[Congressional Record Volume 144, Number 106 (Friday, July 31, 1998)]
[House]
[Pages H6873-H6877]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                THE YEAR 2000 INFORMATION DISCLOSURE ACT

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 7, 1997, the gentleman from California (Mr. Horn) is recognized 
for 60 minutes as the designee of the majority leader.
  Mr. HORN. Mr. Speaker, yesterday, the administration sent to Congress 
the Year 2000 Information Disclosure Act. As the chairman, with the 
gentlewoman from Maryland (Mrs. Morella) as cochairman of the House 
Task Force on the Year 2000 Problem, we are encouraged to see the 
President has recommended action on this issue.
  Our subcommittees, the gentlewoman from Maryland (Mrs. Morella) as 
chairman of the Subcommittee on Technology of the Committee on Science, 
myself as chairman of the Subcommittee on Government Management, 
Information and Technology of the Committee on Government Reform and 
Oversight, have long waited for the administration to start very active 
work in this area.

                              {time}  1545

  This issue should be a national priority. The Year 2000 Information 
Disclosure Act is an attempt to facilitate the Year 2000 repairs in the 
private sector. For those that do not know the meaning of that, what we 
are talking about is what happened in the 1960s when we had large 
mainframes in computing, and there was very little storage capacity. 
Somebody had the bright idea, ``Hey, why are we always putting the year 
in as a four-digit year? Why do we not just have 67, not 1967 to 
represent the year. Indeed, that loosened up a lot of storage space in 
the very small capacity computers of the day.
  Thirty five years later, we face the music. They knew in the 1960s 
that we would have this year 2000 problem as we passed January 1, 2000; 
and that is, on that date, the computer will read 00; it will not know 
if it is 2000 or 1900. With that fact comes some of the chaos with 
which we are involved.
  So this Presidential initiative is correctly an urgent matter for 
both the administration and Congress. This legislation deserves our 
very serious consideration in a timely way. This is a bipartisan 
effort.
  Yesterday, by request, the gentleman from Indiana (Mr. Burton), 
chairman of the Committee on Government Reform and Oversight, myself, 
the gentlewoman from Maryland (Mrs. Morella), and 24 original 
cosponsors introduced H.R. 4355.
  Although the year 2000 computer problem is complex and technological, 
the key to solving it is committed and effective management. Senior 
executives--whether they are in the Federal Government, whether they 
are in the State or local governments or in our local hospitals or in 
our nonprofit organizations as well as the thousands of small 
businesses and the many large businesses which face a major problem as 
they rearrange their priorities to make sure that they have freed up 
the fiscal and the human resources to do that job.
  That job begins with an assessment of the situation, that job is then 
one of fixing and renovating the two-digit years into a four-digit 
year. Or the job could be doing away with the year if it is no longer 
needed. Ultimately, the whole phase needs to be completed: testing, 
validation, and implementation of the computer programs which have been 
done so that they can make sure that the program will put it back in 
the operational mode, make sure those computers are working on January 
1, 2000.
  As many of my colleagues know, we have been grading the executive 
branch on their degree of compliance. There is a lot of lagging. Social 
Security is way ahead of the other departments and independent 
agencies. Social Security is about 93 percent done with a year and a 
half to go. That is important. Social Security had the wisdom and the 
vision to start in 1989. No other Federal agency did. A few 
organizations in the private sector did. But Social Security has set 
the example of the time we need to assess, to revamp, to implement, and 
then really test it to be certain that the program works when they are 
run through the date of January 1, 2000.
  The key is the management. Although this problem is in many aspects, 
``Technical,'' but nothing is going to happen if management does not 
take the responsibility and make sure that the technological and human 
resources are motivated, are dealt with so they can divide up the 
problem and get that problem solved in a timely way.
  That is what this is all about, time. No one by executive order or 
anything else can change the coming of January 1, 2000. We have to deal 
with that. This is a worldwide situation. The estimate has been made 
that the cost of conversion is between $300 billion to $500 billion or 
half a trillion dollars to remedy this problem in both the private and 
the public sector in the United States.
  We have half the computers in the world. So the rest of the world has 
a similar problem. Needless to say, some organizations are not going to 
be as active in solving the problem and reaching the goals as will many 
of the major American firms. This will result in another problem, if we 
interact with computers from Asia and Europe, Africa,

