[Congressional Record Volume 146, Number 24 (Tuesday, March 7, 2000)]
[Senate]
[Pages S1206-S1209]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   UNANIMOUS CONSENT REQUEST--S. 761

  Mr. LOTT. Mr. President, I ask unanimous consent to appoint the 
conferees to S. 761, the Millennium Digital Commerce Act.
  The PRESIDING OFFICER. Is there objection?
  Mr. REID. Mr. President, reserving the right to object, has the 
leader cleared this with someone on this side of the aisle?
  Mr. LOTT. Mr. President, if I could respond to the distinguished 
Democratic whip, this is for conferees on this Millennium Digital 
Commerce Act. We have tried, over the past couple of weeks, to get 
clearance to appoint conferees.
  The recommendation was that we have, I believe, 11 from the Commerce 
Committee, 3 from Banking--6 and 5 and 2 and 1. For some reason, there 
have been objections to that. There continue to be objections, but this 
is a bill that has broad support in the industry and on both sides of 
the aisle. So I am confused and perplexed about why we can't get these 
conferees appointed and move forward to this conference. So it has not 
been signed off on, as I understand it. But since I talked to the 
Democratic leader last week twice, I thought perhaps we had reached a 
point where this could be done.
  Mr. REID. I am confident we can work it out. But at this stage, I 
will have to object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. LOTT. Mr. President, if I could be heard on this issue at this 
time.
  I don't understand, again, what the objection is to this procedural 
motion. The House appointed conferees to this bill 2 weeks ago, and 
they have been calling over saying, ``What is the deal?'' I understand 
that perhaps there are other Senators who would like to be conferees 
from other committees. There is some indication that maybe the problem 
is they don't like the fact there are some Banking conferees. The House 
bill has several provisions that are clearly in the Banking 
jurisdiction, and that is why we have recommended having three from 
Banking--two and one--so we can get this into conference and get it 
worked out.
  There are a lot of us who realize there are Silicon Valley interests 
in this. We also have the Dulles corridor high-tech industry in 
Northern Virginia that really wants this legislation completed. I don't 
think it would be a long conference. So I want to highlight the fact 
that we are anxious to get to conference.
  I have addressed concerns as best I could. I don't think we can take 
Banking members off the conference. Maybe there is another way to solve 
this problem. But since I was getting questions both from the high-tech 
industry and from the House as to why we weren't going on to 
conference, I had to point out or emphasize what the problem was.
  I would be glad to yield to the Senator from Michigan, the author of 
this legislation. He probably knows more about it than any other 
Senator.
  Mr. ABRAHAM. If the majority leader will yield briefly, I thank him 
for making another attempt to appoint conferees on this legislation.
  Mr. President, I share the majority leader's frustration over our 
inability to really move anywhere with this bill. This bill, the 
Millennium Digital Commerce Act, is a bipartisan bill. This legislation 
passed the Senate by unanimous consent. We worked together here to try 
to craft the legislation in a bipartisan fashion. The House companion 
legislation passed by an overwhelming margin.
  I understand--and the majority leader has just indicated it again--
there may be some Members who have concerns with the bill. But, 
obviously, going to conference is the usual procedure for moving 
legislation. As I understand the request that has been put forward, 
there would be six Democratic Senators on the conference committee, 
which is about 15 percent of the entire Senate Democratic caucus who 
would then be able to participate in the proposal.
  Mr. LOTT. If the Senator will yield on that point, I also note at 
this time that I think the House only has perhaps five conferees. I 
don't believe I have ever been to a conference where the House has one-
third as many conferees as the Senate. So we have already tried to 
include as many Senators as we possibly could.
  Mr. ABRAHAM. I do think that is a sufficient number to guarantee the 
views reflected by each side. They would be adequately represented in 
the conference.
  Mr. LOTT. Let me ask the Senator something, if I may. This is a 
sophisticated title, the Millennium Digital Commerce Act. What does 
this bill do?
  Mr. ABRAHAM. Essentially, the legislation is designed to address a 
problem we have now with respect to the

