Summary

The Electronic Signatures in Global and National Commerce Act (ESIGN) was enacted in June 2000 and is intended to "facilitate the use of electronic records and signatures in interstate and foreign commerce and to remove uncertainty about the validity of contracts entered into electronically."⁽¹⁾ The legislation contains several exceptions, including an exception for documents signed in connection with court proceedings. The Act requires the Department of Commerce to report to Congress within three years its recommendations on whether the exceptions should continue. The exception regarding materials submitted to courts should be retained, since it is consistent both with the purposes of the statute - which regulates transactions relating to the conduct of business, consumer and commercial affairs - and the federal judiciary's established role in regulating its own proceedings.

Introduction

We are in an era of transition. Many if not all parts of society are in the process of increasing the use of computerized technology and grappling with the questions and issues that arise as a result. Solutions and strategies put into place at this time may need to be adjusted over time to reflect the changing landscape. Legislation such as ESIGN is part of that transition. ESIGN sets forth a general broad rule about the legal effects of electronic signatures in commercial transactions, but at the same time recognizes that considerable flexibility is necessary and that a "one-size-fits-all" solution is inappropriate. ESIGN's exceptions (including the one for court documents) recognize that the use and impact of technology must be calibrated to address some particular contexts.

ESIGN clearly is directed at the use of electronic signatures and documents in the commercial realm. The transactions it covers are those "relating to the conduct of business, consumer or commercial affairs between two or more persons . . . ." ⁽²⁾ It is neither intended nor specifically designed to address governmental transactions, except where the government is either involved as a party to a commercial transaction or is regulating such transactions. The provisions of Section 103(b)(1),⁽³⁾ which except "court orders or notices, or official court documents (including briefs, pleadings, and other writings) required to be executed in connection with court proceedings," are completely consistent with the thrust and framework of the statute, since court proceedings are not business, consumer or commercial transactions.⁽⁴⁾

The exception in Section 103(b)(1) is also completely consistent with the recognition that the federal judiciary is an independent branch of government, with responsibility for its own procedures and rules, and for ensuring that those procedures and rules protect justice and fairness in the specific context of court proceedings.

Federal judicial branch activity in this area

Although the federal judiciary is excepted from the specific provisions of ESIGN, it has been a leader in the use of electronic technology to increase public access to the courts. As far back as the mid-1990s, the Federal Rules of Practice and Procedure were amended to authorize courts to accept documents filed, signed or verified by electronic means. Shortly thereafter, several federal district and bankruptcy courts began to experiment with electronic case filing systems. Although electronic filing is not presently universal in the federal court system, there are now approximately 30 bankruptcy courts and 10 district courts that accept electronic filing. More than 18,000 attorneys and others have filed federal court documents over the Internet, and more than 4 million cases containing many millions of documents are available to the public over the Internet. Even larger numbers of courts (approximately 65 bankruptcy courts and 35 district courts) have at least some court documents available to the public online. These numbers will increase continuously over the next few years.

Legal framework

As an independent branch of government, the federal judiciary has traditionally had responsibility for regulating its own procedures. Congress' recognition of this has been articulated in, among other legislation, the Rules Enabling Act.⁽⁵⁾

The federal judiciary uses the Rules Enabling Act process to develop the rules and processes governing proceedings in the federal courts. This process provides the chance for thoughtful analysis and consideration of the particular issues that arise in the context of federal court practice. It also provides extensive opportunity for public input and comment on proposed amendments to the Federal Rules of Practice and Procedure. In the course of the federal rules amendment process, the impacts of the rules on the courts, the bar, and the public (including consumers) can be weighed.⁽⁶⁾

Exercising this responsibility, the federal judiciary has over the last decade promulgated several rules relating to electronic filing. In 1996, the Federal Rules of Practice and Procedure were amended to authorize local courts to accept documents filed, signed or verified electronically.⁽⁷⁾ Based on these provisions, courts that are opting to permit electronic filing have adopted local rules and procedures governing the creation and use of electronic case files in their courts.

The judiciary is also close to completing its effort to authorize service of federal court documents by electronic means upon written consent of the party to be served.⁽⁸⁾

In addition, recognizing the potential implications for personal privacy that increased electronic access to court documents might have, the Judicial Conference of the United States, the federal judiciary's highest policymaking body, has after extensive consideration and public input approved a policy on privacy and public access to electronic documents. That policy provides that documents in civil and bankruptcy cases generally should be equally accessible at the courthouse and remotely over the Internet, but that filed documents should not contain certain personal identifying information. Documents in criminal and social security cases are generally not to be available remotely to the public over the Internet, although they would remain available at the courthouse.⁽⁹⁾ Electronic access to docket sheets and court opinions in all types of cases are not affected by this policy.

The Case Management/Electronic Case Files System

Over the last several years, the federal judiciary has been a leader in the development of electronic case management and filing systems. The Case Management/Electronic Case Files (CM/ECF) system, developed in-house by the federal judiciary, provides an updated electronic case management system, and also offers courts the ability to maintain court records electronically and accept court filings over the Internet. CM/ECF systems have been developed for both district and bankruptcy courts, and a system for appellate courts is in the process of being developed.