[[Page H6874]]

and other parts of the world, we face another very real challenge and 
that, is that our converted systems will be polluted by those which 
have not been revamped.
  To be successful, organizations will have to work with other 
organziations. I commend the administration for sharing our various 
codes dealing with missiles with Russia and others. We do not want any 
mistakes when it comes to missile targeting, missile maintenance, and 
all the rest.
  Besides these problems with the typical computer, we also have 
embedded chips that guide our elevators, our microwaves, many TV sets, 
so forth. There are billions of them throughout the world.
  But what we have done in the two subcommittees over the last 3 years 
is to ask various agencies of the Federal Government, (and the same 
needs to be done at the State and local government, at the major 
businesses and the hospitals, and all the rest) the question: ``What 
are your critical mission systems?''--then focus on converting those 
systems as a high priority. That is where we are now with the Federal 
Government.
  The President did appoint a coordinator, Mr. John Koskinen in 
February. He took office in March. But the clock is ticking. So this 
legislation is very important. It is sort of a Good Samaritan bill to 
make sure that one firm can cooperate with the other, one business with 
the other, industries with the other.
  When that executive pulls together those fiscal and human resources, 
it is very important that management know what is going on, because 
what has happened and what was predicted in our first hearing in April 
of 1996 was that executives who are behind in the conversion will start 
to panic. The cost of human resources will rise. Where do I find 
programmers who know COBAL, a language out of the 1960s. Where do I 
find FORTRAN experts.
  A lot of the COBAL people have retired, but their codes and systems 
live on. Flexibility has been authorized for those hired by the Federal 
government. COBAL specialists are being brought out of retirement. And 
the government is letting them keep their retirement stipend.
  So the problem is when we get the skilled employees we have people 
bidding up the cost of labor higher and higher, whether it be in our 
regional hospitals, whether it be in our State and local governments, 
whether it be in business or any other organizational entity that 
depends on computing power.
  Part of the process in any of these organizations, as I noted, is to 
assess an organization's vulnerability to the problem, both within the 
organization and through all of its information trading partners. 
Organizations should share information in order to identify the 
obstacles and master solutions as quickly as possible.
  A potential barrier, however, to this efficient approach is the fear 
that any disclosure of information related to the year 2000 problem 
could increase an organization's risk of being sued. The executives of 
companies are afraid that they will be sued if they disclose the status 
of the year 2000 compliance of their own products and there are any 
errors in this information. This would obviously be a major concern.
  The Year 2000 Information Disclosure Act is an attempt to relieve 
that concern and encourage that exchange of information between firms 
and industries. The key provision of the bill shields companies that 
make inaccurate statements on year 2000 issues from civil liability 
unless the statements are knowingly false or negligent.
  We can all make mistakes in this complicated area. The hope is that 
this would facilitate effective action as the clock ticks toward 
January 1, 2000. This approach raises some concerns. No one that I know 
wants to relieve companies of liability for building bad products or 
doing sloppy work or simply being careless with the truth. H.R. 4355 is 
not designed to protect those examples of wrong conduct. We need to be 
very careful that we do not inadvertently give any negligent company or 
any negligent organization a free ride.
  There has been some debate over whether the liability protections of 
this bill should extend to communications with consumers. Drawing a 
line between certain types of communications will prove to be very 
difficult. At the same time, we do not want to create a situation where 
unscrupulous companies can take advantage of the year 2000 problem.
  The Year 2000 Information Disclosure Act raises a variety of other 
challenges. For example, should liability protections be extended to 
accurate statements, or should only inaccurate statements be covered? 
Also, who should be covered by the provisions of the bill?
  These are all difficult questions requiring careful, well-informed 
answers within our committee system of the House of Representatives. 
The Committee on the Judiciary has jurisdiction on this matter, and we 
hope that they will give it a very close review and that we will have 
it before us, hopefully, in the next month.
  The test for the positive liability legislation is whether it 
promotes effective year 2000 repairs without creating a windfall for 
negligent organizations. This is a very hard balance to strike, but we 
cannot proceed without that balance. Counterproductive legislation is 
worse than no legislation at all.
  I encourage all my colleagues to think carefully about the need to 
facilitate year 2000 repairs and to consider the best way to accomplish 
that through congressional action. If there is positive legislation to 
be passed, we should act quickly. Time is short. The millennium date 
change will soon be upon us.
  Mr. Speaker, because of the importance of this legislation, I ask 
that H.R. 4355 be printed in the Record for all of our colleagues to 
review, and I also enclose a sectional analysis prepared by the 
administration which will guide my colleagues through the bill.
  We would welcome all these thoughts, as I am sure would the chairman 
of the Committee on the Judiciary, the gentleman from Illinois (Mr. 
Hyde). We look forward to seeing this legislation progress through the 
legislative process.
  I include the documents referred to as follows:

                               H.R. 4355

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Year 2000 Information 
     Disclosure Act''.