[[Page S1207]]

enforceability of contracts that are entered into electronically. A 
number of States have attempted to deal with this. This would be where 
parties, over the Internet, engage in some form of contractual 
activity. A number of States have passed legislation--in fact, about 45 
States have done so. The problem is that each of these State laws is 
different from the other. As a result of that, it has created a serious 
potential impediment to the expansion of electronic commerce because if 
the laws of two different jurisdictions are different, somebody can 
hide behind that difference to argue that they did not have to fulfill 
the terms of the contract.
  Fortunately, the States are trying to work toward a solution, as they 
have done in other areas of commercial activity. We have a Uniform 
Commercial Code, and the States are trying to work together to address 
these kinds of interstate contracts. That will take time. Even after 
they come to final agreement on a specific format or formula for the 
legislation, it is going to take probably years for all the States to 
adopt it. So this would guarantee the enforceability of contracts 
entered into electronically in the interim. That is the approach we 
have taken, and we hope it will therefore allow continuing growth in 
the area of electronic commerce, which is, as you well know, becoming 
one of the key sectors and key activities in our economy today.
  Mr. LOTT. Mr. President, I want to clarify a point.
  As author of this legislation and as a member of the Commerce 
Committee where this legislation originated--I am a member of that 
committee--does the Senator object to having banking representation as 
a part of this conference?
  I note that the House bill has several provisions that are clearly 
banking-type provisions. Does the Senator see a problem with that?
  Mr. ABRAHAM. I don't, for the very simple reason that in the House, 
the House-passed legislation went beyond the scope of what we passed in 
the Senate to include legislation, or to expand the use of this 
legislation to transactions that involved securities and other 
transactions which would fall under our Banking Committee's 
jurisdiction. Had those been in the initial legislation we introduced 
here, then the jurisdiction of this bill in the Senate might have been 
altered or in some way divided.
  For that reason, I think there is a very valid argument for the 
Banking Committee, because of the broader nature of the legislation 
that came to the House, to participate in the conference.
  Mr. LEAHY. Mr. President, which of the two Senators has the floor?
  The PRESIDING OFFICER. The majority leader has the floor.
  Mr. LOTT. Mr. President, I would be glad to yield to Senator Leahy, 
and I will come back to Senator Abraham, if he desires to have some 
additional time.
  Mr. LEAHY. I wish to ask a question. Were we referring to the 
Abraham-Leahy substitute as it passed the Senate on digital signature? 
Is that what we are referring to? I ask that question of either 
Senator.
  The PRESIDING OFFICER. The Senate is considering nominations.
  Mr. LEAHY. I thank the distinguished majority leader for yielding. I 
ask the question of either the Senator from Michigan or the Senator 
from Mississippi: Are we referring to the Abraham-Leahy substitute that 
passed the Senate on digital signature?
  Mr. LOTT. Mr. President, if I could try to respond, is the Senator a 
cosponsor of the legislation?
  Mr. LEAHY. I believe so, with the substitute that I authored along 
with the Senator from Michigan.
  Mr. LOTT. As is our tradition around here, it could be the Abraham-
Leahy bill, or the Lott-Daschle bill, or something other bill.
  Mr. LEAHY. That is what I am asking.
  Mr. LOTT. I assume the Senator has been interested and involved in 
this.
  Mr. LEAHY. I ask the question of the Senator from Michigan: Am I 
correct that the House only appointed members of the Commerce 
Committee, as opposed to the Banking Committee?
  Mr. LOTT. They appointed only five.
  Mr. LEAHY. They did not appoint anyone from the Banking Committee?
  Mr. LOTT. They did not appoint anybody from the Banking Committee, as 
I understand it.
  Mr. LEAHY. I thank the Senator.
  Obviously, as one of the authors of this legislation, along with the 
distinguished Senator from Michigan, I would like to see the law in its 
present form. I just wanted to make sure, having spent enormous amounts 
of time with the Senator from Michigan and others to work out a 
compromise that allowed it to pass unanimously from this body. Had we 
not done otherwise, we would be in a position of having to make sure 
improvements made in this body were preserved within the legislation.

