[Congressional Record Volume 146, Number 76 (Friday, June 16, 2000)]
[Senate]
[Pages S5281-S5290]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT--CONFERENCE 
                            REPORT--Resumed

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
proceed to vote on the conference report accompanying S. 761, which the 
clerk will report.
  The legislative clerk read as follows:

       The conference report on S. 761, an act to regulate 
     interstate commerce by electronic means by permitting and 
     encouraging the continued expansion of electronic commerce 
     through the operation of free market forces, and for other 
     purposes.

  Mr. BURNS. Mr. President, I commend Senator Abraham, Senator McCain, 
and Chairman Bliley for their hard work in the conference on the 
digital signatures bill, which grants online contracts and other 
transactions the same legal force as those conducted with pen-and-ink. 
I should add that Senator Leahy and Senator Wyden made significant 
positive contributions to the bill. I am an original cosponsor of this 
legislation and I am very pleased with the conference report before the 
Senate today.
  Yesterday, the House of Representatives voted overwhelmingly in favor 
of the conference report by a vote of 426-4. I urge my colleagues to 
support the conference report, which is a bipartisan product that will 
allow businesses to

[[Page S5282]]

take advantage of the speed and efficiency of the Internet while also 
protecting consumers. I have no doubt that the passage of this 
legislation will help to make sure that electronic commerce can meet 
its full potential.
  The issue of online authentication is one of the most important 
issues to the development of electronic commerce. Electronic commerce 
holds great promise, in particular, for states like my home state of 
Montana, where businesses and consumers have to deal with vast 
distances. E-commerce is expected to continue its upward surge to about 
$1.6 trillion by 2003, up from $500 billion last year. The explosion of 
information technology has created opportunities undreamed of by 
previous generations. In Montana, companies such as Healthdirectory.com 
and Vanns.com are taking advantage of the global markets made possible 
by the stunning reach of the Internet.
  This bill allows for consumers to enter into binding contracts over 
the Internet and eliminates the need to engage in needless, burdensome 
exchanges of paper documents. This bill will create a uniform system 
where contracts have the same validity across all 50 states.
  The bill is also technology-neutral and does not impose government 
mandates on what formats or software businesses or consumers choose to 
use to conduct online commerce.
  Numerous consumer safeguards are included in the conference report, 
including the requirement that consumers confirm that they are able to 
read the format that companies use for online contracts. Also, 
safeguards are contained in the bill that will still require that 
critical notices such as insurance cancellation and mortgage 
foreclosure notices be sent on paper. Furthermore, consumers still have 
the right to receive any documents on paper if they so choose.
  The passage of the digital signatures bill is a critical step in 
ensuring the continued growth of the Internet-driven economy. This 
legislation grants additional choice and convenience to consumers and 
will also translate into more efficient products and services.
  Mr. President, I remind my colleagues of the work of Senator Abraham 
and Senator McCain, Chairman Bliley in the other body, Senator Leahy, 
and Senator Wyden who had quite a lot to do with this. Of course, it 
came out of the Subcommittee on Communications. This is just one more 
of the digital dozen we set our goals to pass during this Congress.
  So far, we are up around the eighth or ninth bill out of that digital 
dozen that will probably lend greater credence to the Internet and the 
way we use it as a tool in business and in our personal lives. I thank 
those Senators who were instrumental in passing this legislation. I 
congratulate them and I yield the floor.


