Z-0474.1

HOUSE BILL 1908

ByRepresentatives Graham, Walsh, Griffey, Irwin, and Corry; by request of Secretary of State

AN ACT Relating to repealing the electronic authentication act; amending RCW 9.38.060, 9A.72.085, 43.07.120, 43.07.173, 48.185.005, 58.09.050, and 58.09.110; and repealing RCW 19.34.010, 19.34.020, 19.34.030, 19.34.040, 19.34.100, 19.34.101, 19.34.110, 19.34.111, 19.34.120, 19.34.130, 19.34.200, 19.34.210, 19.34.220, 19.34.230, 19.34.231, 19.34.240, 19.34.250, 19.34.260, 19.34.270, 19.34.280, 19.34.290, 19.34.291, 19.34.300, 19.34.305, 19.34.310, 19.34.311, 19.34.320, 19.34.321, 19.34.330, 19.34.340, 19.34.350, 19.34.351, 19.34.360, 19.34.400, 19.34.410, 19.34.420, 19.34.500, 19.34.501, 19.34.502, 19.34.503, 19.34.900, 19.34.901, and 43.19.794.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 9.38.060 and 2001 c 39 s 1 are each amended to read as follows:

(1) A person shall not knowingly misrepresent the person's identity or authorization to obtain a public key certificate used to reference a private key for creating a digital signature.

(2) A person shall not knowingly forge a digital signature ((as defined in RCW 19.34.020(16))).

(3) A person shall not knowingly present a public key certificate for which the person is not the owner of the corresponding private key in order to obtain unauthorized access to information or engage in an unauthorized transaction.

(4) ((The definitions in RCW 19.34.020 apply to this section.

)) A person who violates this section is guilty of a class C felony punishable under chapter 9A.20 RCW.

Sec. 2. RCW 9A.72.085 and 2014 c 93 s 4 are each amended to read as follows:

(1) Whenever, under any law of this state or under any rule, order, or requirement made under the law of this state, any matter in an official proceeding is required or permitted to be supported, evidenced, established, or proved by a person's sworn written statement, declaration, verification, certificate, oath, or affidavit, the matter may with like force and effect be supported, evidenced, established, or proved in the official proceeding by an unsworn written statement, declaration, verification, or certificate, which:

(a) Recites that it is certified or declared by the person to be true under penalty of perjury;

(b) Is subscribed by the person;

(c) States the date and place of its execution; and

(d) States that it is so certified or declared under the laws of the state of Washington.

(2) The certification or declaration may be in substantially the following form:

(3) For purposes of this section, a person subscribes to an unsworn written statement, declaration, verification, or certificate by:

(a) Affixing or placing his or her signature as defined in RCW 9A.04.110 on the document;

(b) Attaching or logically associating his or her digital signature or electronic signature ((as defined in RCW 19.34.020)) to the document;

(c) Affixing or logically associating his or her signature in the manner described in general rule 30 to the document if he or she is a licensed attorney; or

(d) Affixing or logically associating his or her full name, department or agency, and badge or personnel number to any document that is electronically submitted to a court, a prosecutor, or a magistrate from an electronic device that is owned, issued, or maintained by a criminal justice agency if he or she is a law enforcement officer.

(4) This section does not apply to writings requiring an acknowledgment, depositions, oaths of office, or oaths required to be taken before a special official other than a notary public.

Sec. 3. RCW 43.07.120 and 2015 c 176 s 8101 are each amended to read as follows:

(1) The secretary of state must establish by rule and collect the fees in this subsection:

(a) For a copy of any law, resolution, record, or other document or paper on file in the secretary's office;

(b) For any certificate under seal;

(c) For filing and recording trademark;

(d) For each deed or patent of land issued by the governor;

(e) For recording miscellaneous records, papers, or other documents.

(2) The secretary of state may adopt rules under chapter 34.05 RCW establishing reasonable fees for the following services rendered under chapter 23.95 RCW, Title 23B RCW, chapter 18.100, 19.09, ((19.34,)) 19.77, 23.86, 23.90, 24.03, 24.06, 24.12, 24.20, 24.24, 24.28, 24.36, 25.04, 25.15, 25.10, 25.05, or 26.60 RCW:

(a) Any service rendered in-person at the secretary of state's office;

(b) Any expedited service;

(c) The electronic or facsimile transmittal of information from corporation records or copies of documents;

(d) The providing of information by micrographic or other reduced-format compilation;

(e) The handling of checks, drafts, or credit or debit cards upon adoption of rules authorizing their use for which sufficient funds are not on deposit; and

(f) Special search charges.

