Senate Bill 2416c1
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Florida Senate - 2000 CS for SB 2416
By the Committee on Judiciary and Senator Brown-Waite
308-1973-00
1 A bill to be entitled
2 An act relating to electronic commerce;
3 providing definitions; providing scope;
4 providing for prospective application;
5 providing for use of electronic records and
6 signatures; providing for variation by
7 agreement among parties using electronic
8 records and electronic signatures; providing
9 construction and application; providing for
10 uniformity; providing for legal recognition of
11 electronic records, signatures, and contracts;
12 providing for provision of information in
13 writing; providing for presentation of records;
14 providing for attribution and effect of
15 electronic records and electronic signatures;
16 providing for the effect of changes or errors
17 in electronic records; providing for
18 notarization and acknowledgment; providing for
19 retention of electronic records and originals;
20 providing for admissibility of electronic
21 records as evidence; providing for rules
22 applying to automated transactions; providing
23 for time and place of sending and receiving
24 electronic records and signatures; providing
25 for transferable records; providing for
26 creation and retention of electronic records by
27 governmental agencies; providing for conversion
28 of written records by governmental agencies;
29 providing for acceptance and distribution of
30 electronic records by governmental agencies;
31 providing for interoperability; providing
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1 severability; requiring the clerks of court to
2 provide a statewide index of official records
3 available on the Internet by a time certain;
4 providing for security; requiring that the
5 Internet information shall not be admissible in
6 court; providing that the official records must
7 be made available for electronic retrieval on
8 the statewide site by a time certain; providing
9 an effective date.
10
11 Be It Enacted by the Legislature of the State of Florida:
12
13 Section 1. Electronic Commerce.--
14 (1) SHORT TITLE.--This section may be cited as the
15 "Uniform Electronic Transaction Act."
16 (2) DEFINITIONS.--As used in this section, the term:
17 (a) "Agreement" means the bargain of the parties in
18 fact, as found in their language or inferred from other
19 circumstances and from rules, regulations, and procedures
20 given the effect of agreements under provisions of law
21 otherwise applicable to a particular transaction.
22 (b) "Automated transaction" means a transaction
23 conducted or performed, in whole or in part, by electronic
24 means or electronic records, in which the acts or records of
25 one or both parties are not reviewed by an individual in the
26 ordinary course in forming a contract, performing under an
27 existing contract, or fulfilling an obligation required by the
28 transaction.
29 (c) "Computer program" means a set of statements or
30 instructions to be used directly or indirectly in an
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1 information processing system in order to bring about a
2 certain result.
3 (d) "Contract" means the total legal obligation
4 resulting from the parties' agreement as affected by this
5 section and other applicable provisions of law.
6 (e) "Electronic" means relating to technology having
7 electrical, digital, magnetic, wireless, optical,
8 electromagnetic, or similar capabilities.
9 (f) "Electronic agent" means a computer program or an
10 electronic or other automated means used independently to
11 initiate an action or respond to electronic records or
12 performances in whole or in part, without review or action by
13 an individual.
14 (g) "Electronic record" means a record created,
15 generated, sent, communicated, received, or stored by
16 electronic means.
17 (h) "Electronic signature" means an electronic sound,
18 symbol, or process attached to or logically associated with a
19 record and executed or adopted by a person with the intent to
20 sign the record.
21 (i) "Governmental agency" means an executive,
22 legislative, or judicial agency, department, board,
23 commission, authority, institution, or instrumentality of the
24 Federal Government or of a state or of a county, municipality,
25 or other political subdivision of a state and any other public
26 or private agency, person, partnership, corporation, or
27 business entity acting on behalf of any public agency.
28 (j) "Information" means data, text, images, sounds,
29 codes, computer programs, software, databases, or other
30 similar representations of knowledge.
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1 (k) "Information processing system" means an
2 electronic system for creating, generating, sending,
3 receiving, storing, displaying, or processing information.
4 (l) "Person" means an individual, corporation,
5 business trust, estate, trust, partnership, limited liability
6 company, association, joint venture, governmental agency,
7 public corporation, or any other legal or commercial entity.