     SEC. 2. FINDINGS AND PURPOSES.

       (a) Findings.--The Congress finds the following:
       (1) Thousands of computer systems, software, and 
     semiconductors are not capable of recognizing certain dates 
     in 1999 and after December 31, 1999, and will read dates in 
     the year 2000 and thereafter as if they represent the year 
     1900 or thereafter. This could cripple systems that are 
     essential to the functioning of markets, commerce, consumer 
     products, utilities, government, and safety systems in the 
     United States and throughout the world. Reprogramming or 
     replacing affected systems before this problem cripples 
     essential systems is a matter of national and global 
     interest.
       (2) The prompt and thorough disclosure and exchange of 
     information related to Year 2000 readiness of entities, 
     products, and services would greatly enhance the ability of 
     public and private entities to improve their Year 2000 
     readiness and, thus, is a matter of national importance and a 
     vital factor in minimizing disruption to the Nation's 
     economic well-being.
       (3) Concern about the potential for legal liability 
     associated with the disclosure and exchange of Year 2000 
     compliance information is impeding the disclosure and 
     exchange of such information.
       (4) The capability to freely disseminate and exchange 
     information relating to Year 2000 readiness with the public 
     and with other companies without undue concern about 
     litigation is critical to the ability of public and private 
     entities to address Year 2000 needs in a timely manner.
       (5) The national interest will be served by uniform legal 
     standards in connection with the disclosure and exchange of 
     Year 2000 readiness information that will promote disclosures 
     and exchanges of such information in a timely fashion.
       (b) Purposes.--Based upon the powers contained in Article 
     I, Section 8, Clause 3 of the United States Constitution, the 
     purposes of this Act are to promote the free disclosure and 
     exchange of information related to Year 2000 readiness and to 
     lessen burdens on interstate commerce by establishing certain 
     uniform legal principles in connection with the disclosure 
     and exchange of information related to Year 2000 readiness.

     SEC. 3. DEFINITIONS.

       For purposes of this Act, the following definitions apply:
       (1) Year 2000 statement.--The term ``Year 2000 statement'' 
     means any statement--

[[Page H6875]]

       (A) concerning an assessment, projection, or estimate 
     concerning Year 2000 processing capabilities of any entity or 
     entities, product, or service, or a set of products or 
     services;
       (B) concerning plans, objectives, or timetables for 
     implementing or verifying the Year 2000 processing 
     capabilities of an entity or entities, a product, or service, 
     or a set of products or services; or
       (C) concerning test plans, test dates, test results, or 
     operational problems or solutions related to Year 2000 
     processing by--
       (i) products; or
       (ii) services that incorporate or utilize products.
       (2) Statement.--The term ``statement'' means a disclosure 
     or other conveyance of information by 1 party to another or 
     to the public, in any form or medium whatsoever, excluding, 
     for the purposes of any actions brought under the securities 
     laws, as that term is defined in section 3(a)(47) of the 
     Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(47)), 
     documents or materials filed with the Securities and Exchange 
     Commission, or with Federal banking regulators pursuant to 
     section 12(i) of the Securities Exchange Act of 1934, or 
     disclosures or writings made specifically in connection with 
     the sale or offering of securities.
       (3) Year 2000 processing.--The term ``Year 2000 
     processing'' means the processing (including, without 
     limitation, calculating, comparing, sequencing, displaying, 
     or storing), transmitting, or receiving of date or date/time 
     data from, into, and between the twentieth and twenty-first 
     centuries, and the years 1999 and 2000, and leap year 
     calculations.
       (4) Year 2000 internet website.--The term ``Year 2000 
     Internet website'' means an Internet website or other similar 
     electronically accessible service, designated on the website 
     or service by the person creating or controlling the website 
     or service as an area where Year 2000 statements and other 
     information about the Year 2000 processing capabilities of an 
     entity or entities, a product, service, or a set of products 
     or services, are posted or otherwise made accessible to the 
     general public.
       (5) Covered action.--The term ``covered action'' means a 
     civil action arising under Federal or State, law except for 
     any civil action arising under Federal or State law brought 
     by a Federal, State, or other public entity, agency, or 
     authority acting in a regulatory, supervisory, or enforcement 
     capacity.
       (6) Republication.--The term ``republication'' means any 
     repetition of a statement originally made by another.
       (7) Consumer.--The term ``consumer'' means an individual 
     who buys a consumer product other than for purposes of 
     resale.
       (8) Consumer product.--The term ``consumer product'' means 
     any personal property or service which is normally used for 
     personal, family, or household purposes.

