July 14, 2010 |
2010-R-0273 | |
ELECTRONIC TRANSMISSION OF NOTICES UNDER THE CONNECTICUT UNIFORM ELECTRONIC TRANSACTIONS ACT | ||
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By: Terrance Adams, Legislative Analyst II James Orlando, Legislative Analyst Kristin Sullivan, Principal Analyst | ||
You asked several questions about the use of electronic mail (e-mail) with receipt verification as an alternative to certified mail, return receipt requested, for notices required by law. Your specific questions and answers appear below.
1. Does the law authorize public agencies to use e-mail with receipt verification as an alternative to certified mail, return receipt requested, for notices required by law?
No, current law does not authorize public agencies to use e-mail with receipt verification as an alternative to certified mail, return receipt requested, for notices required by law. However, the legislature could amend the statutes to allow for documents, with certain exceptions (such as wills, see BACKGROUND), to be sent electronically instead of by certified or registered mail.
The Connecticut Uniform Electronic Transactions Act (CUETA) establishes a legal foundation for the use of electronic communications in transactions where the parties, including state and local government agencies, have agreed to conduct business electronically (CGS §§ 1-266 to 1-286). It validates the use of electronic records and signatures and places electronic commerce and paper-based commerce on the same legal footing (see BACKGROUND). It does not specifically authorize agencies to send notices, or any type of certified or registered mail, by e-mail. Instead, it sets requirements with which electronic transmissions must comply.
Under CUETA, if a law specifies the manner in which a record must be posted, displayed, sent, communicated, transmitted, or formatted, that law governs and the information cannot be presented electronically unless the law permits a waiver (CGS §§ 1-273). Thus, where the law requires a notice to be sent by certified mail, return receipt requested, e-mail could not be substituted without a change in the law. Further, in order to use e-mail, (1) the parties to the transaction must have agreed to do so, and (2) the documents must be covered by CUETA.
2. Does any Connecticut state agency or municipality currently allow notices to be sent by e-mail as an alternative to certified mail?
We searched the Connecticut General Statutes as well as most municipal charters and codes available online and found no examples where Connecticut or a municipality allows required notices or documents to be sent by e-mail with receipt verification as an alternative to certified mail, return receipt requested.
However, a 2010 act, which was effective from passage, allows return receipts to be sent by e-mail. PA 10-179 (§ 40) provides that numerous statutory references to “certified mail, return receipt requested” cover all methods of receiving the return receipt, including mail, electronic, digital, and those methods identified by the U. S. Postal Service's Mailing Standards found in Chapter 500 of the Domestic Mail Manual or its successor.
3. Do any other states use e-mail as an alternative to certified mail to send notices?
We were able to find only a small number of statutory provisions from other states allowing required notices or documents to be sent by e-mail as an alternative to certified mail, return receipt requested. While some of these statutes specify that e-mail receipt must be verified, they do not provide detail on how to do so. Table 1 provides examples of such provisions.
Table 1: Examples of Provisions Allowing E-Mail As an Alternative To Certified Mail, Return Receipt Requested
State |
Provision and Applicable Language (citation) |
Illinois |
Provides that any notifications required by state's Uniform Real Property Electronic Recording Act “must be made in writing and may be communicated by certified mail, return receipt requested or electronic mail so long as receipt is verified” (§ 765 Ill. Comp. Stat. 33/2) |
Kentucky |
Provides that a notice of noncompliance of surface coal mining laws, or order for compliance and cessation of mining activities, must be handed to the person in charge or engaged in coal exploration operations “or sent by certified mail, return receipt requested, addressed to the permanent address shown on the application for a permit or by electronic mail to the address shown on the permit application or otherwise voluntarily provided . . . or if no address is shown on the application, then by certified or electronic mail” (2010 Ky. Acts 114 § 2) |
Tennessee |
Provides that required notices and orders for income withholding concerning alimony and child support must be sent “by any method chosen by the court or the department [of children's services], including, but not limited to: certified mail, return receipt requested, regular mail, electronic mail, facsimile transmission, or by personal service, and may be generated by computer or on paper” (Tenn. Code Ann. § 36-5-501(m)) Allows same methods of delivery as chosen by the Department of Children's Services regarding requests, administrative orders, or administrative subpoenas for child support enforcement matters (Tenn. Code Ann. § 36-5-807(b)) |