8 (m) "Record" means information that is inscribed on a
9 tangible medium or that is stored in an electronic or other
10 medium and is retrievable in perceivable form, including
11 public records as defined in section 119.011(1), Florida
12 Statutes.
13 (n) "Security procedure" means a procedure employed
14 for the purpose of verifying that an electronic signature,
15 record, or performance is that of a specific person or for
16 detecting changes or errors in the information in an
17 electronic record. The term includes a procedure that requires
18 the use of algorithms or other codes, identifying words or
19 numbers, encryption, or callback or other acknowledgment
20 procedures.
21 (o) "State" means a state of the United States, the
22 District of Columbia, Puerto Rico, the United States Virgin
23 Islands, or any territory or insular possession subject to the
24 jurisdiction of the United States. The term includes an Indian
25 tribe or band, or Alaskan native village, which is recognized
26 by federal law or formally acknowledged by a state.
27 (p) "Transaction" means an action or set of actions
28 occurring between two or more persons relating to the conduct
29 of business, commercial, or governmental affairs.
30 (3) SCOPE.--
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1 (a) Except as otherwise provided in paragraph (b),
2 this section applies to electronic records and electronic
3 signatures relating to a transaction.
4 (b) This section does not apply to a transaction to
5 the extent the transaction is governed by:
6 1. A provision of law governing the creation and
7 execution of wills, codicils, or testamentary trusts;
8 2. Chapters 670-680 of the Uniform Commercial Code,
9 other than sections 671.107 and 671.206 and chapters 672 and
10 680 of the Uniform Commercial Code;
11 3. The Uniform Computer Information Transactions Act;
12 or
13 4. Rules relating to judicial procedure.
14 (c) This section applies to an electronic record or
15 electronic signature otherwise excluded from the application
16 of this section under paragraph (b) to the extent such record
17 or signature is governed by a provision of law other than
18 those specified in paragraph (b).
19 (d) A transaction subject to this section is also
20 subject to other applicable provisions of substantive law.
21 (4) PROSPECTIVE APPLICATION.--This section applies to
22 any electronic record or electronic signature created,
23 generated, sent, communicated, received, or stored on or after
24 July 1, 2000.
25 (5) USE OF ELECTRONIC RECORDS AND ELECTRONIC
26 SIGNATURES; VARIATION BY AGREEMENT.--
27 (a) This section does not require a record or
28 signature to be created, generated, sent, communicated,
29 received, stored, or otherwise processed or used by electronic
30 means or in electronic form.
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1 (b) This section applies only to transactions between
2 parties each of which has agreed to conduct transactions by
3 electronic means. Whether the parties agree to conduct a
4 transaction by electronic means is determined from the context
5 and surrounding circumstances, including the parties' conduct.
6 (c) A party that agrees to conduct a transaction by
7 electronic means may refuse to conduct other transactions by
8 electronic means. The right granted by this paragraph may not
9 be waived by agreement.
10 (d) Except as otherwise provided in this section, the
11 effect of any provision of this section may be varied by
12 agreement. The presence in certain provisions of this section
13 of the words "unless otherwise agreed," or words of similar
14 import, does not imply that the effect of other provisions may
15 not be varied by agreement.
16 (e) Whether an electronic record or electronic
17 signature has legal consequences is determined by this section
18 and other applicable provisions of law.
19 (6) CONSTRUCTION AND APPLICATION.--This section shall
20 be construed and applied to:
21 (a) Facilitate electronic transactions consistent with
22 other applicable provisions of law.
23 (b) Be consistent with reasonable practices concerning
24 electronic transactions and with the continued expansion of
25 those practices.
26 (c) Effectuate its general purpose to make uniform the
27 law with respect to the subject of this section among states
28 enacting similar legislation.
29 (7) LEGAL RECOGNITION OF ELECTRONIC RECORDS,
30 ELECTRONIC SIGNATURES, AND ELECTRONIC CONTRACTS.--
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1 (a) A record or signature may not be denied legal
2 effect or enforceability solely because the record or
3 signature is in electronic form.
4 (b) A contract may not be denied legal effect or
5 enforceability solely because an electronic record was used in
6 the formation of the contract.
7 (c) If a provision of law requires a record to be in
8 writing, an electronic record satisfies such provision.
9 (d) If a provision of law requires a signature, an
10 electronic signature satisfies such provision.