     SEC. 4. PROTECTION FOR YEAR 2000 STATEMENTS.

       (a) In General.--Except as otherwise provided in subsection 
     (c), in any covered action, to the extent such action is 
     based on an allegedly false, inaccurate, or misleading Year 
     2000 statement, the maker of any such statement shall not be 
     liable under Federal or State law with respect thereto unless 
     the claimant establishes, in addition to all other requisite 
     elements of the applicable action, that the statement was 
     material, and--
       (1) where the statement was not a republication, that the 
     statement was--
       (A) made with knowledge that the statement was false, 
     inaccurate, or misleading;
       (B) made with an intent to mislead or deceive; or
       (C) made with a grossly negligent failure to determine or 
     verify that the statement was accurate and not false or 
     misleading; and
       (2) where the statement was a republication of a statement 
     regarding a third party, that the republication was made--
       (A) with knowledge that the statement was false, 
     inaccurate, or misleading; or
       (B) without a disclosure by the maker that the republished 
     or repeated statement is based on information supplied by 
     another and that the maker has not verified the statement.
       (b) Year 2000 Internet Website.--In any covered action in 
     which the adequacy of notice about Year 2000 processing is at 
     issue and no clearly more effective method of notice is 
     practicable, the posting of a notice by the entity purporting 
     to have provided such notice on that entity's Year 2000 
     Internet website shall be presumed to be an adequate 
     mechanism for providing such notice. Nothing in this 
     subsection shall--
       (1) alter or amend any Federal or State statute or 
     regulation requiring that notice about Year 2000 processing 
     be provided using a different mechanism;
       (2) create a duty to provide notice about Year 2000 
     processing;
       (3) preclude or suggest the use of any other medium for 
     notice about Year 2000 processing or require the use of an 
     Internet website; or
       (4) mandate the content or timing of any notices about Year 
     2000 processing.
       (c) Defamation or Similar Claims.--In any covered action 
     arising under any Federal or State law of defamation, or any 
     Federal or State law relating to trade disparagement or a 
     similar claim, to the extent such action is based on an 
     allegedly false Year 2000 statement, whether oral or 
     published in any medium, the maker of any such Year 2000 
     statement shall not be liable with respect to such statement, 
     unless the claimant establishes by clear and convincing 
     evidence, in addition to all other requisite elements of the 
     applicable action, that the statement was made with knowledge 
     that the statement was false or with reckless disregard as to 
     its truth or falsity.
       (d) Limitation on Effect of Year 2000 Statements.--In any 
     covered action, no Year 2000 statement shall be interpreted 
     or construed as an amendment to or alteration of a written 
     contract or written warranty, whether entered into by a 
     public or private party. This subsection shall not apply--
       (1) to the extent the party whose statement is alleged to 
     have amended or altered a contract or warranty has otherwise 
     agreed in writing to so alter or amend the written contract 
     or written warranty;
       (2) to Year 2000 statements made in conjunction with the 
     formation of the written contract or written warranty; or
       (3) where the contract or warranty specifically provides 
     for its amendment or alteration through the making of a Year 
     2000 statement.

     Existing law shall apply to determine what effect, if any, a 
     Year 2000 statement within the scope of paragraph (1), (2), 
     or (3) has on a written contract or written warranty.
       (e) Special Data Gathering.--A Federal entity, agency, or 
     authority may expressly designate requests for the voluntary 
     provision of information relating to Year 2000 processing 
     (including without limitation, Year 2000 statements) as 
     ``Special Year 2000 Data Gathering Requests'' made pursuant 
     to this subsection. Information provided in response to such 
     requests shall be prohibited from disclosure under the 
     Freedom of Information Act (5 U.S.C. 552 et seq.), and may 
     not be used by any Federal entity, agency, or authority, 
     directly or indirectly, in any civil action arising under any 
     Federal or State law, Provided, however, That nothing in this 
     subsection shall preclude a Federal entity, agency, or 
     authority from separately obtaining the information submitted 
     in response to this subsection through the use of independent 
     legal authorities and using such separately obtained 
     information in any action.

