Ms. Josephine Scarlett
Attorney
Office of the Chief Counsel
NTIA
Room 4713
14th Street and Constitution Ave., NW
Washington, D.C. 20230
Re: Request for Comments on the Court Documents Exception to
the Electronic Signatures in Global and National Commerce Act
Docket No. 020816196-2196-01
Dear Ms. Scarlett:
These comments are submitted on behalf of the low-income clients
of the National Consumer Law Center1, as well
as Consumers Union, the Consumer Federation of America,
and the U.S. Public Interest Research Group.2
We appreciate the requirement imposed upon the Department of Commerce to evaluate
the continued need for the exceptions to E-Sign contained in 15 U.S.C. §
7003. We also appreciate the confusing state of the law on the question of the
effect of these exemptions on both federal and state court documents. While
we address both these issues below, our overwhelming interest in filing these
comments is to emphasize the message that will be sent if these exceptions are
removed. Because there are still substantial members of the U.S. population
which do not have ready access to the internet, and pro se
use of the courts is increasing, NTIA must avoid endorsing any requirement that
access to courts be limited to those who can use and access electronic records.
As the NTIA has itself recognized in its latest report on the
digital divide – A NATION ONLINE: How Americans Are Expanding Their
Use of the Internet3 almost half the population
of the United States still does not have Internet access.4
As a result, public policies must take into account this unconnected
part of the population.
There is a significant difference between enabling the
use of electronic records and requiring the use of electronic records.
Congress’ passed E-Sign5 in 2000 to facilitate
electronic commerce, not to require that everyone use electronic means to communicate
and transact business.6 This distinction can become meaningless,
however, if the judicial system can require electronic communication as a means
to exercise one’s rights to access to redress. While all parties are united
in the goal of enabling and facilitating electronic communication (for those
who choose it), it is imperative that the Department of Commerce send a loud
and clear message that no person should be required to use electronic means
to access the judicial system in this country.
Two important statistics converge in the consideration at issue
here. NTIA’s own findings on the numbers of Americans who are both without
access to the Internet and without access to computers, and a variety of findings
about the burgeoning use of the courts by pro se litigants –
people who are without attorneys to represent them. While pro se litigants
do not necessarily lack access to computers and the Internet, they are certainly
more likely to.
As is clear from a review of the judicial literature related
to the operation of both state and federal courts, pro se litigation
is growing at prodigious rates.7 For example, in California
more half of the cases brought to family court features at least one unrepresented
litigant, and in Phoenix, Arizona over 88 percent of the domestic relations
cases involved at least one self-represented litigant.8 Even
the federal courts are seeing an increase in pro se cases – data
from the Administrative Office of the U.S. Courts reveal that in one recent
two year period, the number of self-represented litigants in federal appeals
courts increased by 49 percent.9
Most litigants in the both the federal and state courts systems
who represent themselves do so because of lack of funds to hire an attorney.10
As NTIA’s own data shows: people who have lower incomes are also far more
likely not to have access to computers and/or the Internet.11
Requiring that people who do not have access to electronic media file and receive
court documents electronically, would thus have the consequence of closing the
courts’ doors to many lower income people.
As is evident from the questions posed in this Docket by NTIA,
both the federal courts and the state courts have already moved forward to allow
electronic access to the courts and the judicial system. Indeed, the breadth
of this new electronic access raises significant issues related to privacy of
court records.12 However, there is a crucial distinction between
improving access to the courts by allowing electronic communication, and requiring
electronic communication. Nothing the NTIA does in this docket should be construed
to encourage judicial systems to require electronic communications as a means
of participating in the justice system.