11 (8) PROVISION OF INFORMATION IN WRITING; PRESENTATION
12 OF RECORDS.--
13 (a) If parties have agreed to conduct a transaction by
14 electronic means and a provision of law requires a person to
15 provide, send, or deliver information in writing to another
16 person, the requirement is satisfied if the information is
17 provided, sent, or delivered, as the case may be, in an
18 electronic record capable of retention by the recipient at the
19 time of receipt. An electronic record is not capable of
20 retention by the recipient if the sender or the sender's
21 information processing system inhibits the ability of the
22 recipient to print or store the electronic record.
23 (b) If a provision of law other than this section
24 requires a record to be posted or displayed in a certain
25 manner; to be sent, communicated, or transmitted by a
26 specified method; or to contain information that is formatted
27 in a certain manner, the following rules apply:
28 1. The record must be posted or displayed in the
29 manner specified in the other provision of law.
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1 2. Except as otherwise provided in subparagraph (d)2.,
2 the record must be sent, communicated, or transmitted by the
3 method specified in the other provision of law.
4 3. The record must contain the information formatted
5 in the manner specified in the other provision of law.
6 (c) If a sender inhibits the ability of a recipient to
7 store or print an electronic record, the electronic record is
8 not enforceable against the recipient.
9 (d) The requirements of this subsection may not be
10 varied by agreement, provided:
11 1. To the extent a provision of law other than this
12 section requires information to be provided, sent, or
13 delivered in writing but permits that requirement to be varied
14 by agreement, the requirement under paragraph (a) that the
15 information be in the form of an electronic record capable of
16 retention may also be varied by agreement.
17 2. A requirement under a law other than this section
18 to send, communicate, or transmit a record by first-class
19 mail, postage prepaid, or other regular United States mail,
20 may be varied by agreement to the extent permitted by the
21 other provision of law.
22 (9) ATTRIBUTION AND EFFECT OF ELECTRONIC RECORD AND
23 ELECTRONIC SIGNATURE.--
24 (a) An electronic record or electronic signature is
25 attributable to a person if the record or signature was the
26 act of the person. The act of the person may be shown in any
27 manner, including a showing of the efficacy of any security
28 procedure applied to determine the person to which the
29 electronic record or electronic signature was attributable.
30 (b) The effect of an electronic record or electronic
31 signature attributed to a person under paragraph (a) is
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1 determined from the context and surrounding circumstances at
2 the time of its creation, execution, or adoption, including
3 the parties' agreement, if any, and otherwise as provided by
4 law.
5 (10) EFFECT OF CHANGE OR ERROR.--If a change or error
6 in an electronic record occurs in a transmission between
7 parties to a transaction, the following rules apply:
8 (a) If the parties have agreed to use a security
9 procedure to detect changes or errors and one party has
10 conformed to the procedure, but the other party has not, and
11 the nonconforming party would have detected the change or
12 error had that party also conformed, the conforming party may
13 avoid the effect of the changed or erroneous electronic
14 record.
15 (b) In an automated transaction involving an
16 individual, the individual may avoid the effect of an
17 electronic record that resulted from an error made by the
18 individual in dealing with the electronic agent of another
19 person if the electronic agent did not provide an opportunity
20 for the prevention or correction of the error and, at the time
21 the individual learns of the error, the individual:
22 1. Promptly notifies the other person of the error and
23 that the individual did not intend to be bound by the
24 electronic record received by the other person.
25 2. Takes reasonable steps, including steps that
26 conform to the other person's reasonable instructions, to
27 return to the other person or, if instructed by the other
28 person, to destroy the consideration received, if any, as a
29 result of the erroneous electronic record.
30 3. Has not used or received any benefit or value from
31 the consideration, if any, received from the other person.
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1 (c) If paragraphs (a) and (b) do not apply, the change
2 or error has the effect provided by the other provision of
3 law, including the law of mistake, and the parties' contract,
4 if any.
5 (d) Paragraphs (b) and (c) may not be varied by
6 agreement.
7 (11) NOTARIZATION AND ACKNOWLEDGMENT.--
8 (a) If a law requires a signature or record to be
9 notarized, acknowledged, verified, or made under oath, the
10 requirement is satisfied if the electronic signature of the
11 person authorized by applicable law to perform those acts,
12 together with all other information required to be included by
13 other applicable law, is attached to or logically associated
14 with the signature or record. Neither a rubber stamp nor an
15 impression type seal is required for an electronic
16 notarization.