  Mr. LOTT. I think that clearly would be the intent of our conferees. 
Therefore, I assume Senator Leahy would support getting conferees 
appointed and going to conference. Is that correct?
  Mr. LEAHY. I would be supportive of the Leahy-Abraham compromise.
  Mr. LOTT. I yield to the Senator from Michigan. Senator Daschle is on 
the floor. He may want to get involved in this.
  Mr. ABRAHAM. Mr. President, point of clarification: In the process of 
the appointment of conferees, obviously each Chamber has to appoint 
them based on the respective jurisdictions of the parts of this bill 
that are before us; that is, the House bill as it finished the House 
and the Senate bill as it finished the Senate. Although I don't have an 
intricate knowledge of the jurisdictions of various areas in the House, 
it is my understanding that matters that pertain to the SEC and 
securities-related issues in the House fall under the Commerce 
Committee's jurisdiction, whereas in the Senate they fall under the 
Banking Committee's jurisdiction.
  I think that may explain the problem a little bit because in the 
House it is perfectly reasonable and appropriate that the Commerce 
Committee alone be represented. They have jurisdiction over those 
provisions that are securities-related as well as those that are 
related to the technology side of this. In the Senate, that is not the 
case. Our Banking Committee, not the Commerce Committee, has 
responsibility for those areas. I think that is part of the problem.
  Mr. LOTT. Mr. President, I would be glad to yield to Senator Daschle 
or yield the floor, if he wants to speak on his own time.
  Mr. DASCHLE. Mr. President, I appreciate the leader yielding to me.
  As we go through our daily schedules and responsibilities, I bet I do 
a lot of things which are a source of concern for the majority leader. 
I am sure he is not surprised that the way this matter has been handled 
is a source of concern to me. We talk daily. Sometimes we talk hourly. 
Sometimes I am sure we talk more than he would like. But, nonetheless, 
we talk. To say we were surprised and disappointed that a unanimous 
consent request could be propounded without any notification is an 
understatement. It is disappointing.
  I hope we can avoid surprising one another. But, of course, we do it. 
That is understandable. Certainly, the majority leader has every right 
to proceed in any way he sees most appropriate. I think it is a 
violation of the trust and communication that we try to maintain. And I 
am very disappointed he sought to come to the floor without any 
notification of the issue.
  Let me say three things.
  Mr. LOTT. Mr. President, if the Senator will yield, I apologize to 
Senator Daschle for what led him to make his comments.
  First of all, the Senator will recall that last week we discussed on 
a couple of occasions how we could work through getting the conferees' 
names agreed to and through the body. This morning--I don't remember 
the exact hour--we decided to have a colloquy on this issue. I assumed 
he had been notified and that all of you were aware we were going to 
try to get the conferees appointed and have a colloquy. I first 
realized it had not been done when I saw the expression on one of our 
staff members' face when I stood up and made the unanimous consent 
request. I assumed he had been notified, as he is when we do this sort 
of thing. I don't shift the blame to staff; I accept the 
responsibility. I apologize to Senator Daschle because he should have 
been notified. I assure him we have done a lot of things already this 
year together and I always notify him. We should have done that.

[[Page S1208]]