                      consumer consent provisions

  Mr. McCAIN. Mr. President, I want to engage in a colloquy with the 
Senator from Michigan, who is the original sponsor of the electronic 
signatures legislation, to discuss the consumer consent provisions in 
the conference report.
  Mr. ABRAHAM. Mr. President, I welcome the chance to participate in a 
colloquy about the consent provisions in the conference report.
  Mr. McCAIN. Is it the Senator's understanding that pursuant to 
subsection 101(c)(1)(C)(ii) of the conference report a consumer's 
affirmative consent to the receipt of electronic records needs to 
``reasonably demonstrate'' that the consumer will be able to access the 
various forms of electronic records to which the consent applies?
  Mr. ABRAHAM. Yes. The conference report requires a ``reasonable 
demonstration'' that the consumer will be able to access the electronic 
records to which the consent applies. By means of this provision, the 
conferees sought to provide consumers with a simple and efficient 
mechanism to substantiate their ability to access the electronic 
information that will be provided to them.
  Mr. McCAIN. I agree. The conferees did not intend that the 
``reasonable demonstration'' requirement would burden either consumers 
or the person providing the electronic record. In fact, the conferees 
expect that a ``reasonable demonstration'' could be satisfied in many 
ways. Does the Senator agree with me that the conferees intend that the 
reasonable demonstration requirement is satisfied if the consumer 
confirmed in an e-mail response to the provider of the electronic 
records that he or she can access information in the specified formats?
  Mr. ABRAHAM. Yes. An e-mail response from a consumer that confirmed 
that the consumer can access electronic records in the specified 
formats would satisfy the ``reasonable demonstration'' requirement.
  Mr. McCAIN. Does the Senator also agree with me that the ``reasonable 
demonstration'' requirement would be satisfied, for instance, if the 
consumer responds affirmatively to an electronic query asking if he or 
she can access the electronic information or if the affirmative consent 
language includes the consumer's acknowledgement that he or she can 
access the electronic information in the designated format?
  Mr. ABRAHAM. Yes. A consumer's acknowledgment or affirmative response 
to such a query would satisfy the ``reasonable demonstration'' 
requirement.
  Mr. McCAIN. Would the ``reasonable demonstration requirement'' be 
satisfied if it is shown that the consumer actually accesses records in 
the relevant electronic format?
  Mr. ABRAHAM. Yes. The requirement is satisfied if it is shown that 
the consumer actually accesses electronic records in the relevant 
format.
  Mr. McCAIN. Mr. President, I appreciate my colleague's willingness to 
participate in this colloquy to clarify the clear intent of the 
conference with respect to this provision.


                           legislative scope

  Mr. GRAMM. Mr. President, I would like to engage in a colloquy with 
the gentleman from Michigan, Senator Abraham, who is the original 
sponsor of the legislation on electronic signatures, to discuss the 
scope of the legislation.
  Mr. ABRAHAM. Mr. President, I would welcome the chance to participate 
in a colloquy about the scope of the electronic signature legislation.
  Mr. GRAMM. Is it the understanding of the Senator from Michigan that 
the act is not intended to restrict the scope or availability of any 
other federal statute, regulation and other rule of law (whether 
currently in effect or becoming effective in the future) that requires, 
authorizes or otherwise allows for the use of electronic signatures or 
electronic records, to the extent such federal statute, regulation, or 
other rule of law is consistent with the provisions of the act? Any 
such other statute, regulation or other rule of law will continue to be 
fully and independently effective. Rather, this act is intended to 
operate as a uniform national baseline permitting electronic signatures 
and electronic records to be used with respect to certain activities 
notwithstanding other inconsistent statutes, regulations or other rules 
of law. Am I correct in my statement regarding the intent of this 
legislation?
  Mr. ABRAHAM. Yes, the Senator, the chairman of the Banking Committee, 
is correct. This act is intended to facilitate e-commerce and to 
provide legal certainty for electronic signatures, contracts and 
records where such certainty does not exist today. It is not in any way 
intended to limit the effectiveness of any other statute, regulation or 
other rule of law which permits the use of electronic records, 
electronic delivery, and electronic signatures, and which is otherwise 
consistent with the provisions of the act.
  Mr. GRAMM. As to its coverage, does the Senator agree that this act 
is intended to operate very broadly to permit the use of electronic 
signatures and electronic records in all business, consumer and 
commercial contexts? This breadth is accomplished through the use of 
the term ``transaction,'' which is defined broadly to include any 
action or set of actions relating to the conduct of business, consumer 
or commercial affairs between two or more persons. For example, a 
unilateral action or set of actions by one of the parties to the 
underlying transaction, or by any other person with any interest in the 
underlying transaction, or a response by one party to the other's 
action, all are covered by the act. In this regard, it is the nature of 
the activity, rather than the number of persons or the identity or 
status of the person or entity involved in the activity, that 
determines the applicability of the act. Have I stated the matter 
correctly?
  Mr. ABRAHAM. Yes, this act applies to all actions or sets of actions 
related