17 (b) A first-time applicant for a notary commission
18 must submit proof that the applicant has, within 1 year prior
19 to the application, completed at least 3 hours of interactive
20 or classroom instruction, including electronic notarization,
21 and covering the duties of the notary public. Courses
22 satisfying this section may be offered by any public or
23 private sector person or entity registered with the Executive
24 Office of the Governor and must include a core curriculum
25 approved by that office.
26 (12) RETENTION OF ELECTRONIC RECORDS; ORIGINALS.--
27 (a) If a law requires that a record be retained, the
28 requirement is satisfied by retaining an electronic record of
29 the information in the record which:
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1 1. Accurately reflects the information set forth in
2 the record after the record was first generated in final form
3 as an electronic record or otherwise.
4 2. Remains accessible for later reference.
5 (b) A requirement to retain a record in accordance
6 with paragraph (a) does not apply to any information the sole
7 purpose of which is to enable the record to be sent,
8 communicated, or received.
9 (c) A person may satisfy paragraph (a) by using the
10 services of another person if the requirements of paragraph
11 (a) are satisfied.
12 (d) If a provision of law requires a record to be
13 presented or retained in its original form, or provides
14 consequences if the record is not presented or retained in its
15 original form, that law is satisfied by an electronic record
16 retained in accordance with paragraph (a).
17 (e) If a provision of law requires retention of a
18 check, that requirement is satisfied by retention of an
19 electronic record of the information on the front and back of
20 the check in accordance with paragraph (a).
21 (f) A record retained as an electronic record in
22 accordance with paragraph (a) satisfies a provision of law
23 requiring a person to retain a record for evidentiary, audit,
24 or similar purposes, unless a provision of law enacted after
25 July 1, 2000, specifically prohibits the use of an electronic
26 record for the specified purpose.
27 (g) This subsection does not preclude a governmental
28 agency of this state from specifying additional requirements
29 for the retention of a record subject to the agency's
30 jurisdiction.
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1 (13) ADMISSIBILITY IN EVIDENCE.--In a proceeding,
2 evidence of a record or signature may not be excluded solely
3 because the record or signature is in electronic form.
4 (14) AUTOMATED TRANSACTIONS.--In an automated
5 transaction, the following rules apply:
6 (a) A contract may be formed by the interaction of
7 electronic agents of the parties, even if no individual was
8 aware of or reviewed the electronic agents' actions or the
9 resulting terms and agreements.
10 (b) A contract may be formed by the interaction of an
11 electronic agent and an individual, acting on the individual's
12 own behalf or for another person, including by an interaction
13 in which the individual performs actions that the individual
14 is free to refuse to perform and which the individual knows or
15 has reason to know will cause the electronic agent to complete
16 the transaction or performance.
17 (c) The terms of the contract are determined by the
18 substantive law applicable to the contract.
19 (15) TIME AND PLACE OF SENDING AND RECEIVING.--
20 (a) Unless otherwise agreed between the sender and the
21 recipient, an electronic record is sent when the record:
22 1. Is addressed properly or otherwise directed
23 properly to an information processing system that the
24 recipient has designated or uses for the purpose of receiving
25 electronic records or information of the type sent and from
26 which the recipient is able to retrieve the electronic record.
27 2. Is in a form capable of being processed by that
28 system.
29 3. Enters an information processing system outside the
30 control of the sender or of a person that sent the electronic
31 record on behalf of the sender or enters a region of the
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1 information processing system designated or used by the
2 recipient which is under the control of the recipient.
3 (b) Unless otherwise agreed between a sender and the
4 recipient, an electronic record is received when the record
5 enters an information processing system that the recipient has
6 designated or uses for the purpose of receiving electronic
7 records or information of the type sent and from which the
8 recipient is able to retrieve the electronic record; and it is
9 in a form capable of being processed by that system.
10 (c) Paragraph (b) applies even if the place the
11 information processing system is located is different from the
12 place the electronic record is deemed to be received under
13 paragraph (d).