(3) To facilitate the collection of fees, the secretary of state may establish accounts for deposits by persons who may frequently be assessed such fees to pay the fees as they are assessed. The secretary of state may make whatever arrangements with those persons as may be necessary to carry out this section.

(4) The secretary of state may adopt rules for the use of credit or debit cards for payment of fees.

(5) No member of the legislature, state officer, justice of the supreme court, judge of the court of appeals, or judge of the superior court may be charged for any search relative to matters pertaining to the duties of his or her office; nor may such official be charged for a certified copy of any law or resolution passed by the legislature relative to his or her official duties, if such law has not been published as a state law.

Sec. 4. RCW 43.07.173 and 2016 c 202 s 61 are each amended to read as follows:

(1) The secretary of state may accept and file in the secretary's office electronic transmissions of any documents authorized or required to be filed pursuant to Title 23, 23B, 24, or 25 RCW or chapter 18.100 RCW. The acceptance by the secretary of state is conditional upon the document being legible and otherwise satisfying the requirements of state law or rules with respect to form and content, including those established under RCW 43.07.170. If the document must be signed, that requirement may be satisfied by an electronic signature ((as defined in RCW 19.34.020)).

(2) If a fee is required for filing the document, the secretary may reject the document for filing if the fee is not received before, or at the time of, receipt.

Sec. 5. RCW 48.185.005 and 2017 c 307 s 1 are each amended to read as follows:

The definitions in this subsection apply throughout this chapter unless the context clearly requires otherwise.

(1)(a)(i) "Delivered by electronic means" includes:

(A) Delivery to an electronic mail address at which a party has consented to receive notices or documents; or

(B) Posting on an electronic network or site accessible via the internet, mobile application, computer, mobile device, tablet, or any other electronic device, together with separate notice of the posting which shall be provided by electronic mail to the address at which the party has consented to receive notice or by any other delivery method that has been consented to by the party.

(ii) "Delivered by electronic means" does not include any communication between an insurer and an insurance producer relating to RCW 48.17.591 and 48.17.595.

(b) "Party" means any recipient of any notice or document required as part of an insurance transaction, including but not limited to an applicant, an insured, a policyholder, or an annuity contract holder.

(2) Subject to the requirements of this section, any notice to a party or any other document required under applicable law in an insurance transaction or that is to serve as evidence of insurance coverage may be delivered, stored, and presented by electronic means ((so long as it meets the requirements of the Washington electronic authentication act (chapter 19.34 RCW). An electronic signature is the equivalent of a digital signature, as those terms are defined in chapter 19.34 RCW, for the purposes of satisfying the requirements of chapter 19.34 RCW under this chapter)).

(3) Delivery of a notice or document in accordance with this section is the equivalent to any delivery method required under applicable law, including delivery by first-class mail; first-class mail, postage prepaid; certified mail; or registered mail.

(4) A notice or document may be delivered by an insurer to a party by electronic means under this section only if:

(a) The party has affirmatively consented to that method of delivery and has not withdrawn the consent;

(b) The party, before giving consent, has been provided with a clear and conspicuous statement informing the party of:

(i) The right the party has to withdraw consent to have a notice or document delivered by electronic means at any time, and any conditions or consequences imposed in the event consent is withdrawn;

(ii) The types of notices and documents to which the party's consent would apply;

(iii) The right of a party to have a notice or document in paper form; and

(iv) The procedures a party must follow to withdraw consent to have a notice or document delivered by electronic means and to update the party's electronic mail address;

(c) The party:

(i) Before giving consent, has been provided with a statement of the hardware and software requirements for access to and retention of notices or documents delivered by electronic means; and

(ii) Consents electronically, or confirms consent electronically, in a manner that reasonably demonstrates that the party can access information in the electronic form that will be used for notices or documents delivered by electronic means as to which the party has given consent; and

(d) After consent of the party is given, the insurer, in the event a change in the hardware or software requirements needed to access or retain a notice or document delivered by electronic means creates a material risk that the party will not be able to access or retain a subsequent notice or document to which the consent applies:

(i) Shall provide the party with a statement that describes:

(A) The revised hardware and software requirements for access to and retention of a notice or document delivered by electronic means; and

(B) The right of the party to withdraw consent without the imposition of any fee, condition, or consequence that was not disclosed at the time of initial consent; and

(ii) Complies with (b) of this subsection.

(5) This section does not affect requirements related to content or timing of any notice or document required under applicable law.

(6) If this title or applicable law requiring a notice or document to be provided to a party expressly requires verification or acknowledgment of receipt of the notice or document, the notice or document may be delivered by electronic means only if the method used provides for verification or acknowledgment of receipt.

