S.B. 55 is “circled” and state Democratic spokesperson calls it “bad law”

Democrats are a beleaguered minority in Utah. They hold seven out of twenty-nine seats in the State Senate and seventeen out of seventy-five in the State House. But they can still make their voice heard on important issues such as S.B. 55, a bill supporters claim will rationalize the state’s electronic signature law and which opponents say will stifle the free exercise of democratic rights in the signing of official state documents electronically.

Todd Taylor, Executive Director of the Utah State Democratic Committee today responded to an inquiry about S.B. 55 from Etopia News with a detailed statement expressing the Democratic Party’s views on this proposed legislation, which was, as this article was being composed, a “circled” bill, meaning that it was on hold for a "second reading" in the Utah State Senate.

According to Leslie McKean, Manager of Senate Services, its sponsor, State Senator Stephen Urquhart, told her that he had had it circled because he “was still working some things out, still working out some bugs.” “At this time,” she said, “he doesn’t know when he’ll uncircle it.” This was at 5:30 pm, Mountain Standard Time, on February 22nd.

Here’s what Mr. Taylor had to say about S.B. 55, on behalf of the Democratic Party of Utah:

“The Utah Legislature is entertaining a provision SB055 Electronic Signatures that could severely limit electronic transactions with the State of Utah. Under the provision, the State of Utah will no longer consider electronic signatures valid unless there has been an agency rule making procedure to allow them.

“As with many things, this issue stems from an election controversy. But it could have unintended consequences for commerce and legal situations far beyond the intended issue by the State Elections Department.

“A little history: In early November 2009, the Utah Democratic Party was approached by the sponsors of more than one citizens’ initiative about the prospect of devising an on-line system to collect petition signatures for these initiatives. Our initial reaction was one of resistance and skepticism. It was quickly overcome.

“It became apparent that there was no impediment in law. It was simply a matter of getting the state election department to acknowledge that the Uniform Electronic Transaction Act was applicable to the election law dealing with initiatives and referenda. It also became apparent that there was no ethical impediment in that we could ensure the validity of the transaction at the same level or better with protection against fraudulent signers as would be the case with the current “in person” process.

“The circulation and collection of petition signatures is not the function of government, but a private function given to the sponsors of the measure. The government’s function is limited to verification and counting to determine if the number collected is sufficient. Electronic signatures make both of these government functions easier and more accurate. The current verification process does not require a comparison of holographic signatures between the petition and the voter registration. It only looks at the name, address and optional date of birth for a match. Common law has long recognized that signatures could be holographic, a mark, or fingerprint, and under Utah law an electronic indication of assent (or electronic signature).

“There has been case law established that contracts are valid where the actor simply checks the “I agree” button on a contract thereby providing their electronic signature. An example is that Microsoft licensing agreements are done in this manner. The State of Utah already uses electronic signatures for renewal of professional and driver’s licenses; application for hunting and fishing licenses; filing tax returns for individual income taxes, sales and use taxes, unemployment insurance; many court documents; registration of products, brands, corporation names, motor vehicles; applications for unemployment, health and insurance benefits, and many, many more services and transactions amounting to millions of dollars. The State of Utah has also already passed a law to allow for electronic voter registration where holographic signatures are required by using links to the driver’s license database.

“In addition to the new voter registration law allowing voter registration with an electronic signature, they have long been in use for filing lobbyist finance disclosure reports, signing the polling books, and campaign finance reports.

“So we were somewhat surprised when we were met with uncompromising resistance from the State Election Department. They tried every method possible to shut down the process. Eventually, the Utah Supreme Court, in a case about signatures allowing candidate access to the ballot, required the State Election Department to accept electronic signatures.

“Utah’s State Election Department is still opposed to setting up a process to accept such signatures and therefore is supporting SB055 to allow them to prevent future acceptance. They claim that their support is to provide for thoughtful rule making but instead it provides a prohibition unless they affirmatively set a rule.

“Commercial entities need to be very careful about doing business with the State of Utah if this measure passes. Unless a state agency has adopted a rule on electronic signatures, they would not be valid. Software licenses, products order online by employees of the agencies, requests for proposals, purchase orders delivered via facsimile or e-mail may all be invalid unless the agency has promulgated a rule.

The Utah Democratic Party understands the need for an orderly process for things like petition signatures and encourages the State Election Department to adopt a workable rule. SB055 is bad law. State agencies will have no impetus to accept electronic submissions if they can “Just say No!” Rule making should not be a matter of whether electronic signatures are acceptable, but rather the appropriate manner. All electronic signatures should be valid unless rule making has provided a more specific manner of submission.”