14 (d) Unless otherwise expressly provided in the
15 electronic record or agreed between the sender and the
16 recipient, an electronic record is deemed to be sent from the
17 sender's place of business and to be received at the
18 recipient's place of business. For purposes of this paragraph,
19 the following rules apply:
20 1. If the sender or recipient has more than one place
21 of business, the place of business of that person is the place
22 having the closest relationship to the underlying transaction.
23 2. If the sender or the recipient does not have a
24 place of business, the place of business is the sender's or
25 recipient's residence, as the case may be.
26 (e) An electronic record is received under paragraph
27 (b) even if no individual is aware of its receipt.
28 (f) Receipt of an electronic acknowledgment from an
29 information processing system described in paragraph (b)
30 establishes that a record was received but, by itself, does
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1 not establish that the content sent corresponds to the content
2 received.
3 (g) If a person is aware that an electronic record
4 purportedly sent under paragraph (a), or purportedly received
5 under paragraph (b), was not actually sent or received, the
6 legal effect of the sending or receipt is determined by other
7 applicable provisions of law. Except to the extent permitted
8 by the other provisions of law, the requirements of this
9 paragraph may not be varied by agreement.
10 (h) An automated transaction does not establish the
11 acceptability of an electronic record for recording purposes.
12 (16) TRANSFERABLE RECORDS.--
13 (a) For purposes of this subsection, "transferable
14 record" means an electronic record that:
15 1. Would be a note under chapter 673 of the Uniform
16 Commercial Code or a document under chapter 677 of the Uniform
17 Commercial Code if the electronic record were in writing.
18 2. The issuer of the electronic record expressly has
19 agreed is a transferable record.
20 (b) A person has control of a transferable record if a
21 system employed for evidencing the transfer of interests in
22 the transferable record reliably establishes that person as
23 the person to which the transferable record was issued or
24 transferred.
25 (c) A system satisfies paragraph (b), and a person is
26 deemed to have control of a transferable record, if the
27 transferable record is created, stored, and assigned in such a
28 manner that:
29 1. A single authoritative copy of the transferable
30 record exists which is unique, identifiable, and, except as
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1 otherwise provided in subparagraphs 4., 5., and 6.,
2 unalterable.
3 2. The authoritative copy identifies the person
4 asserting control as the person to which the transferable
5 record was issued or, if the authoritative copy indicates that
6 the transferable record has been transferred, the person to
7 which the transferable record was most recently transferred.
8 3. The authoritative copy is communicated to and
9 maintained by the person asserting control or its designated
10 custodian.
11 4. Copies or revisions that add or change an
12 identified assignee of the authoritative copy can be made only
13 with the consent of the person asserting control.
14 5. Each copy of the authoritative copy and any copy of
15 a copy is readily identifiable as a copy that is not the
16 authoritative copy.
17 6. Any revision of the authoritative copy is readily
18 identifiable as authorized or unauthorized.
19 (d) Except as otherwise agreed, a person having
20 control of a transferable record is the holder, as defined in
21 section 671.201(20) of the Uniform Commercial Code, of the
22 transferable record and has the same rights and defenses as a
23 holder of an equivalent record or writing under the Uniform
24 Commercial Code, including, if the applicable statutory
25 requirements under section 673.3021(1), section 677.501, or
26 section 679.308 of the Uniform Commercial Code are satisfied,
27 the rights and defenses of a holder in due course, a holder to
28 which a negotiable document of title has been duly negotiated,
29 or a purchaser, respectively. Delivery, possession, and
30 endorsement are not required to obtain or exercise any of the
31 rights under this paragraph.
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1 (e) Except as otherwise agreed, an obligor under a
2 transferable record has the same rights and defenses as an
3 equivalent obligor under equivalent records or writings under
4 the Uniform Commercial Code.
5 (f) If requested by a person against which enforcement
6 is sought, the person seeking to enforce the transferable
7 record shall provide reasonable proof that the person is in
8 control of the transferable record. Proof may include access
9 to the authoritative copy of the transferable record and
10 related business records sufficient to review the terms of the
11 transferable record and to establish the identity of the
12 person having control of the transferable record.
13 (17) CREATION AND RETENTION OF ELECTRONIC RECORDS AND
14 CONVERSION OF WRITTEN RECORDS BY GOVERNMENTAL AGENCIES.--Each
15 governmental agency shall determine whether, and the extent to
16 which, such agency will create and retain electronic records
17 and convert written records to electronic records.