Consumer Consent Requirement. As courts
have already permitted electronic records to replace paper writing requirements,
the impact of NTIA’s decision in this docket is somewhat unclear. If NTIA
removes court records from the list of exceptions in 15 U.S.C. § 7002,
then it could be argued that whenever a writing requirement in the court system
was replaced with an electronic record to be provided to a consumer, then the
consumer consent requirements in § 7001(c) would be applicable. If the
definition of consumer in E-Sign were to be read to include pro se
litigants, this would be an excellent result. In other words, if court records
were not excluded from E-Sign, electronic records replacing writing requirements
would clearly fall within all of the strictures of § 7001. This would mean
that anytime a court rule permits electronic records to be provided to pro
se litigants in place of writings, the records would not be considered
to have been provided unless self-represented litigant had received the disclosures
in § 7001(c) and had electronically consented in a manner that reasonably
demonstrates the litigant could access electronic records, per the requirements
of E-Sign.
We submit that requiring consumer consent to apply to pro
se litigants would be both excellent policy, and a wise course of action
to avoid dispute and unnecessary litigation over the question. As a result,
the Department of Commerce should recommend that E-Sign’s consumer consent
requirement apply whenever electronic records are to be provided to pro
se litigants in the judicial system. The Department of Commerce has an
opportunity in the current docket to recommend a policy that furthers protections
for pro se litigants, and clarifies the applicable law.
Please contact us if you would like to discuss these issues with
us in more detail. Thank you for your consideration of these comments.
Sincerely,
Margot Saunders
Managing Attorney
_________________________________
1 The National Consumer Law Center is a nonprofit
organization specializing in consumer issues on behalf of low-income people.
We work with thousands of legal services, government and private attorneys,
as well as community groups and organizations, from all states who represent
low-income and elderly individuals on consumer issues. As a result of our daily
contact with these advocates, we have seen examples of predatory practices against
low-income people in almost every state in the union. It is from this vantage
point – many years of dealing with the abusive transactions thrust upon
the less sophisticated and less powerful in our communities – that we
supply these comments. We have led the effort to ensure that electronic transactions
subject to both federal and state laws provide an appropriate level of consumer
protections. We publish and annually supplement fourteen practice treatises
which describe the law currently applicable to all types of consumer transactions,
including Consumer Banking and Payments Law (2d Ed. 2002), which examines consumer
rights in a variety electronic transactions.
2 The Consumer Federation of America is a nonprofit
association of over 280 pro consumer groups, with a combined membership of 50
million people. CFA was founded in 1968 to advance consumers' interests through
advocacy and education.
Consumers Union is the publisher of Consumer Reports.
The U.S. Public Interest Research Group is the national lobbying office for
state PIRGs, which are non profit, non partisan consumer advocacy groups with
half a million citizen members around the country.
5 Electronic Signatures in Global and National
Commerce Act, 15 U.S.C. § 7001, et seq.
6 In fact, E-Sign explicitly states that the Act
does not “require any person to agree to use or accept electronic records
or electronic signatures . . . .” 15 U.S.C. § 7001(b)(2).
7 See, e.g. American Judicature Society, Results
of A National Survey of Pro Se Assistance Programs: A Preliminary Report,
http://www.ajs.org./prose/pro_murphy.asp.
; Conference of State Court Administrators, Position Paper on Self-Represented
Litigation, Adopted August 3, 2000; National Center for State Courts, Pro
Se: Self-repreented Litigants Frequently Asked Questions, May 21, 2002.
www.ncsconline.org.
8Id. At 2.
9Id.
10 “In surveys conducted at four of the
project sites, the proportion of self-represented litigants who reported that
they could not afford a lawyer ranged from 40% in the Delaware Family Court
to 73% in the Colorado 20th Judicial District Court. Moreover, many cases filed
by self-represented litigants involve only small amounts of money, making it
difficult to find lawyers willing to take the case on a contingency basis.”
State Justice Institute, Access to Justice: Meeting the Needs of Self-Represented
Litigants, 2002 at 8. www.ncsconline.org.
11A NATION ONLINE: How Americans Are Expanding
Their Use of the Internet, Tables 2-1 and 2.2, at 24 and 26, respectively.