[[Page S5283]]

to the underlying business, consumer, or commercial relationship which 
is based on the nature of the activity and not the number of persons 
involved in the activity. The act is also intended to cover the related 
activities of those persons or entities who are counterparties to, or 
otherwise involved in or related to, the covered activity.
  Mr. GRAMM. It is my understanding that this act, for example, covers 
any activity that would qualify as a financial activity, an activity 
incidental to a financial activity, or a complementary activity, under 
section 4(k) of the Bank Holding Company Act of 1956, as amended, 
whether or not such activity is conducted by, or subject to any 
limitations or requirements applicable to, a financial holding company.
  In addition, it would cover all activities relating to employee 
benefit plans or any other type of tax-favored plan, annuity or account 
such as an IRA, a 403(b) annuity, or an education savings program, 
including all related tax and other required filings and reports. Is 
this correct?
  Mr. ABRAHAM. Yes, and as a result, the act would apply to such 
activities as the execution of a prototype plan adoption agreement by 
an employer, the execution of an IRA application by an individual, and 
the waiver of a qualified joint and survivor annuity by a plan 
participant's spouse and the designation of any beneficiary in 
connection with any retirement, pension, or deferred compensation plan, 
IRA, qualified State tuition program, insurance or annuity contract, or 
agreement to transfer ownership upon the death of a party to a 
transaction.
  Mr. GRAMM. Mr. President, I appreciate my colleague's willingness to 
participate in this colloquy to clarify the clear intent of the 
conference with respect to the scope of this act.
  Mr. ABRAHAM. Mr. President, because the differences between the House 
and Senate passed bills required much careful contemplation on the part 
of the Conferees that may not be apparent in the final text of the 
Conference Report, and because the Conference did not produce an 
official interpretive statement regarding the Conference Report, as the 
primary author of S. 761, I have prepared an explanatory document that 
should serve as a guide to the intent behind the following provisions 
of S. 761.
  Mr. President, I ask unanimous consent that a section-by-section 
explanation of S. 761 be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 EXPLANATORY STATEMENT OF S. 761, THE ``ELECTRONIC SIGNATURE IN GLOBAL 
                      AND NATIONAL COMMERCE ACT''


                              Short Title

     Senate bill
       Section 1 establishes the short title of the bill as the 
     ``Millennium Digital Commerce Act.''
     House amendment
       Section 1 establishes the short title of the bill as the 
     ``Electronic Signature in Global and National Commerce Act.''
     Conference substitute
       The conference report adopts the House provision.