Texas |
For a hearing regarding a defendant's request to expunge criminal records, provides that government agencies or officials named in the petition must be notified by “(1) certified mail, return receipt requested; or (2) secure electronic mail, electronic transmission, or facsimile transmission” (Tex. Code Crim. Proc. art. 55.02(2)(c)) Provides that certified copies of the final order of expunction must be sent to government agencies or officials by similar means or by hand delivery with receipt (Tex. Code Crim. Proc. art. 55.02(3)(c)) |
Utah |
For purposes of statutory provision on the reconveyance of trust deed or release of mortgages, defines "deliver" or "delivered" to mean by: “(a) overnight delivery by a reputable carrier; (b) United States certified mail or express mail; (c) hand delivery with receipt acknowledged in writing; or (d) facsimile or electronic mail belonging to the beneficiary, mortgagee, or servicer” (Utah Code Ann. § 57-1-39(2)) |
Virginia |
Provides that a commercial vessel's Ballast Water Control Report form is “deemed to have been filed when it is hand delivered to the [designated] Maritime Association, sent by electronic mail or facsimile transmission and received by [the association], or sent to [the association] by registered or certified mail, return receipt requested” (Va. Code Ann. § 28.2-110; 2010 Va. ALS 815 ) |
Washington |
Requires the attorney general to deliver to the manufacturer a copy of a consumer's acceptance of a motor vehicle warranty arbitration decision “by certified mail, return receipt requested, electronic mail confirmed by an electronic notice of delivery status or similar confirmation, or by personal service” (Rev. Code Wash. (ARCW) § 19.118.090(7)) |
Wisconsin |
Provides that licensees and others operating care and service residential facilities must provide the Department of Health Services, “by registered or certified mail, with a return receipt requested, or by mail or electronic mail, with a return acknowledgement requested,” with the contact information for a person authorized to accept service of any notices sent by the department (Wis. Stat. § 50.03(2m)) Also provides that the department must send any required notices to a licensee or applicant by “personal service or, if made to the most recent address on file with the department . . . 1. By registered or certified mail, with a return receipt requested [or] 2. By mail or electronic mail, with a return acknowledgement requested” (id.) |
4. If states allow e-mail as an alternative to certified mail, how do they verify receipt?
Despite the fact that some states have provisions authorizing certain notices to be sent by e-mail, we were unable to locate any authoritative standards concerning receipt verification for documents sent electronically.
5. Which Connecticut statutes require a document to be sent by certified or registered mail?
Nearly 500 Connecticut statutes require particular documents to be sent by certified or registered mail (see Attachment 1). They include (1) service of process; (2) mortgage-related documents; and (3) notices for hearings, meetings, agency or court decisions or orders, license suspensions or revocations, alleged violations, contract cancellations, and others.
Many of the statutes use certified and registered mail interchangeably, although the two forms of mail are different. Similarly, a number of statutes specify that a return receipt must be requested, while others omit this requirement. In several cases, a notice may be hand-delivered instead of being sent by certified mail.
BACKGROUND
Connecticut Uniform Electronic Transaction Act
CUETA is modeled after the Uniform Electronic Transaction Act (UETA), which the National Conference of Commissioners on Uniform State Laws adopted on July 29, 1999. CUETA provides uniform rules governing electronic commerce transactions. Under CUETA, a law requiring information to be provided, sent, or delivered in writing to another person is satisfied if (1) it is provided, sent, or delivered in an electronic record that the recipient can retain upon receipt and (2) the parties, including state and local government agencies, have agreed to conduct business electronically. If the sender or the electronic system he or she uses to send the information inhibits the recipient's ability to print or store an electronic record, it is not considered retained.
An “electronic record” is one created, generated, sent, communicated, received, or stored by electronic means. E-mails, faxes, and Internet messaging are examples of electronic records. “Electronic signatures” are electronic sounds, symbols, or processes that people attach to or logically associate with a record to indicate their signature (CGS §§ 1-282, 283).
If a law requires a record to be retained, the requirement is satisfied by retaining an electronic record of the information in the record provided it (1) 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 (2) remains accessible for later reference (CGS § 1-277).