  Nevertheless, it doesn't diminish the need to get an agreement on 
conferees. I will be glad to work with him to get this done because 
this is a bill that really is important to a large segment of our 
society.
  My own son is also harassing me about how he wants to do e-commerce. 
He is concerned about what he can do. He is doing business in Kentucky. 
We are not only hearing from House Democrats and Republicans, asking, 
Where are your conferees? This is also something my son is harassing me 
about.
  We have to get this worked out some way and real quick.
  I think the Senator is entitled to an apology because of the way this 
was handled. I would expect him to be notified.
  Mr. DASCHLE. Mr. President, I appreciate the majority leader's 
graciousness and accept the apology.
  As I say, we have had a great working relationship this year already 
on a lot of different issues. I appreciate very much the manner in 
which he has expressed himself on this particular situation.
  Let me say to the issue, as he noted, we have attempted to resolve 
this in the past. I give Senator Lott great credit for trying to find 
as many innovative ways in which to address what has been an 
irresolvable conflict.
  We have indicated a willingness to go to conference so long as it 
involves the committee that was responsible for passing this 
legislation. The Commerce Committee held hearings. They marked up the 
bill. They passed it. We are now at a point where the conference 
includes conferees from the Commerce Committee in the House, and we are 
prepared as we move to conference to accept conferees from the Commerce 
Committee.
  The problem is, the chairman of the Banking Committee wants to be 
part
of the conference, and, frankly, the Banking Committee didn't have 
jurisdiction.
  The Banking Committee is not represented on the House side. There is 
no reason that we can understand why the Banking Committee, in and of 
itself, ought to be involved in the conference when they didn't have 
jurisdiction.
  Certainly, the chairman ought to be heard and he ought to be 
recognized as one who certainly has every right to express himself to 
the conferees, as other Members. Let him go to the conference and 
express himself. Let him offer suggestions on the Senate floor.
  But to make him a conferee when we have already agreed that the 
Commerce Committee could move forward, could accomplish what I think is 
unanimous support for the legislation--I am sure we could achieve that 
at some point, and it would be the fastest and most meaningful way with 
which to get it done.
  I am hopeful we can do that. There is no reason for this legislation 
to be delayed anymore. Let's have the conferees work their will. Let's 
get this legislation passed. Like Senator Lott, I think there are a lot 
of people out there, including his son, who ought to see the Senate 
act. I desire that no less than he. Hopefully, we can do it soon.
  Mr. LOTT. Mr. President, I note the House bill includes an entire 
title pertaining to the use of electronic signatures in securities 
transactions. That language falls under the jurisdiction of the House 
Commerce Committee, but in the Senate, the jurisdiction is in the 
Banking Committee. Clearly, there is Banking Committee jurisdiction in 
this legislation in the House bill.
  Also, let me get specific about what and whom we are talking about. 
We are talking about three very thoughtful Members of the Senate who 
have a real interest in these electronic signatures and securities 
transactions. They are: Senator Gramm, the chairman of the Banking 
Committee from Texas; Senator Bennett from Utah, who had been very much 
involved in our efforts to pass the Y2K legislation last year and in a 
number of areas, including cyberterrorism--he is very knowledgeable in 
this whole area--and Senator Sarbanes, the ranking member on the 
Banking Committee.
  These are not three Senators who would be anything but instructive in 
sharing information in an area in which they have a greater knowledge 
than the Members of the Commerce Committee.
  Did the Senator from Michigan wish to comment further?
  Mr. ABRAHAM. I think the majority leader has outlined the 
jurisdictional situation well.
  I reiterate, had the bill that the House passed been the bill that 
was introduced here, clearly the jurisdiction on the Senate side would 
have been differently arranged in some fashion. I don't know if it is 
called sequential jurisdiction or what, but provisions would have 
fallen under the Banking Committee's domain.
  Mr. LOTT. Let me conclude by saying again to Senator Daschle, we 
talked last week and we both tried a couple of innovative ideas as to 
how to work this out. I will continue to do that because I think we 
need to get the conferees appointed. I don't recall any situation quite 
like this, in the last year or two anyway. We ought to be able to find 
a way to get the conferees appointed.
  I yield the floor.
  Mr. DASCHLE. I share the desire expressed by the majority leader to 
get this done. I want to publicly, again, commend Senator Leahy for all 
of his leadership and effort to get the Senate to this point. He spoke 
earlier and I appreciate very much his willingness to stay committed 
and his persistence in getting the Senate to a point where we actually 
could see this become law.
  Maybe there is a way, if we go beyond Commerce jurisdiction, to 
include the leadership of the Judiciary Committee and the leadership of 
the Banking Committee and maybe expand it to include a lot more Members 
than just Commerce Committee members.
  As Senator Lott noted, we can perhaps try to find another innovative 
mix of participants. Certainly if this happens, the distinguished 
Senator from Vermont ought to be a part of the conference. I am sure we 
can work it out at some point.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. ABRAHAM. Before we conclude, I ask unanimous consent to have 
printed letters from a number of organizations that have called on the 
Senate to move to appoint conferees.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                             American Electronics Association,

                                    Washington, DC, March 3, 2000.
     Hon. Thomas A. Daschle,
     Senate Democratic Leader, Hart Senate Office Building, 
         Washington, DC.
       Dear Senator Daschle: On behalf of the American Electronics 
     Association (AEA), I urge you to appoint conferees on S. 761, 
     the Electronic Signatures in Global and National Commerce Act 
     (``E-Sign''), which was passed by the Senate by unanimous 
     consent on November 19, 1999. As you know, the House passed 
     its version of E-Sign by a margin of 356-66 on November 9, 
     1999.
       AEA is the largest high-technology trade association in 
     America, representing over 3,000 companies who develop and 
     manufacture software, electronics and high-technology 
     products. Our member companies range from industry leaders 
     such as Intel, Motorola, Compaq, Microsoft and America 
     Online, to small and medium sized high-technology start up 
     ventures.
       Passage of the E-Sign bill is one of AEA's top legislative 
     priorities for this session of Congress. As you know, our 
     members conduct a tremendous amount of business online. In 
     order to continue the growth of online commerce, companies 
     need to know that they are operating in an atmosphere of 
     legal certainty. The E-Sign bill would establish certainty in 
     online contracting and promote e-commerce by recognizing the 
     validity and enforceability of electronic signatures and 
     records.
       It is now time to move forward with this legislation. The 
     Senate Democratic leadership needs to appoint conferees and 
     move the process along. If there are any legitimate consumer 
     concerns they can be ably addressed in conference.
       Thank you again for your leadership on this most important 
     matter. Please feel free to contact me if I may be of any 
     assistance to you and I look forward to working with you on 
     this and other issues of concern to the high-technology 
     community.
           Very Truly Yours,
     William T. Archey.
                                  ____