             Electronic Records and Signatures in Commerce


                        GENERAL RULE OF VALIDITY

     Senate bill
       Section 5(a) of the Senate bill sets forth the general 
     rules that apply to electronic commercial transactions 
     affecting interstate commerce. This section provides that in 
     any commercial transaction affecting interstate commerce a 
     contract may not be denied legal effect or enforceability 
     solely because an electronic signature or record was used in 
     its formation.
       Section 5(b) authorizes parties to a contract to adopt or 
     otherwise agree on the terms and conditions on which they 
     will use and accept electronic signatures and electronic 
     records in commercial transactions affecting interstate 
     commerce.
     House amendment
       Section 101(a) of the House amendment establishes a general 
     rule that, with respect to any contract or agreement 
     affecting interstate commerce, notwithstanding any statute, 
     regulation or other rule of law, the legal effect, validity, 
     and enforceability of such contract or agreement shall not be 
     denied on the ground that: (1) the contract or agreement is 
     not in writing if the contract or agreement is an electronic 
     record; and (2) the contract or agreement is not signed or 
     affirmed by written signature if the contract or agreement is 
     signed or affirmed by an electronic signature.
       Section 101(b) provides that with respect to contracts or 
     agreements affecting interstate commerce, the parties to such 
     contracts or agreements may establish procedures or 
     requirements regarding the use and acceptance of electronic 
     records and electronic signatures acceptable to such parties. 
     Further, the legal effect, validity, or enforceability for 
     such contracts or agreements shall not be denied because of 
     the type or method of electronic record or electronic 
     signature selected by the parties.
       Nothing in section 101(b) requires a party to enter into 
     any contract or agreement utilizing electronic signatures or 
     electronic records. Rather, it gives the parties the option 
     to enter freely into online contracts and agreements.
     Conference Substitute
       The House recedes to the Senate with an amendment.
       The general rule provides that notwithstanding any statute, 
     regulation, or other rule of law (other than titles one and 
     two) with respect to any transaction in or affecting 
     interstate or foreign commerce: (1) a signature, contract, or 
     other record relating to such transaction may not be denied 
     legal effect, validity, or enforceability solely because it 
     is in electronic form, and (2) a contract relating to such 
     transaction may not be denied legal effect, validity, or 
     enforceability solely because an electronic signature or 
     electronic record was used in its formation.
       Section 101(a) establishes a basic federal rule of non-
     discrimination with respect to the use of electronic 
     signatures and electronic records, including electronic 
     contracts. Subject to the Act's consumer consent requirement 
     (Sec. 101(c)) and specific exceptions (Sec. 103), this 
     federal rule of non-discrimination means that a State 
     generally cannot refuse to allow parties to use electronic 
     signatures and electronic records in lieu of paper records 
     and handwritten signatures. This federal rule also means that 
     if two parties agree with one another, electronically or 
     otherwise, on the terms and conditions on which they will 
     accept and use electronic signatures and electronic records 
     in their dealings with one another and the parties could have 
     entered into a comparable agreement regarding the use of 
     signatures and records in the paper world, the State cannot 
     refuse to give effect to the parties' agreement.
       The term ``solely'' in section 101(a)(1) and 101(a)(2) is 
     intended to prevent challenges to the legal effect, validity, 
     or enforceability of an electronic signature, contract, or 
     other record that are based on objections to the 
     ``electronic'' quality of such signature, contract, or other 
     record. In addition, Section 101 should not be interpreted to 
     permit a challenge based on the combination of a signature, 
     contract, or other record being in electronic form (Section 
     101(a)(1)) and having an electronic signature or electronic 
     record used in its formation (Section 101(a)(2); in this 
     sense, solely truly means ``solely or in part''.
       The conferees agreed to strike title III of the House bill 
     (HR 1714) with respect to electronic records, signatures or 
     agreements covered under the federal securities laws because 
     the title I provisions of the conference agreement are 
     intended to encompass the House title III provisions. The 
     reference in section 101(a) of the conference agreement to 
     ``any transaction in or affecting interstate or foreign 
     commerce'' is intended to include electronic records, 
     signatures and agreements governed by the Securities Exchange 
     Act of 1934 and all electronic records, signatures and 
     agreements used in financial planning, income tax 
     preparation, and investments. Therefore, the conference 
     agreement did not need to single out or treat differently 
     electronic records, signatures and agreements regulated by 
     federal securities laws in a separate title.
       In section 101(b), the conference report makes clear that 
     title I of the conference substitute does not (1) limit, 
     alter, or otherwise affect any requirements imposed by a 
     statute, regulation, or rule of law relating to the rights 
     and obligations of persons under such statute, regulation, or 
     rule of law other than requirements that contracts or other 
     records be written, signed, or in non-electronic form; or (2) 
     require any person, with respect to a record other than a 
     contract, to agree to use or accept electronic records or 
     electronic signatures.
       Section 101(c) specifies consumer protections in e-
     commerce. If a statute, regulation, or other rule of law 
     requires that a record relating to a transaction in or 
     affecting interstate or foreign commerce be provided or made 
     available to a consumer in writing, an electronic record 
     may be substituted if (1) the consumer affirmatively 
     consents to receive an electronic record and has not 
     withdrawn such consent, (2) the consumer, prior to 
     consenting, is provided with a clear and conspicuous 
     statement informing the consumer of rights or options to 
     have the record provided or made available on paper, and 
     the right of the consumer to withdraw the consent to 
     electronic records and of any conditions, consequences 
     (which may include termination of the parties' 
     relationships), or fees in the event of withdrawal of 
     consent. Further, the consumer is informed of whether the 
     consent applies only to the initial transaction or to 
     identified categories of records that follow the initial 
     transaction. Disclosure must also be made describing the 
     procedures the consumer must use to withdraw consent and 
     to update information needed to contact the consumer 
     electronically. The consumer must also be informed