Sending and Receiving Electronic Records. Under CUETA, unless otherwise agreed, an electronic record is sent when it:
1. is properly addressed or otherwise properly directed to an information processing system (a) that the recipient has designated or uses to receive electronic records of the type sent and (b) where the recipient can retrieve the electronic record,
2. is in a form that the system can process, and
3. enters a system outside of the sender's control or enters a region of the system the recipient controls and designates or uses (CGS § 1-280(a)).
Unless otherwise agreed, an electronic record is received when it (1) enters a system the recipient has designated or uses to receive electronic records of the type sent, and from which he can retrieve the record, and (2) is in a form capable of being processed by that system. The record is received even if no one is aware of its arrival. An acknowledgement of receipt sent by an information processing system establishes that a record was received but, by itself, does not establish that the contents sent correspond to those received. Unless otherwise expressly provided, an electronic record is deemed sent from and received at a party's place of business, or if none, at his or her residence (CGS § 1-280).
CUETA creates a presumption that an electronic record is not sent to or received by a consumer if the sender knows that the consumer did not receive it, or having received it could not open or read it. This presumption may not be varied by agreement. “Consumer” means a person who transacts to receive personal, family, or household products or services, or his or her legal representative (CGS § 1-284).
CUETA and Government Agencies. CUETA does not require a state or local government agency or entity to use or permit the use of electronic records or signatures. But if an agency decides to use or allow them, it must determine whether, and to what extent, it will (1) create and retain electronic records, (2) convert written records to electronic records, (3) send and accept electronic records and signatures, and (4) communicate and use and rely upon electronic records and signatures (CGS §§ 1-282 and 283).
Any law passed after October 1, 2002 that prohibits the use of electronic records for evidentiary, audit, or like purposes will prevent a government agency from retaining them in electronic form (CGS § 1-277(f)). Government agency decisions regarding the retention and destruction of public records are subject to the laws giving the state librarian and the public records administrator retention authority over all public records (CGS §§ 1-282). Government agencies may specify requirements for the retention of records subject to their jurisdiction, except as otherwise required by the state librarian or the public records administrator by law (CGS § 1-277(g)).
CUETA also authorizes the Department of Information Technology and certain state constitutional offices to adopt regulations regarding the use of electronic records (CGS § 1-283).
Exceptions from CUETA. CUETA does not apply to:
1. wills, codicils, or testamentary trusts if other laws apply;
2. certain transactions covered by the state's Uniform Commercial Code; and
3. court practices and procedures in the Connecticut Practice Book;
CUETA applies to the following only if they are subject to E-SIGN, described below (all of the following are currently not subject to E-SIGN):
1. utility termination notices, including water, gas, cable television or other services, electric, heat, oil, and telephone services;
2. notice of eviction, foreclosure, repossession, acceleration, default, or the right to cure, under a rental or credit agreement secured by someone's primary residence;
3. notice that life insurance or health or health insurance benefits are being cancelled or terminated, other than with respect to annuities;
4. notice of the recall or material failure of products that could endanger health or safety; and
5. documents required in transporting or handling hazardous material, pesticides, or other toxic or dangerous material (CGS §§ 1-268).
CUETA as it Relates to Federal E-SIGN. Like CUETA, the federal Electronic Signatures in Global and National Commerce Act (E-SIGN) (15 U.S.C. § 7001 et seq.) validates the use of electronic records and signatures. While the two overlap significantly, they are not identical. For example, E-SIGN applies only to interstate transactions, not intrastate transactions.
Where E-SIGN and any state law address the same aspects of interstate and foreign commerce, Section 102 of E-SIGN states that federal law preempts state law. However, E-SIGN has a reverse preemption provision that allows states to modify, limit, or supersede its electronic contracting provisions in certain circumstances, including when a state adopts UETA (15 U.S.C. § 7002).
CUETA states that its provisions on the effectiveness, validity, and enforceability of electronic records and signatures and related contracts conform to the requirements of E-SIGN. CUETA further provides that it supersedes, modifies, and limits the federal law except for E-SIGN's consumer disclosure provisions (CGS §§ 1-286).
Other States
Forty-seven states have adopted state versions of UETA. Illinois, New York, and Washington have not done so, but have statutes regarding electronic transactions. The following link from the National Conference of State Legislatures provides citations to all state statutes adopting UETA and the related statutes for the three states that have not adopted UETA: http://www.ncsl.org/IssuesResearch/TelecommunicationsInformationTechnology/UniformElectronicTransactionsActs/tabid/13484/Default.aspx?tabid=13484.
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