[Congressional Record Volume 146, Number 37 (Wednesday, March 29, 2000)]
[Senate]
[Page S1846]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
DIGITAL SIGNATURE LEGISLATION
Mr. HOLLINGS. Mr. President, I ask unanimous consent that the
following letter, signed by 45 members of the Democratic Caucus, be
printed in the Record. Moreover, I would like to thank my colleagues,
Senator Sarbanes, ranking member of the Banking Committee, and Senator
Leahy, ranking member of the Judiciary Committee, for their assistance
in the preparation for the conference on S. 761, the digital signature
bill.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Washington, DC, March 28, 2000.
Members of the Conference Committee on Electronic Signature
Legislation United States Congress.
Dear Conferee: We are writing to express our strong support
for legislation that will ensure the electronic marketplace
functions effectively for both businesses and consumers. We
all supported S. 761, the ``Millennium Digital Commerce
Act,'' as it passed the Senate on November 19, 1999. As that
bill proceeds to conference, we continue to believe that it
is important to remove unintended barriers to electronic
commerce. We must provide certainty regarding the legality of
electronic transactions which spur economic growth and
provide many benefits to consumers.
We also want to ensure that any new law would provide
consumer protections equivalent to those currently required
for paper transactions, and would not facilitate predatory or
unlawful practices. The electronic world should be no less
safe for American consumers than the paper world.
According to a recent Commerce Department report entitled
Falling Through the Net, more than 70 percent of American
households do not have access to the Internet. In enacting
legislation to facilitate electronic commerce, we must ensure
that we do not widen the ``digital divide,'' to the
disadvantage of the majority of Americans.
We must ensure that consumer protections established over
several decades are not inadvertently made ineffective by the
transition to electronic transactions. We believe that the
legislation produced by your conference committee must
incorporate the following principles in order for us to
support it:
Ensure effective consumer consent to the replacement of
paper notices with electronic notices.
Ensure that electronic records are accurate, and relevant
parties can retain and access them.
Enhance legal certainty for electronic signatures and
records and avoid unnecessary litigation by authorizing
regulators to provide interpretive guidance.
Avoid unintended consequences in areas outside the scope of
the bill by providing clear federal regulatory authority for
records not covered by the bill's ``consumer'' provisions.
Avoid facilitating predatory or unlawful practices.
Attached is a more detailed description of these
principles.
The conference committee has the opportunity to write the
ground rules for the transition of our economy from paper-
based transactions to electronic transactions. This
transition offers great potential benefits for both business
and consumers, but must be done in a way that preserves basic
consumer protections and ensures the confidentiality and
security of such transactions.
Sincerely,
Patrick Leahy, Paul Sarbanes, Tom Daschle, Chris Dodd,
Max Cleland, John Edwards, Harry Reid, Daniel K. Akaka,
Ernest F. Hollings, Ron Wyden, John F. Kerry, Tom
Harkin, Charles E. Schumer, Frank R. Lautenberg,
Barbara A. Mikulski, Joseph R. Biden, Jr., Jay
Rockefeller, J. Robert Kerrey, Richard J. Durbin,
Barbara Boxer, Carl Levin, John B. Breaux, Daniel K.
Inouye, Mary L. Landrieu, Max Baucus, Richard H. Bryan,
Bob Graham, Jack Reed, Tim Johnson, Evan Bayh, Joseph
I. Lieberman, Jeff Bingaman, Russell D. Feingold,
Dianne Feinstein, Chuck Robb, Byron L. Dorgan, Paul
Wellstone, Patty Murray, Daniel Patrick Moynihan, Ted
Kennedy, Herb Kohl, Robert Torricelli, Blanche L.
Lincoln, Kent Conrad, Robert C. Byrd.
Basic Consumer Protection Principles for Electronic Signature
Legislation
1. Ensure Effective Consumer Consent to the Replacement of
Paper Notices with Electronic Notices.
The final bill must include effective consumer consent
provisions that provide the following protections:
Consumer consent must involve a demonstration that a
consumer will actually have the capacity to receive and read
electronic notices.
Consumers must be notified of their rights, including any
right to receive notices on paper, a description of the types
of records covered, and their right to revert to paper
records (or clear explanation that the option will not be
available because of the purely on-line nature of the
business).
Consumer consent must be reconfirmed if a change in
technology by business results in a material risk that a
consumer will be unable to receive electronic records.
Consumers must be ensured that electronic delivery of
notices will have substantially equivalent reliability as
paper delivery.
Consumer privacy must be protected by requiring that the
provider of the electronic record shall take reasonable steps
to ensure confidentiality and security.
2. Ensure that Electronic Records are Accurate, and That
Relevant Parties Can Access and Retain Them.
The legislation must require that, in order to meet record
delivery and retention requirements under existing consumer
protection laws, businesses must take reasonable precautions
to preserve the accuracy and integrity of electronic records.
In addition, all parties entitled to a copy of a notice or
disclosure by law or regulation should be able to access and
retain an accurate copy of that record for later reference
and settlement of disputes.
3. Enhance Legal Certainty for Electronic Signatures and
Records.
The legislation must provide clear interpretive authority
to the regulatory agencies responsible for implementing the
statutes modified by the legislation. Failure to provide such
authority will create significant business uncertainty about
the requirements for compliance with the law, which in turn
might lead to litigation. Agencies may also be unable to stop
abusive practices and preserve consumer confidence in on-line
transactions without such authority. This authority would not
give agencies the ability to override any of the bill's
requirements, only to clarify how they apply in specific
circumstances.
4. Avoid Unintended Consequences in Areas Outside the Scope
of the Bill.
The legislation must provide clear federal regulatory
authority for records not covered by the bill's consumer
provisions, including authority to exempt requirements from
the bill's provisions if necessary. The broad scope of the
legislation may have unintended consequences for laws and
regulations governing ``records'' outside its intended focus
on business-to-consumer and business-to-business
transactions. For example, the bill could affect rules on the
posting of workplace safety notices. Protections must be
provided against such unintended consequences of the
legislation.
5. Avoid Facilitating Predatory or Unlawful Practices.
The legislation must provide adequate protection against
predatory or unlawful practices.
Mr. LEAHY. Mr. President, I am pleased that my colleagues on the
other side of the aisle have worked out their problems and enabled the
Senate, at last, to appoint conferees on S. 761. I co-authored S. 761
as it passed the Senate, and I look forward to working as a conferee to
ensure that the final conference report respects the principles that
this body endorsed when it passed that legislation by unanimous consent
last year. The letter to conferees dated March 28, 2000, signed by all
45 Democratic Senators, reminds us of those principles.
I am only one conferee among 17 but working with the other 6
Democratic Senate conferees and the 10 Republican Senate conferees. I
will endeavor to encourage electronic commerce with balance, fairness,
and due regard for consumer protection.
The PRESIDING OFFICER. The Senator from Utah.
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