[[Page S5284]]

     of how after the consent, the consumer may, upon request, 
     obtain a paper copy of electronic records, and whether any 
     fee will be charged for such copy.
       Section 101(c) honors the provisions of underlying law 
     (except as to the specifics of writing and consent 
     requirements); the Act does not create new requirements for 
     electronic commerce but simply allows disclosures or other 
     items to be delivered electronically instead of on paper. 
     This means that if a consumer protection statute requires 
     delivery of a paper copy of a disclosure or item to a 
     consumer, then the consent and disclosure requirements of 
     subsection (c)(1)(A-D) must be satisfied. Otherwise, 
     subsection (c) does not disturb existing law.
       Section 101(c)(1) refers to writings that are required to 
     be delivered to consumers by some other law, such as the 
     Truth-in-Lending Act. The reference to consumers is 
     intentional: subsection (c) only applies to laws that are 
     specifically intended for the protection of consumers. When a 
     statute applies to consumers as well as to non-consumers, 
     subsection (c)(1) should not apply. In this way, the 
     subsection preserves those special consumer protection 
     statutes enacted throughout this Nation without creating 
     artificial constructs that do not exist under current law. At 
     no time in the future should these ``consent'' provisions of 
     101(c), which are intended to protect consumers (as defined 
     in this legislation), be permitted to migrate through 
     interpretation so as to apply to business-to-business 
     transactions.
       Pursuant to subsection (c)(1)(C)(i), the consumer must be 
     provided, prior to consenting, with a clear and conspicuous 
     statement describing the hardware and software requirements 
     to access and retain electronic records.
       Subsection (c)(1)(C)(ii) requires that the consumer's 
     consent be electronic or that it be confirmed electronically, 
     in a manner that reasonably demonstrates that the consumer 
     will be able to access the various forms of electronic 
     records to which the consent applies. The requirement of a 
     reasonable demonstration is not intended to be burdensome on 
     consumers or the person providing the electronic record, and 
     could be accomplished in many ways. For example, the 
     `reasonable demonstration' requirement is satisfied if the 
     provider of the electronic records sent the consumer an e-
     mail with attachments in the formats to be used in providing 
     the records, asked the consumer to open the attachments in 
     order to confirm that he could access the documents, and 
     requested the consumer to indicate in an e-mailed response to 
     the provider of the electronic records that he or she can 
     access information in the attachments. Similarly, the 
     `reasonable demonstration' requirement is satisfied if it is 
     shown that in response to such an e-mail the consumer 
     actually accesses records in the relevant electronic 
     format. The purpose of the reasonable demonstration 
     provision is to provide consumers with a simple and 
     efficient mechanism to substantiate their ability to 
     access the electronic information that will be provided to 
     them.
       Subsection (c)(1)(D) requires that after the consent of a 
     consumer, if a change in the hardware or software 
     requirements needed to access or retain electronic records 
     creates a material risk that the consumer will not be able to 
     access or retain a subsequent electronic record that was the 
     subject of the consent, the person providing the electronic 
     record must provide the consumer with a statement of the 
     revised hardware and software requirements for access to and 
     retention of the electronic records, and the right to 
     withdraw consent without the imposition of any fees for such 
     withdrawal, and the right to withdraw without the imposition 
     of any condition or consequence that was not disclosed.
       Subsection (c)(2) includes a savings clause making clear 
     that nothing in this title affects the content or timing of 
     any disclosure or other record required to be provided or 
     made available to any consumer under any statute, regulation, 
     or other rule of law. Further, subsection (c)(2) provides 
     that if a law that was enacted prior to this Act expressly 
     requires a record to be provided or made available by a 
     specified method that requires verification or acknowledgment 
     of receipt, the record may be provided or made available 
     electronically only if the method used provides verification 
     or acknowledgment of receipt (whichever is required).
       Section 101(c)(3) makes clear that an electronic contract 
     or electronic signature cannot be deemed ineffective, 
     invalid, or unenforceable merely because the party 
     contracting with a consumer failed to meet the requirements 
     of the consent to electronic records provision.
       Compliance with the consent provisions of section 101(c) is 
     intended to address the effectiveness of the provision of 
     information in electronic form, not the validity or 
     enforceability of the underlying contractual relationship or 
     agreement between the parties. In other words, a technical 
     violation of the consent provisions cannot in and of itself 
     invalidate an electronic contract or prevent it from being 
     legally enforced. Rather, the validity and enforceability of 
     the electronic contract is evaluated under existing 
     substantive contract law, that is, by determining whether the 
     violation of the consent provisions resulted in a consumer 
     failing to receive information necessary to the enforcement 
     of the contract or some provision thereof. For example, if it 
     turns out that the manner in which a consumer consented did 
     not `reasonably demonstrate' that she could access the 