(7) The legal effectiveness, validity, or enforceability of any contract or policy of insurance executed by a party may not be denied solely because of the failure to obtain electronic consent or confirmation of consent of the party in accordance with subsection (4)(c)(ii) of this section.

(8)(a) A withdrawal of consent by a party does not affect the legal effectiveness, validity, or enforceability of a notice or document delivered by electronic means to the party before the withdrawal of consent is effective.

(b) A withdrawal of consent by a party is effective within a reasonable period of time, not to exceed thirty days, after receipt of the withdrawal by the insurer.

(c) Failure by an insurer to comply with subsections (4)(d) and (10) of this section may be treated, at the election of the party, as a withdrawal of consent for purposes of this section.

(9) This section does not apply to a notice or document delivered by an insurer in an electronic form before July 24, 2015, to a party who, before that date, has consented to receive a notice or document in an electronic form otherwise allowed by law.

(10) If the consent of a party to receive certain notices or documents in an electronic form is on file with an insurer before July 24, 2015, and pursuant to this section, an insurer intends to deliver additional notices or documents to such party in an electronic form, then prior to delivering such additional notices or documents electronically, the insurer shall:

(a) Provide the party with a statement that describes:

(i) The notices or documents that shall be delivered by electronic means under this section that were not previously delivered electronically; and

(ii) The party's right to withdraw consent to have notices or documents delivered by electronic means, without the imposition of any condition or consequence that was not disclosed at the time of initial consent; and

(b) Comply with subsection (4)(b) of this section.

(11) An insurer shall deliver a notice or document by any other delivery method permitted by law other than electronic means if:

(a) The insurer attempts to deliver the notice or document by electronic means and has a reasonable basis for believing that the notice or document has not been received by the party; or

(b) The insurer becomes aware that the electronic mail address provided by the party is no longer valid.

(12) A producer shall not be subject to civil liability for any harm or injury that occurs as a result of a party's election to receive any notice or document by electronic means or by an insurer's failure to deliver a notice or document by electronic means.

(13) This section does not modify, limit, or supersede the provisions of the federal electronic signatures in global and national commerce act (E-SIGN), P.L. 106-229, as amended.

Sec. 6. RCW 58.09.050 and 1999 c 39 s 1 are each amended to read as follows:

The records of survey to be filed under authority of this chapter shall be processed as follows:

(1)(a) The record of survey filed under RCW 58.09.040(1) shall be an original map, eighteen by twenty-four inches, that is legibly drawn in black ink on mylar and is suitable for producing legible prints through scanning, microfilming, or other standard copying procedures.

(b) The following are allowable formats for the original that may be used in lieu of the format set forth under (a) of this subsection:

(i) Photo mylar with original signatures;

(ii) Any standard material as long as the format is compatible with the auditor's recording process and records storage system. This format is only allowed in those counties that are excepted from permanently storing the original document as required in RCW 58.09.110(5);

(iii) An electronic version of the original if the county has the capability to accept a digital signature issued by ((a licensed certification authority under chapter 19.34 RCW or)) a certification authority under the rules adopted by the Washington state board of registration for professional engineers and land surveyors, and can import electronic files into an imaging system. The electronic version shall be a standard raster file format acceptable to the county.

A two inch margin on the left edge and a one-half inch margin on other edges of the map shall be provided. The auditor shall reject for recording any maps not suitable for producing legible prints through scanning, microfilming, or other standard copying procedures.

(2) Information required by RCW 58.09.040(2) shall be filed on a standard form eight and one-half inches by fourteen inches as designed and prescribed by the department of natural resources. The auditor shall reject for recording any records of corner information not suitable for producing legible prints through scanning, microfilming, or other standard copying procedures. An electronic version of the standard form may be filed if the county has the capability to accept a digital signature issued by ((a licensed certification authority under chapter 19.34 RCW or)) a certification authority under the rules adopted by the Washington state board of registration for professional engineers and land surveyors, and can import electronic files into an imaging system. The electronic version shall be a standard raster file format acceptable to the county.

(3) Two legible prints of each record of survey as required under the provisions of this chapter shall be furnished to the county auditor in the county in which the survey is to be recorded. The auditor, in those counties using imaging systems, may require only the original, and fewer prints, as needed, to meet the requirements of their duties. If any of the prints submitted are not suitable for scanning or microfilming the auditor shall not record the original.

(4) Legibility requirements are set forth in the recorder's checklist under RCW 58.09.110.