                                   Business Software Alliance,

                                    Washington, DC, March 1, 2000.
     Hon. Thomas A. Daschle,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
       Dear Senator Daschle: I am writing to you on behalf of the 
     Business Software Alliance* to urge prompt action by the 
     Senate on S. 761, the Millennium Digital Commerce Act. This 
     bill was passed by the Senate last November, and a similar 
     bill, H.R. 1714, The Electronic Signatures in Global and 
     National Commerce Act, was approved by the House. It is our 
     understanding that further action on these bills is now 
     awaiting

[[Page S1209]]

     the appointment of conferees by the Senate so that 
     reconciliation of the two bills can proceed. We urge you to 
     act quickly.
       Electronic commerce is now a reality. Using electronic 
     networks to purchase goods and services, as well as conduct 
     financial transaction, has rapidly gained tremendous consumer 
     acceptance. A number of legal elements are needed to ensure 
     the continued development of the electronic marketplace. Key 
     among these is ensuring that digital signatures, and other 
     forms of digital authentication, receive substantially the 
     same legal treatment as their pen and ink counterparts. 
     Likewise, the authorization of electronic disclosures in e-
     commerce transactions would be an important step forward. It 
     is critically important to clarify and update the law in 
     these areas, which would deliver a boost to e-commerce and 
     the economy.
       S. 761 is one of the top legislative priorities for 
     software and computer companies for this Congress, and we 
     urge you to appoint conferees at the earliest possible date.
           Sincerely,
                                           Robert W. Holleyman II,
     President and CEO.
                                  ____



                              Securities Industry Association,

                                    Washington, DC, March 2, 2000.
     Hon. Tom Daschle,
     Minority Leader,
     The Capitol, Washington, DC.
       Dear Senator Daschle: On behalf of the Securities Industry 
     Association (SIA) and our member firms I am writing to urge 
     your prompt action on the conference committee to reconcile 
     pending electronic authentication legislation (H.R. 1714 and 
     S. 761). The House has appointed their conference committee 
     members and SIA encourages the Senate to do the same. We ask 
     that you do all within your power to appoint the committee 
     members as soon as possible.
       After many delays this very important legislation is once 
     again being detained. Electronic authentication legislation 
     will play a vital role in expanding electronic commerce. It 
     will not only allow the business community to continue to 
     compete nationally and globally but it will also provide the 
     consumer with choices he did not have before.
       Electronic authentication legislation, when completed and 
     signed into law, will be historic in the effects it will have 
     on the marketplace. But, quick action is needed and with each 
     delay another missed opportunity passes by. SIA thanks you 
     for your leadership and attention to this important issue and 
     encourages you to name conference committee members quickly.
           Sincerely,
     Steve Judge.
                                  ____



                               Coalition for E-Authentication,

                                    Washington, DC, March 2, 2000.

     Subject: Conference on Electronic Signature Legislation (S. 
         761/H.R. 1714)

     Hon. Tom Daschle,
     Minority Leader, U.S. Senate.

     Hon. Harry Reid,
     Minority Whip, U.S. Senate.
       Dear Minority Leader Daschle and Minority Whip Reid: The 
     Coalition on Electronic Authentication (CEA), which includes 
     many of the Nation's leading electronic commerce companies, 
     is writing to urge you to take all steps necessary to 
     expeditiously begin the conference on the Electronic 
     Signature legislation passed by both Houses last Fall.
       Now, with a tight legislative calendar, it is imperative 
     that the conference begins as soon as possible so Congress 
     can complete work on its most important high-tech legislative 
     initiative this year. The House has appointed conferees, as 
     have the Senate Republicans. Now it is time to complete 
     conferee selection so the conference can move forward.
       When enacted, Electronic Signature legislation will be a 
     truly historic step. It will have an immediate and dramatic 
     impact on the growth of electronic commerce and the Internet 
     because it will create, for the first time, the legal 
     certainty required to permit electronic signatures to become 
     widely used nationally by both consumers and businesses. 
     Electronic Signature legislation is essential to help 
     businesses of all kinds expand their use of electronic 
     commerce and meet their customers' growing expectations on 
     how business should be transacted over the Internet. Most 
     importantly, consumers will benefit from the increased 
     security, convenience, and lower costs associated with online 
     business transactions. In addition, with this legislation, 
     businesses will be able to greatly expand their use of 
     business-to-business electronic commerce in ways that will 
     significantly lower their costs.
       Therefore, we respectfully urge you to do everything 
     possible to appoint conferees expeditiously, so the 
     conference can meet and conclude its work as soon as 
     possible.
           Sincerely,
                                          Coalition for Electronic
                                                   Authentication.

  The PRESIDING OFFICER. The Senator from Nevada.

                          ____________________