18 (18) ACCEPTANCE AND DISTRIBUTION OF ELECTRONIC RECORDS
19 BY GOVERNMENTAL AGENCIES.--
20 (a) Except as otherwise provided in paragraph (12)(f),
21 each governmental agency shall determine whether, and the
22 extent to which, such agency will send and accept electronic
23 records and electronic signatures to and from other persons
24 and otherwise create, generate, communicate, store, process,
25 use, and rely upon electronic records and electronic
26 signatures.
27 (b) To the extent that a governmental agency uses
28 electronic records and electronic signatures under paragraph
29 (a), the State Technology Office in consultation with the
30 governmental agency, giving due consideration to security, may
31 specify:
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1 1. The manner and format in which the electronic
2 records must be created, generated, sent, communicated,
3 received, and stored and the systems established for those
4 purposes.
5 2. If electronic records must be signed by electronic
6 means, the type of electronic signature required, the manner
7 and format in which the electronic signature must be affixed
8 to the electronic record, and the identity of, or criteria
9 that must be met by, any third party used by a person filing a
10 document to facilitate the process.
11 3. Control processes and procedures as appropriate to
12 ensure adequate preservation, disposition, integrity,
13 security, confidentiality, and auditability of electronic
14 records.
15 4. Any other required attributes for electronic
16 records which are specified for corresponding nonelectronic
17 records or reasonably necessary under the circumstances.
18 (c) Except as otherwise provided in paragraph (12)(f),
19 this section does not require a governmental agency of this
20 state to use or permit the use of electronic records or
21 electronic signatures.
22 (d) Service charges and fees otherwise established by
23 law applicable to the filing of nonelectronic records shall
24 apply in kind to the filing of electronic records.
25 (19) INTEROPERABILITY.--The governmental agency which
26 adopts standards pursuant to subsection (18) may encourage and
27 promote consistency and interoperability with similar
28 requirements adopted by other governmental agencies of this
29 and other states and the Federal Government and
30 nongovernmental persons interacting with governmental agencies
31 of this state. If appropriate, those standards may specify
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1 differing levels of standards from which governmental agencies
2 of this state may choose in implementing the most appropriate
3 standard for a particular application.
4 (20) SEVERABILITY.--If any provision of this section
5 or its application to any person or circumstance is held
6 invalid, the invalidity does not affect other provisions or
7 applications of this section which can be given effect without
8 the invalid provision or application, and to this end the
9 provisions of this section are severable.
10 Section 2. (1) The Legislature finds that a proper
11 and legitimate state purpose is served by providing the public
12 with access to public records and information on the Internet
13 and determines that the provisions of this act fulfill and
14 further an important state interest.
15 (2) No later than January 1, 2002, the county recorder
16 in each county shall provide a current index of documents
17 recorded in the official records of the county for the period
18 beginning no later than January 1, 1990, on a publicly
19 available Internet website which shall also contain a document
20 requisition point for obtaining images or copies of the
21 documents reflected in the index and which has the capability
22 of electronically providing the index data to a central
23 statewide search site.
24 (3) Each county recorder shall use appropriate
25 Internet security measures to ensure that no person has the
26 ability to alter or to modify any public record.
27 (4) Unless otherwise provided by law, no information
28 retrieved electronically pursuant to this section shall be
29 admissible in court as an authenticated document.
30 (5) By January 1, 2006, each county recorder shall
31 provide for electronic retrieval, at a minimum, images of
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1 documents referenced as the index required to be maintained on
2 the county's official records website by this section.
3 Section 3. This act shall take effect July 1, 2000.
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5 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
6 SB 2416
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8 Provides a popular name by which the bill may be cited as the
"Uniform Electronic Transaction Act."
9
Corrects cross-references to provisions of the Florida Uniform
10 Commercial Code.
11 Specifies that government agencies act in consultation with
the State Technology Office if they opt to transact agency
12 business electronically.
13 Removes provisions relating to the requirement for county
recorders to contract with Florida Association of County
14 Clerks and Comptroller in the transfer of recorded documents
to a publicly accessible website.
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Removes provisions relating to the responsibilities of the
16 Florida Association of County Clerks and Comptroller regarding
a statewide official records website.
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