     SEC. 5. EXCLUSIONS.

       (a) Consumer Information.--This Act does not cover 
     statements made directly to a consumer in connection with the 
     sale of a consumer product by the seller or manufacturer or 
     provider of the consumer product.
       (b) Effect on Information Disclosure.--This Act does not 
     affect, abrogate, amend, or alter, and shall not be construed 
     to affect, abrogate, amend, or alter, the authority of a 
     Federal or State entity, agency, or authority to enforce a 
     requirement to provide, disclose, or not to disclose, 
     information under a Federal or State statute or regulation or 
     to enforce such statute or regulation.
       (c) Contracts and Other Claims.--Except as may be otherwise 
     provided in subsection 4(d), this Act does not affect, 
     abrogate, amend, or alter, and shall not be construed to 
     affect, abrogate, amend, or alter, any right by written 
     contract, whether entered into by a public or private party, 
     under any Federal or State law, nor shall it preclude claims 
     not based solely on Year 2000 statements.
       (d) Duty or Standard of Care.--This Act shall not be deemed 
     to impose upon the maker or publisher of any Year 2000 
     statement any increased obligation, duty, or standard of care 
     than is otherwise applicable under Federal or State law. Nor 
     does this Act preclude any party from making or providing any 
     additional disclaimer or like provisions in connection with 
     any Year 2000 statement.
       (e) Trademarks.--This Act does not affect, abrogate, amend, 
     or alter, and shall not be construed to affect, abrogate, 
     amend, or alter, any right in a trademark, trade name, or 
     service mark, under any Federal or State law.
       (f) Injunctive Relief.--Nothing in this Act shall be deemed 
     to preclude a claimant from seeking temporary or permanent 
     injunctive relief with respect to a Year 2000 statement.

     SEC. 6. APPLICABILITY.

       This Act shall apply to any Year 2000 statement made on or 
     after July 14, 1998, through July 14, 2001. This Act shall 
     not affect or apply to any action pending on July 14, 1998.
                                  ____


                   Co-Sponsors of the Year 2000 Bill

       Mr. Horn, Mrs. Morella, Mr. Davis (Virginia), Mr. Sanford, 
     Mr. Kucinich, Mr. Waxman, Mr. Sensenbrenner, Mr. Barcia, Mr. 
     Dingell, Mr. Leach, Mr. LaFalce, Mr. Boucher, Mr. Gordon, Ms. 
     McCarthy (Missouri), Mr. Blumenauer, Mr. Luther, Mr. Brown 
     (California), Ms. DeLauro, Mr. Cummings, Mr. Moran 
     (Virginia), Ms. Johnson (Texas), Ms. DeGette, Mrs. Capps, Ms. 
     Lofgren, Mr. Doyle, and Mr. Lampson.
                                  ____


                   Administration Sectional Analysis


                         section 1--short title

       This section provides a short title for the bill.


                          section 2--findings

       The findings contained in this section declare that the 
     Year 2000 technology problem (hereinafter referred to as 
     ``Y2K'') presents a serious challenge to our Nation's 
     economic security and well-being. This technology problem may 
     cause computers and embedded systems which run our critical 
     infrastructure to malfunction as we progress from the year 
     1999 into the new Millennium. Businesses and organizations, 
     both public and private, throughout the United States and

[[Page H6876]]

     abroad have a very limited period of time to address this 
     problem and ensure that these critical structures continue to 
     operate in a sound and effective manner. This technology 
     problem cuts across all segments of our economy. The bill 
     does not address other concerns held by private sector 
     companies about broader liability questions related to Y2K.
       The findings declare that the potential for legal liability 
     associated with the disclosure and exchange of information on 
     Y2K compliance and readiness has caused a chilling effect on 
     the ability to address this problem. The purpose of this bill 
     is to promote the open sharing of information among all 
     entities, including competitors, about the Y2K problem and 
     solutions to remedy that problem. The bill facilitates this 
     purpose by establishing a uniform standard of legal liability 
     to protect those who share Y2K information in good faith from 
     claims based on disclosures and exchanges of information.
       It should be noted that the Administration has taken steps 
     to allay fears about the potential for antitrust action 
     against parties exchanging information related to Y2K. The 
     Department of Justice has stated in a business review letter 
     to the Securities Industry Association that competitors in 
     any industry who merely share information on Y2K solutions 
     are not in violation of the antitrust laws.