     electronic form of the information at a later date, but at 
     the time of executing the contract she was able to view its 
     terms and conditions before signing, the contract could still 
     be valid and enforceable despite the technical violation of 
     the electronic consent provision.
       Subsection (c)(4) provides that withdrawal of consent by a 
     consumer shall not affect the legal effectiveness, validity, 
     or enforceability of electronic records provided or made 
     available to that consumer in accordance with paragraph (1) 
     prior to implementation of the consumer's withdrawal of 
     consent. A consumer's withdrawal of consent shall be 
     effective within a reasonable period of time after receipt of 
     the withdrawal by the provider of the record. Failure to 
     comply with paragraph (1)(D) may, at the election of the 
     consumer, be treated as a withdrawal of consent for purposes 
     of this paragraph.
       Subsection (c)(5) makes clear that this subsection does not 
     apply to any records that are provided or made available to a 
     consumer who has consented prior to the effective date of 
     this title to receive such records in electronic form as 
     permitted by any statute, regulation, or other rule of law.
       Subsection (c)(6) provides that an oral communication or a 
     recording of an oral communication shall not qualify as an 
     electronic record for purposes of this subsection except as 
     otherwise provided under applicable law.
       It should be noted that Section 101(c)(6) does not preclude 
     the consumer from using her voice to sign or approve that 
     record. Proper voice signatures can be very effective in 
     confirming a person's informed intent to be legally 
     obligated. Therefore, the consumer could conceivably use an 
     oral or voice signature to sign a text record that was 
     required to be given to her ``in writing''. Moreover, the 
     person who originated the text record could authenticate it 
     with a voice signature as well. The spoken words of the 
     signature might be something like ``I Jane Consumer hereby 
     sign and agree to this loan document and notice of interest 
     charges.''
       By way of clarification, the intent of this clause is to 
     disqualify only oral communications that are not authorized 
     under applicable law and are not created or stored in a 
     digital format. This paragraph is not intended to create an 
     impediment to voice-based technologies, which are certain to 
     be an important component of the emerging mobile-commerce 
     market. Today, a system that creates a digital file by means 
     of the use of voice, as opposed to a keyboard, mouse or 
     similar device, is capable of creating an electronic record, 
     despite the fact that it began its existence as an oral 
     communication.
       Section 101(d) addresses statutory and regulatory record 
     retention requirements. It states that when a statute, 
     regulation, or other rule of law requires that a record, 
     including a contract, be retained that requirement is 
     satisfied by the retention of an electronic record, if two 
     criteria are met. First, the electronic record must 
     accurately reflect the information set forth in the contract 
     or record required to be retained. Second, that electronic 
     record must remain accessible to all parties who by law are 
     entitled to access the record for the period set out in that 
     law. Moreover, the electronic record must be in a form 
     capable of accurate reproduction for later reference. The 
     reproduction may be by way of transmission, printing or any 
     other method of reproducing records.
       With respect to Section 101(d)(1)(B), this subsection only 
     requires retained records to remain accessible to persons 
     entitled to access them by statute. The subsection does not 
     require the business to provide direct access to its 
     facilities nor does it require the business to update 
     electronic formats as technology changes--the records must, 
     however, be capable of being accurately reproduced at the 
     time that reference to them is required by law.
       Section 101(e) addresses statutory and regulatory 
     requirements that certain records, including contracts, be in 
     writing. The statute of frauds writing requirement 
     exemplifies one such legal requirement. The section states 
     that an electronic record or contract may be denied legal 
     effect and enforceability under section 101(a) of this Act, 
     if such an electronic record is not in a form that is capable 
     of being retained and accurately reproduced for later 
     reference by all parties entitled to retain that contract or 
     record. This provision is intended to reach two qualities of 
     ``a writing'' in the non-electronic world. The first such 
     quality of ``a writing'' is that it can be retained, e.g., a 
     contract can be filed. The second such quality of ``a 
     writing'' is that it can be reproduced, e.g., a contract 
     can be copied.
       With respect to Section 101(e), the actual inability of a 
     party to reproduce a record at a particular point in time 
     does not invoke this subsection. The subsection merely 
     requires that if a statute requires a contract to be in 
     writing, then the contract should be capable of being 
     retained and accurately reproduced for later reference by 
     those entitled to retain it. Thus if a customer enters into 
     an electronic contract which was capable of being retained or 
     reproduced, but the customer chooses to use a device such as 
     a Palm Pilot or cellular phone that does not have a printer 
     or a disk drive allowing the customer to make a copy of the 
     contract at that particular time, this section is not 
     invoked. The record was in a form that was capable of being 
     retained and reproduced by the customer had it chosen to use 
     a device allowing retention and reproduction.