CM/ECF is being implemented in federal courts on a rolling basis. Groups of about nine courts at a time begin the implementation process, which takes approximately ten months. Formal implementation of the bankruptcy system began in early 2001, and implementation of the district court system began earlier this year.⁽¹⁰⁾ As of the fall of 2002, about 40 bankruptcy courts have implemented CM/ECF, and close to three-quarters of those are using the electronic filing capabilities. About 10 district courts have implemented CM/ECF, and most of those are using the electronic filing capabilities. These numbers will continue to increase over the next few years, with CM/ECF expected to be implemented in almost all courts by mid-2005.⁽¹¹⁾

The CM/ECF system is designed to give courts flexibility in how they implement it. Consistent with the federal rules, individual federal courts have the option to decide how to make use of the electronic filing capabilities. While the CM/ECF system is designed to permit filing of virtually any type of court pleading, in any type of case, courts can make choices about what to accept. Thus, some courts are choosing to start all at once with electronic filing, while others are choosing to start slowly, permitting it initially for certain types of cases or certain types of documents. Electronic filing is a new and different way of doing business, and courts are quite properly seeking to manage the transition carefully. A wide variety of individuals and entities use the federal courts, and they must all be accommodated and their interests protected. The flexibility inherent in the CM/ECF system allows courts to experiment with different ways of addressing electronic filing issues, thereby providing the federal judiciary with experience that will be used over the long run to make decisions about optimal procedures and processes.

The CM/ECF system is web-based, and electronic filing is accomplished over the Internet using commonly available hardware and software.⁽¹²⁾ Documents must be filed in portable document format (PDF), so that they will retain their appearance and formatting regardless of where they are viewed or printed. In order to file a document, the filer must have a court-issued login and password. Courts are generally issuing logins and passwords to members of their bar, and to others as appropriate.

Documents filed with the court through CM/ECF are generally accessible to the public (as well as to the court and the bar) immediately through the federal judiciary's electronic public access system - PACER.

The Federal Judiciary's Electronic Public Access System - PACER

The federal judiciary has also been a leader in making court records available to the public electronically. Its public access system, Public Access to Court Electronic Records (PACER), was initiated more than a decade ago. Initially a dial-in system providing access to court dockets, it is now a web-based system that offers not only docket information, but also case documents in those courts that use CM/ECF or otherwise convert documents into electronic form. In addition, some courts post additional documents, such as local rules, on their individual court websites. Many courts that are not yet using electronic filing post court decisions on their websites for public view.

Following Congress's mandate, access to court dockets and documents through PACER is funded through user fees. These fees are set at the minimum possible to fund program costs, and have been reduced several times over the program's history. Litigants and their attorneys receive one free copy of documents filed electronically in their cases, which they can save or print for their files. Additional copies are available to attorneys and the general public for viewing at a current rate of $.07/page, with a maximum cost per document of $2.10. In addition, charges per user of less than $10.00/year are waived. Anyone may receive a login to the PACER system, by requesting one through the judiciary's PACER Service Center. For more information, see www.pacer.psc.uscourts.gov.

Most documents that are available to the public at federal courthouses are also available electronically through PACER if courts keep them in electronic form. However, the judiciary's policy on privacy and public access described above does impose some limits on "remote" or Internet-based access. Thus, documents in social security cases and most criminal cases are presently not available through PACER.

Handling of electronic signatures

There is a wide range of documents signed in connection with court proceedings. Many are signed by the attorneys who file them on behalf of parties. Others are signed by non-filers - the parties themselves, affiants, law enforcement personnel, and others. The federal courts are beginning to address the multitude of issues that arise in various contexts, including signature requirements for pleadings and documents that might be the basis for civil or criminal liability or attorney sanctions under Federal Rule of Civil Procedure 11.

As noted above, the Federal Rules of Practice and Procedure authorize federal courts of all types to permit court papers to be signed by electronic means. Filing a document with a court through CM/ECF requires a login and password issued by the court. All the courts accepting electronic filing have stated that a document filed with a particular login and password is deemed to have been signed by the person to whom they were issued. In most courts, a visible sign that the document was signed, e.g., a typed /name of signer/, must appear on the document. No specific propriety signing software is required.

In civil cases in district court and in bankruptcy courts accepting electronic filing, most courts presently require that documents signed by non-filers (e.g., parties, affiants, etc.) contain either a scanned copy of the non-filer's signature or a typed name, and that a signed original be retained by the person filing the document. Electronic filing in criminal cases is just beginning to occur. Consideration of how best to handle signatures of non-filers in a way that protects the rights and interests of all concerned is a process that will be ongoing as experience develops.

Many of the issues relating to signatures on electronic court documents, and the resolution of those issues, may be peculiar to court contexts, e.g., protection of the due process rights of criminal defendants and other litigants. The federal judiciary will continue to sort out its experience as it proceeds. The wide range of interests that need to be protected in connection with court proceedings underscores the importance of moving carefully, and with maximum flexibility to consider options.

