When winning isn't everything

Forgive me if I come across as a bad winner this week. When it comes to Uniform Computer Information Transactions Act (UCITA), I just haven’t had any practice.

In case you missed the news, on Feb. 10 at the American Bar Association’s house of delegates meeting in Seattle, the National Conference of Commissioners on Uniform State Laws (NCCUSL) withdrew its motion asking the ABA approve UCITA. What many of the news stories missed was that this withdrawal is permanent, meaning NCCUSL has virtually conceded UCITA will never be a uniform law enacted by all the states.

“It is apparent that there is a strongly held view among a number of sections and other delegates that this body should not take a position on the merits of UCITA,” NCCUSL President King Burnett told the ABA delegates in withdrawing the motion. “We have no intention of bringing this act back [to the ABA] in the future.”

Because the ABA's house of delegates as a whole could neither debate nor vote after the motion was withdrawn, NCCUSL subsequently tried to portray the withdrawal as less than a total defeat. In point of fact, though, the ABA conducted quite a number of debates and votes on UCITA. Five ABA sections — policy-making groups within the ABA that focus on a particular area of the law — examined UCITA in the weeks leading to the Seattle meeting and took a position. All recommended that their members vote to table UCITA indefinitely.

Perhaps the most important of these recommendations, in terms of UCITA's future, was that taken by the ABA business law section. "Generally, uniform acts illustrate an emerging consensus around certain areas of the law," the business law section council wrote when urging ABA delegates to vote to postpone indefinitely consideration of UCITA. "Clearly, there is no consensus here. … It is the strong preference and sentiment of the section leadership to refrain from an endorsement of this proposal and, instead, to support a motion to postpone. Please also be advised that if the motion to postpone is defeated, the business law section delegates have been instructed by the section's council to vote 'no' on the proposed resolution."

Many of the other sections that took a stance on UCITA followed the same formula, asking the delegates to vote to postpone if they could, and to vote to reject if they had to. In addition to the sections, several smaller standing committees also voiced their concerns. Perhaps the most telling of these — at least in terms of showing that ABA members clearly understood what they were dealing with — was a letter from the ABA's standing committee on law and national security explaining why the committee could not support the motion to approve UCITA. “We are unable to support this resolution because the ‘automatic restraint’ provision could allow for the installation of ‘backdoors’ and present a significant security concern, potentially affecting key aspects of our nation's critical infrastructure,” the security committee’s letter read in part.