                         section 3--definitions

       This section defines certain terms used in the bill. Of 
     particular note, a ``covered action'' is defined to include 
     any civil action involving either Federal or State law. The 
     definition also includes any civil action brought by or 
     against a Federal, State, or other public entity in which the 
     Federal, State, or other public entity is essentially acting 
     as a customer. Specifically excluded from the coverage of 
     this bill are actions in which a Federal, State, or other 
     public entity is acting in a regulatory, supervisory, or 
     enforcement capacity. Thus, the bill will not limit public 
     regulators, supervisors, and enforcement agencies from 
     carrying out their responsibilities with regard to Y2K 
     information that may be false, inaccurate, or misleading.
       The definition of ``statement'' excludes, for purposes of 
     actions brought under the securities laws, certain materials 
     filed with the Securities and Exchange Commission (SEC) or 
     with Federal banking regulators. Under Section 12(i) of the 
     Securities Exchange Act of 1934, banks and savings 
     associations must file periodic reports with their 
     appropriate Federal banking agency instead of the SEC. This 
     exclusion would also cover those reports. Also, excluded, for 
     these purposes, are any disclosures or writings made 
     specifically in connection with the sale or offering of 
     securities. In addition, this bill is not intended to apply 
     to internal communications within an organization.
       The term ``consumer product'' covers only personal property 
     or services normally used by an individual for personal, 
     family, or household purposes. It does not cover the same 
     product or service when purchased by a business user. 
     However, a product normally purchased for personal use, that 
     may be used only incidentally for business purposes, would 
     still be a consumer product. (For example, if a computer is 
     marketed for use for family bills, communications, and 
     internet access, but a family member may on occasion use it 
     for professional purposes, the product remains a consumer 
     product.)


             Section 4--Protection for Year 2000 Statements

       This section generally deals with five issues, namely, a 
     standard of liability for actions involving Y2K information, 
     use of an Internet website to provide notice, defamation 
     actions, an exclusion for written contracts and warranties, 
     and special Y2K information gathering by Federal agencies.
       This section provides limited liability protection for 
     claims that one party may bring based on an allegedly false, 
     inaccurate, or misleading Y2K statement made by another.
       Subsection (a) addresses claims arising from false, 
     misleading or inaccurate Y2K statements. Where the 
     information contained in a Y2K statement is originally 
     developed by the person or entity making the statement, there 
     would be no liability imposed on the maker, regardless of 
     current law, unless the claimant also proves: (a) that the 
     Y2K statement was material to the underlying legal claim; and 
     (b) that the statement was either (i) made with knowledge 
     that it was false, inaccurate, or misleading, (ii) made with 
     an intent to mislead or deceive others, or (iii) made with a 
     grossly negligent failure to determine or verify that the 
     statement was accurate and not false and misleading.
       In the case of a statement being a republication or 
     restatement of information originating from another entity, 
     the claimant would need to prove the additional elements of: 
     (x) that the Y2K statement was material to the underlying 
     legal claim, and (y) that the statement was republished or 
     repeated either (i) with knowledge that it was false, 
     inaccurate, or misleading, or (ii) without a disclosure by 
     the republisher that the statement was based on information 
     supplied to it by another entity. This subsection is not 
     intended to give protection to the republication of Y2K 
     statements where the subject of the Y2K statement is the 
     party making the republication.
       Subsection (b) establishes a method of providing others 
     with Y2K information through the posting of such information 
     on the entity's Y2K Internet Website where no clearly more 
     effective method of providing notice is practicable. No 
     duty is created for any entity to provide such 
     information; the subsection only grants approval to one 
     medium for notification where notice is required to be 
     provided and no specific medium for notice has been 
     stated. Where a medium for notification is specified 
     either by statute, regulation, or contract, this 
     subsection will not have any effect. Since the Internet is 
     an effective way to distribute to the public Y2K 
     information, this subsection encourages the use of an 
     Internet website as a means of disseminating Y2K 
     information by giving a presumption of adequacy of notice 
     where no other form of notice is dictated by statute or 
     otherwise or is practicable. This section only addresses 
     the adequacy of the mechanism of notice and does not 
     purport to address the adequacy of the substance of the 
     notice or its timelines.
       Subsection (c) addresses claims for defamation, trade 
     disparagement, or the like. In these actions, the additional 
     element to be proven by the claimant, by clear and convincing 
     evidence, is that the Y2K statement was made with knowledge 
     that it was false or with reckless disregard as to the 
     statement's truth or falsity. This section does not preclude 
     a person or entity from seeking injunctive relief against a 
     false, inaccurate, or misleading Y2K statement.
       Subsection (d) reinforces that the bill does not alter, and 
     should not be construed to alter, written contracts by 
     stating that no Y2K statement shall be interpreted or 
     construed as an amendment to or alteration of any public or 
     private written contract or warranty provided that certain 
     explicit conditions are not present.
       Subsection (e) grants Federal agencies and authorities the 
     right to designate any request for the voluntary provision of 
     information relating to Y2K processing as a ``Special Year 
     2000 Data Gathering Request,'' thereby exempting any response 
     from disclosure under the Freedom of Information Act and 
     being used, either directly or indirectly, against the entity 
     providing the response. This subsection does not prevent an 
     agency or authority from separately obtaining from an entity, 
     through its independent legal authority, the information 
     provided in response to a ``Special Year 2000 Data Gathering 
     Request,'' and using such separately acquired information in 
     any action.