Conclusion

The exception in Section 103(b)(1) of ESIGN for court documents should be retained. It is consistent with the statute's purpose to reduce impediments to electronic commerce between and among businesses and consumers, and it underscores that the judicial branch has the responsibility to determine the procedures and practices that govern in the courts.⁽¹³⁾

As part of its ongoing program to permit electronic filing and signing of court documents, the federal judiciary continues its efforts to consider how best to balance the needs of the courts, litigants (including consumers) and the public in the specific context of judicial processes. Removing the ESIGN exception would not further those efforts, but instead might create uncertainties that could frustrate their beneficial purpose.

2. 15 U.S.C. § 7006(13) (Pub. L. No. 106-229, § 106(13)).

3. 15 U.S.C. § 7003(b)(1).

4. In light of ESIGN's focus on business, commercial and consumer transactions, it might be suggested that the exception for court documents is unnecessary in a statute that does not appear to apply to them. However, given that the exception currently exists, and was likely included to prevent any ambiguity or confusion, its removal could create just that ambiguity, confusion and potential litigation.

5. 28 U.S.C. §§ 2071-2077.

6. The Rules Enabling Act process is a considered one. Suggestions for amendments are initially considered by the appropriate advisory committee to the Committee on Rules of Practice and Procedure (Standing Committee) of the Judicial Conference of the United States, the federal judiciary's highest policymaking body. Advisory committee recommendations are considered by the Standing Committee, which authorizes publication of proposed amendments for public comment. A six-month public comment period is generally provided. Public comments are considered by the advisory committee; the language of the amendment with any modifications made in light of the public comments is sent to the Standing Committee for approval. All meetings of the advisory committees and the Standing Committee are open to the public. Approved amendments are presented to the Judicial Conference; if it approves, the proposed amendment is sent to the Supreme Court. If the amendment meets with Supreme Court approval, it is sent to Congress, which has seven months to modify, reject or defer it. If Congress does not act, the new or revised rule goes into effect. This process generally takes about three years; in exceptional circumstances, it can be expedited.

7. In parallel provisions included in each of the four sets of rules (the Federal Rules of Civil Procedure, Federal Rules of Criminal Procedure, Federal Rules of Appellate Procedure and Federal Rules of Bankruptcy Procedure), courts were given the authority to permit electronic filing, signing and verification:
 

A court may by local rule permit papers to filed, signed or verified by electronic means that are consistent with technical standards, if any, that the Judicial Conference of the United States establishes.
 

Fed. R. Civ. P. 5(e). See also Fed. R. Crim. P. 49(d); Fed. R. App. P. 25(a)(2)(D); Fed. R. Bank. P. 5005, 7005, 8008.

8. Provisions authorizing parties to serve each other by electronic means consented to in writing (including in electronic form) are in effect in civil, criminal and certain bankruptcy cases. See Fed. R. Civ. P. 5(b)(2); Fed. R. Crim. P. 49(b); Fed. R. Bankr. P. 7005. Similar provisions are expected to become effective in appellate cases in December 2002. See Proposed Fed. R. App. P. 25.
 

Provisions authorizing the court to provide notice of orders and judgments to parties by electronic means upon written consent (including in electronic form) are in effect in civil and bankruptcy cases. See Fed. R. Civ. P. 77; Fed. R. Bankr. P. 9022. Similar provisions are expected to become effective in appellate and criminal cases in December 2002. See Proposed Fed. R. App. P. 45; Fed. R. Crim. P. 49(c).
 

These rules are not applicable to service of process or certain other types of documents used to establish personal jurisdiction or to initiate certain types of cases.

9. The Judicial Conference sought to balance the historical openness of public records with concerns about personal safety and security that arise from broader access to those records. Thus, although the policy endorses similar access to court records at the courthouse and over the Internet, the Judicial Conference recognized that security and privacy concerns are particularly compelling in criminal cases, where security of witnesses and others might be at stake, and in social security cases, where personal medical records should be protected. While these documents would still be available at the courthouse, they would not be accessible by the public over the Internet. In addition, documents sealed by the court are not available either at the courthouse or over the Internet.
 

Documents in certain "high-profile" criminal cases may be made available over the Internet if the parties consent and the court makes certain findings. Furthermore, the Judicial Conference will be re-evaluating the policy on access to documents in criminal cases within the next year, following a study of its impacts. For more information about the policy, see www.privacy.uscourts.gov .

10. A number of courts began using earlier versions of CM/ECF software as part of the prototyping and testing process starting in 1996.

11. For more up-to-date information about CM/ECF implementation, see www.uscourts.gov/cmecf/cmecf.html.

12. Hardware and software requirements for using CM/ECF are minimal, and largely track those used by most businesses and law firms: personal computers with Windows or Macintosh operating systems, an Internet connection and browser (Netscape or Internet Explorer), standard word processing software, and software permitting conversion of documents to PDF. For certain types of filers, a scanner may be necessary, if documents to be filed do not exist or are not available in electronic form.

13. ESIGN does apply in the federal courts to the extent that it provides the rules of decision for disputes that involve the legal effect, validity or enforceability of electronic signatures in documents in commercial transactions.