Sec. 7. RCW 58.09.110 and 1999 c 39 s 2 are each amended to read as follows:

The auditor shall accept for recording those records of survey and records of corner information that are in compliance with the recorder's checklist as jointly developed by a committee consisting of the survey advisory board and two representatives from the Washington state association of county auditors. This checklist shall be adopted in rules by the department of natural resources.

(1) The auditor shall keep proper indexes of such record of survey by the name of owner and by quarter-quarter section, township, and range, with reference to other legal subdivisions.

(2) The auditor shall keep proper indexes of the record of corner information by section, township, and range.

(3) After entering the recording data on the record of survey and all prints received from the surveyor, the auditor shall send one of the surveyor's prints to the department of natural resources in Olympia, Washington, for incorporation into the statewide survey records repository. However, the county and the department of natural resources may mutually agree to process the original or an electronic version of the original in lieu of the surveyor's print.

(4) After entering the recording data on the record of corner information the auditor shall send a legible copy, suitable for scanning, to the department of natural resources in Olympia, Washington. However, the county and the department of natural resources may mutually agree to process the original or an electronic version of the original in lieu of the copy.

(5) The auditor shall permanently keep the original document filed using storage and handling processes that do not cause excessive deterioration of the document. A county may be excepted from the requirement to permanently store the original document if it has a document scanning, filming, or other process that creates a permanent, archival record that meets or surpasses the standards as adopted in rule by the division of archives and records management in chapter 434-663 or 434-677 WAC. The auditor must be able to provide full-size copies upon request. The auditor shall maintain a copy or image of the original for public reference.

(6) If the county has the capability to accept a digital signature issued by ((a licensed certification authority under chapter 19.34 RCW or)) a certification authority under the rules adopted by the Washington state board of registration for professional engineers and land surveyors, and can import electronic files into an imaging system, the auditor may accept for recording electronic versions of the documents required by this chapter. The electronic version shall be a standard raster file format acceptable to the county.

(7) This section does not supersede other existing recording statutes.

(1) RCW 19.34.010 (Purpose and construction) and 1999 c 287 s 1 & 1996 c 250 s 102;

(2) RCW 19.34.020 (Definitions) and 2000 c 171 s 50, 1999 c 287 s 2, 1997 c 27 s 30, & 1996 c 250 s 103;

(3) RCW 19.34.030 (Secretary—Duties) and 1999 c 287 s 4, 1997 c 27 s 1, & 1996 c 250 s 104;

(4) RCW 19.34.040 (Secretary—Fees—Disposition) and 1997 c 27 s 2 & 1996 c 250 s 105;

(5) RCW 19.34.100 (Certification authorities—Licensure—Qualifications—Revocation and suspension) and 2015 3rd sp.s. c 1 s 404, 2015 c 225 s 21, 1999 c 287 s 5, 1998 c 33 s 1, 1997 c 27 s 3, & 1996 c 250 s 201;

(6) RCW 19.34.101 (Expiration of licenses—Renewal—Rules) and 1997 c 27 s 4;

(7) RCW 19.34.110 (Compliance audits) and 1999 c 287 s 6, 1997 c 27 s 5, & 1996 c 250 s 202;

(8) RCW 19.34.111 (Qualifications of auditor signing report of opinion—Compliance audits under state auditor's authority) and 1999 c 287 s 7 & 1997 c 27 s 6;

(9) RCW 19.34.120 (Licensed certification authorities—Enforcement—Suspension or revocation—Penalties—Rules—Costs—Procedure—Injunctions) and 1999 c 287 s 8, 1997 c 27 s 7, & 1996 c 250 s 203;

(10) RCW 19.34.130 (Certification authorities—Prohibited activities—Statement by secretary advising of certification authorities creating prohibited risks—Protest—Hearing—Disposition—Notice—Procedure) and 1999 c 287 s 9 & 1996 c 250 s 204;

(11) RCW 19.34.200 (Licensed certification authorities—Requirements) and 1999 c 287 s 10, 1997 c 27 s 8, & 1996 c 250 s 301;

(12) RCW 19.34.210 (Certificate—Issuance—Confirmation of information—Confirmation of prospective subscriber—Standards, statements, plans, requirements more rigorous than chapter—Revocation, suspension—Investigation—Notice—Procedure) and 1999 c 287 s 11, 1997 c 27 s 9, & 1996 c 250 s 302;

(13) RCW 19.34.220 (Licensed certification authorities—Warranties, obligations upon issuance of certificate—Notice) and 1997 c 27 s 32 & 1996 c 250 s 303;

(14) RCW 19.34.230 (Subscribers—Representations and duties upon acceptance of certificate) and 1996 c 250 s 304;

(15) RCW 19.34.231 (City or county as certification authority) and 2015 c 72 s 9;

