ARCHIVED: Opposition to the Proposed Uniform Computer Information Transactions Act (UCITA)

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January 4, 2000

The Honorable Alan A. Diamonstein
Co-chair, JCOTS Advisory Committee #5
11817 Canon Boulevard
Suite 400
Newport News, VA 23606

The Honorable Joe T. May
Co-chair, JCOTS Advisory Committee #5
P.O. Box 4104
Leesburg, VA 20177-8259

Uniform Computer Information Transactions Act (UCITA)

Dear Delegates Diamonstein and May:

We are among the members of the JCOTS Advisory Committee # 5 who continue to have serious concerns about the proposed Uniform Computer Information Transactions Act that was adopted by the National Conference of Commissioners on Uniform State Laws as a uniform act last July. At today�s Advisory Committee meeting, we all voted against the motion that was passed to recommend UCITA to the members of the Joint Commission on Technology and Science (JCOTS).

As you know, there is ample evidence that UCITA is extremely controversial. The American Law Institute, an original co-sponsor of the drafting project, withdrew and insisted that the draft legislation not become part of the Uniform Commercial Code. The ALI's three representatives on the drafting committee subsequently explained that they had objections to "substance, process, and product." The Federal Trade Commission, the National Consumer Law Center, and the Attorneys General of a majority of states, among many others, have opposed UCITA because it would impair consumers' rights and remedies. Our Virginia libraries oppose it because it will curtail the use and circulation of information that has been in the public domain and would create new layers of costly procedures for libraries. Finally, as more businesses become aware of UCITA�s provisions, they are coalescing to oppose it.

There is also evidence that this proposal is extremely complex and opaque. Certainly the Advisory Committee�s efforts and our review of UCITA demonstrate that even experienced practitioners disagree about how to interpret UCITA and how it would actually work in practice. We note that not only are the Comments that will accompany UCITA not yet finalized, but also we became aware at today�s Advisory Committee meeting that there are amendments yet to be made to the statutory language itself.

We have listened to and read carefully the arguments from those who advocate the adoption of UCITA in Virginia. We still have not heard or read, however, exactly which provisions of current contract or intellectual property law are deficient in protecting software and electronic information, nor how those purported deficiencies have injured Virginia�s thriving technology industry. Members of this Advisory Committee who advocate the adoption of UCITA have not provided specific information about those deficiencies and injuries, making it impossible to weigh the purported benefits of UCITA against how UCITA will harm other parts of Virginia�s economy.

We believe that the citizens of Virginia--and the members of JCOTS in particular--deserve a more thorough analysis of the effects of UCITA before the Commission makes any recommendation to the General Assembly about its adoption in Virginia. Therefore, we recommend that:

  • the Joint Commission continue its review of the proposal during this legislative session. This will give the Commission an opportunity to analyze thoroughly the discussion topics that were raised by members of the Advisory Committee, as well as by others who have expressed concerns, and to propose amendments to mitigate controversy and reduce complexity. We also strongly recommend that JCOTS hold a second public hearing to ensure that all constituencies that will be affected by this proposal have an opportunity for formal comment.
  • members of the American Law Institute who are familiar with the project be invited to give their views on why the ALI withdrew from a project that it originally co-sponsored. This perspective is important to provide a more comprehensive and balanced review of this proposal.
  • should this Commission move forward with a recommendation to adopt UCITA, we request that the Commission�s final report include our written dissent, which would be forwarded to the General Assembly and to the Governor, as provided in the enabling legislation for the Joint Commission. We hope that our concerns will be made known to the broader political and economic communities of Virginia.
We have appreciated the opportunity to serve as members of Advisory Committee # 5 and sincerely hope you will accept these recommendations to conduct a more comprehensive analysis of UCITA before any further action is considered.

Very truly yours,

Peter Alces
Professor of Law
College of William and Mary

Deborah Tussey
Professor of Law
T. C. Williams School of Law
University of Richmond

Hampton "Skip" Auld
Assistant Director, Chesterfield County Public Library and
Vice Chair, Virginia State Networking Users Advisory Board

James Heller
Director of the Law Library and Professor of Law
College of William and Mary
Marshall-Wythe Law Library

Jean Ann Fox
Vice President, Virginia Citizens Consumer Council and
Director of Consumer Protection, Consumer Federation of America

Sarah K. Wiant
Director of the Law Library and Professor of Law
Washington & Lee University
School of Law Library