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Cheese has company
I write regarding “The Cheese Stands
Alone” in the JUL/AUG 2014 NWLawyer
Tech Issue. It made me wonder how it can
be that Washington is currently a center
and leader of tech and e-commerce, when
the article’s premise is that WA cannot
succeed absent adoption of the Uniform
Electronic Transactions Act (UETA).
Being the co-author of a treatise that
focuses on e-commerce, including the
federal Electronic Signatures in Global
and National Commerce Act (ESIGN) and
UETA, and having helped clients wrestle
with both, my personal view is that WA is
lucky not to have adopted UETA. UETA is
a siren’s song, i.e., its alluring promise of
“uniformity” is not reality (check out CA’s
myriad exceptions from scope and CA’s
substantive amendments) and it is perpetually frozen in time to 1999 (ESIGN
preempts any other version). Some courts
in states with UETA do not even base
their decisions on it (e.g., recently, a Florida court inexplicably used a non-UETA
rule in Title 1 of a statute that, in Title II,
Even if “standing alone” were a reason to adopt UETA, Washington actually does not stand alone. It at least stands
with N Y and that is pretty good company.
N Y rejected UETA, adopting a minimalist
statute to allow the remainder of NY law
to parallel ESIGN (see Naldi v. Grunberg,
2010 N.Y. App. Div. LEXIS 7173 (2010)).
The status in WA is essentially the same,
i.e., ESIGN largely controls (subject to
significant exceptions that also exist in
UETA) because WA did not adopt UETA.
There is a debate that ESIGN doesn’t cover “governmental affairs” and it clearly
does not cover “intrastate” transactions,
but the latter are almost ephemeral in the
computer age, and the “governmental affairs” debate is based on flawed logic (the
logic for viewing governmental affairs as
excluded from ESIGN would mean that
consumers transactions are excluded
from UETA). Neither argument is persuasive and any gaps can be solved without
adoption of UETA (language to that effect
was discussed at a legislative work session a year or so ago).
None of this is to say there are no
problems in e-commerce. There are. But
they are not created by WA’s failure to
adopt UETA and will not be uniformly
solved by adopting it. And the Washington Electronic Authentication Act
(WEAA)? The article is correct that it is