original.
Section 70. Originals.
If a rule of law requires a record to be presented or retained in its
original form, or provides consequences for the record not being presented
or retained in its original form, that requirement is met by an electronic
record if it accurately reproduces the original record as it existed at the
time in question.
Section 71. Retention of Electronic Records.
If a rule of law requires that a record be retained, that requirement is
met by retaining an electronic record if it accurately reproduces the
original record as it existed at the time in question and for so long as
may be required by law. Nothing in this section shall preclude any federal
or state agency from specifying additional requirements for the retention
of records, either written or electronic, that are subject to the
jurisdiction of such agency.
Section 72. Role of the Chief Information Officer.
The Chief Information Officer designated in section four-A of chapter
seven shall have the authority to coordinate, oversee, operate, and approve
the use of information security and authentication technologies by any
public entity within the executive department.
Section 4. Use of Electronic Records and Electronic Signatures by
Business Entities. The General Laws are hereby amended by inserting after
section one hundred seven of chapter ninety-three the following section:-
Section 108. Use of Electronic Records and Electronic Signatures by
Business Entities.
(a) A contract between business entities shall not be unenforceable,
nor inadmissible in evidence, on the sole ground that the contract is
evidenced by an electronic record or that it has been signed with an
electronic signature. For purposes of this section, "contract" shall mean
a contract for the sale of goods or services, for the sale or license of
digital information, or for the lease of tangible personal property. The
provisions of this subsection shall not apply to the extent that their
application would involve a construction of a rule of law that is clearly
inconsistent with the manifest intent of the lawmaking body or repugnant to
the context of the same rule of law, provided that the mere requirement
that information be "in writing," "written," "printed," or "signed", or any
other word that purports to specify or require a particular communications
medium, shall not by itself be sufficient to establish such intent.
(b) Nothing in this section shall be construed to prevent a party
>from establishing reasonable requirements with respect to the method
executed or adopted by a party to sign a contract, absent agreement to the
contrary.
(c) Nothing in this section shall be construed to mean that electronic
records and electronic signatures do not satisfy legal requirements for a
writing or a signed writing in transactions not covered by this section.
Section 5. Writings and Signatures Generally. Section seven of chapter
four of the General Laws is hereby amended by striking out the
thirty-eighth clause and inserting in place thereof the following:-
"written" and "in writing" shall include any method, including electronic
and digital methods, for inscribing information on a tangible medium or for
storing information in an electronic or other medium from which it can be
retrieved in perceivable form. In general, where any rule of law purports
to specify a particular medium for the creation, storage, communication, or
authentication of any records or information, that requirement shall be
liberally construed to allow the broadest possible use of electronic or
digital methods unless there is clear public interest to the contrary.
Section 6. Severability. If any provisions of this act, or the
applications of such provisions to any person or circumstance are held
invalid or unconstitutional, the other provisions of this act or the
application of such provisions to any person or circumstance other than
that as to which it is held invalid or unconstitutional shall not be
affected thereby.
Section 7. Effective Date. This act shall take effect upon passage.
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Copyright 1997, Commonwealth of Massachusetts. All rights reserved.
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Robert Hettinga (rah@shipwright.com), Philodox
e$, 44 Farquhar Street, Boston, MA 02131 USA
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