(16) RCW 19.34.240 (Private key—Control—Public disclosure exemption) and 2011 c 60 s 10, 2005 c 274 s 235, 1997 c 27 s 11, & 1996 c 250 s 305;

(17) RCW 19.34.250 (Suspension of certificate—Evidence—Investigation—Notice—Termination—Limitation or preclusion by contract—Misrepresentation—Penalty—Contracts for regional enforcement by agencies—Rules) and 2000 c 171 s 51, 1999 c 287 s 13, 1997 c 27 s 12, & 1996 c 250 s 306;

(18) RCW 19.34.260 (Revocation of certificate—Confirmation—Notice—Release from security duty—Discharge of warranties) and 1997 c 27 s 13 & 1996 c 250 s 307;

(19) RCW 19.34.270 (Certificate—Expiration) and 1996 c 250 s 308;

(20) RCW 19.34.280 (Recommended reliance limit—Liability—Damages) and 1999 c 287 s 14, 1997 c 27 s 14, & 1996 c 250 s 309;

(21) RCW 19.34.290 (Collection based on suitable guaranty—Proceeds—Attorneys' fees—Costs—Notice—Recovery of qualified right of payment) and 1996 c 250 s 310;

(22) RCW 19.34.291 (Discontinuation of certification authority services—Duties of authority—Continuation of guaranty—Process to maintain and update records—Rules—Costs) and 1997 c 27 s 15;

(23) RCW 19.34.300 (Satisfaction of signature requirements) and 1997 c 27 s 16 & 1996 c 250 s 401;

(24) RCW 19.34.305 (Acceptance of digital signature in reasonable manner) and 1997 c 27 s 31;

(25) RCW 19.34.310 (Unreliable digital signatures—Risk) and 1997 c 27 s 17 & 1996 c 250 s 402;

(26) RCW 19.34.311 (Reasonableness of reliance—Factors) and 1997 c 27 s 18;

(27) RCW 19.34.320 (Digital message as written on paper—Requirements—Other requirements not affected—Exception from uniform commercial code) and 1997 c 27 s 19 & 1996 c 250 s 403;

(28) RCW 19.34.321 (Acceptance of certified court documents in electronic form—Requirements—Rules of court on use in proceedings) and 1997 c 27 s 20;

(29) RCW 19.34.330 (Digital message deemed original) and 1999 c 287 s 15 & 1996 c 250 s 404;

(30) RCW 19.34.340 (Certificate as acknowledgment—Requirements—Exception—Responsibility of certification authority) and 2017 c 281 s 38, 1997 c 27 s 21, & 1996 c 250 s 405;

(31) RCW 19.34.350 (Adjudicating disputes—Presumptions) and 1997 c 27 s 22 & 1996 c 250 s 406;

(32) RCW 19.34.351 (Alteration of chapter by agreement—Exceptions) and 1997 c 27 s 34;

(33) RCW 19.34.360 (Presumptions of validity/limitations on liability—Conformance with chapter) and 1999 c 287 s 3;

(34) RCW 19.34.400 (Recognition of repositories—Application—Discontinuance—Procedure) and 1999 c 287 s 16, 1997 c 27 s 23, & 1996 c 250 s 501;

(35) RCW 19.34.410 (Repositories—Liability—Exemptions—Liquidation, limitation, alteration, or exclusion of damages) and 1999 c 287 s 17, 1997 c 27 s 33, & 1996 c 250 s 502;

(36) RCW 19.34.420 (Confidentiality of certain records—Limited access to state auditor) and 2011 1st sp.s. c 43 s 810 & 1998 c 33 s 2;

(37) RCW 19.34.500 (Rule making) and 1997 c 27 s 24 & 1996 c 250 s 603;

(38) RCW 19.34.501 (Chapter supersedes and preempts local actions) and 1997 c 27 s 25;

(39) RCW 19.34.502 (Criminal prosecution not precluded—Remedies not exclusive—Injunctive relief availability) and 1997 c 27 s 26;

(40) RCW 19.34.503 (Jurisdiction, venue, choice of laws) and 1997 c 27 s 27;

(41) RCW 19.34.900 (Short title) and 1996 c 250 s 101;

(42) RCW 19.34.901 (Effective date—1996 c 250) and 2000 c 171 s 52, 1997 c 27 s 28, & 1996 c 250 s 602; and

(43) RCW 43.19.794 (Consolidated technology services agency as certification authority for electronic authentication) and 2015 3rd sp.s. c 1 s 407, 2011 1st sp.s. c 43 s 602, 1999 c 287 s 18, & 1997 c 27 s 29.

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