                         Section 5--Exclusions

       Subsection (a) makes clear that this bill does not cover 
     statements made directly to a consumer in connection with the 
     sale of a consumer product or service by the seller, 
     manufacturer, or provider of that product or service, because 
     protection for such statements is not necessary to further 
     the purpose of the bill--to encourage the sharing of 
     information regarding Y2K problems and solutions so that 
     organizations can move quickly and efficiently to make their 
     systems ready for January 1, 2000. This exclusion is intended 
     to cover statements made directly to a consumer, such as 
     advertisements in mass media that are directed to consumers, 
     as opposed to advertisements in trade publications directed 
     to business users or a website providing information about a 
     company's products or services that would be of use or 
     interest to those other than consumers as defined in the Act. 
     The exclusion does not cover statements made to an individual 
     buying a consumer product for purposes of resale rather than 
     for personal, family, or household purposes, and the bill 
     continues to cover such statements.
       Subsection (b) makes clear that this bill does not affect, 
     abrogate, amend, or alter the authority of any Federal or 
     State agency to enforce a requirement to provide, disclose, 
     or not disclose information under a Federal or State statute 
     or regulation. Other subsections provide that the bill does 
     not affect, abrogate, amend, or alter written contracts or 
     rights in trademark, trade name, or service name. Thus, a Y2K 
     statement does not necessarily fulfill an entity's obligation 
     under other Federal or State statutes or regulations to 
     provide information about its Y2K status to a Federal or 
     State agency or to consumers. Separately, if any Federal or 
     State statute or regulation (or court or agency order issued 
     under a statute or regulation) prohibits the disclosure of 
     any information, such information may not be included in a 
     Y2K statement. This includes, for example, information 
     contained in or related to examination reports prepared by 
     the financial institutions regulatory agencies. Further, the 
     bill does not preclude a claimant from seeking injunctive 
     relief with respect to a Y2K statement. This injunctive 
     relief may either ban or proscribe an activity, to be 
     affirmative in nature.


                        Section 6--Applicability

       This bill applies to any Y2K statement covered by its terms 
     that is made during a three-year period commencing on July 
     14, 1998, and ending on July 14, 2001. The bill extends its 
     protections beyond the year 2000 because all Y2K technology 
     problems will not be cured by January 2000. This is an 
     ongoing problem which will require the free flow of 
     information for months, and possibly years, into the new 
     Millennium. By the same token, this bill provides a high 
     degree of protection from liability to makers of a narrow 
     category of statements that may be false, inaccurate, or 
     misleading. Therefore, this protection should not be extended 
     for a period of time beyond what is needed and reasonable. 
     For these reasons, the bill provides a three-year window in 
     which the protection is available. Finally, should a claim 
     arise after this

[[Page H6877]]

     three-year window, but result from a statement made within 
     that period, the claim would remain subject to the provisions 
     of this Act.

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