[[Page S5285]]

       Subsection (f) clarifies that nothing in title I affects 
     the proximity requirement of any statute, regulation, or 
     other rule of law with respect to any warning, notice, 
     disclosure, or other record required to be posted, displayed, 
     or publicly affixed.
       Subsection (g) provides that if a statute, regulation, or 
     other rule of law requires a signature or record to be 
     notarized, acknowledged, verified, or made under oath, that 
     requirement is satisfied if the electronic signature of the 
     person authorized to perform those acts, together with all 
     other information required to be included by other applicable 
     statute, regulation, or rule of law, is attached to or 
     logically associated with the signature or record. This 
     subsection permits notaries public and other authorized 
     officers to perform their functions electronically, provided 
     that all other requirements of applicable law are satisfied. 
     This subsection removes any requirement of a stamp, seal, or 
     similar embossing device as it may apply to the performance 
     of these functions by electronic means.
       It is my intent that no requirement for the use of a stamp, 
     seal, or similar device shall preclude the use of an 
     electronic signature for these purposes.
       Subsection (h) provides legal effect, validity and 
     enforceability to contracts and record relating to a 
     transaction in or affecting interstate or foreign commerce 
     that were formed, created or delivered by one or more 
     electronic agents.
       Subsection (i) makes clear that the provisions of title I 
     and II cover the business of insurance.
       Subsection (j) provides protection from liability for an 
     insurance agent or broker acting under the direction of a 
     party that enters into a contract by means of an electronic 
     record or electronic signature if: (1) the agent or broker 
     has not engaged in negligent, reckless, or intentional 
     tortious conduct; (2) the agent or broker was not involved in 
     the development or establishment of such electronic 
     procedures; and (3) the agent or broker did not deviate from 
     such procedures.


              authority to alter or supersede general rule

     Senate bill
       Section 5(g) of the Senate bill provides that section 5 
     does not apply to any State in which the Uniform Electronic 
     Transaction Act is in effect.
     House amendment
       Section 102(a) of the House amendment provides that a State 
     statute, regulation or other rule of law enacted or adopted 
     after the date of enactment of H.R. 1714 may modify, limit, 
     or supersede the provisions of section 101 (except as 
     provided in section 102(b)) if that State action: (1) is an 
     adoption or enactment of the UETA as reported by the NCCUSL 
     or specifies alternative procedures or requirements 
     recognizing the legal effect, validity and enforceability of 
     electronic signatures; and (2) for statutes enacted or 
     adopted after the date of enactment of this Act, makes 
     specific reference to the provisions of section 101.
       Section 102(b) provides that no State statute, regulation, 
     or rule of law (including those pertaining to insurance), 
     regardless of date of enactment, that modifies, limits, or 
     supersedes section 101 shall be effective to the extent that 
     such statute, regulation, or rule of law: (1) discriminates 
     in favor of or against a specific technology, method, or 
     technique; (2) discriminates in favor of or against a 
     specific type or size of entity engaged in the business of 
     facilitating the use of electronic signatures and electronic 
     records; (3) is based on procedures or requirements that are 
     not specific and that are not publicly available; and (4) is 
     otherwise inconsistent with the provisions of section 101.
       Section 103(c) provides that a State may, by statute, 
     regulation or rule of law enacted or adopted after the date 
     of enactment of this Act, require specific notices to be 
     provided or made available in writing if such notices are 
     necessary for the protection of the public health or safety 
     of consumers. A consumer may not, pursuant to section 
     101(b)(2) consent to the provision or availability of such 
     notice solely as an electronic record.
     Conference substitute
       The conference report adopts a substitute provision. 
     Section 102 of the conference report provides a conditioned 
     process for States to enact their own statutes, regulations 
     or other rules of law dealing with the use and acceptance of 
     electronic signatures and records and thus opt-out of the 
     federal regime. The preemptive effects of this Act apply to 
     both existing and future statutes, regulations, or other 
     rules of law enacted or adopted by a State. Thus, a State 
     could not argue that section 101 does not preempt its 
     statutes, regulations, or other rules of law because they 
     were enacted or adopted prior to the enactment of this Act.
       Section 102(a) provides that a State statute, regulation or 
     other rule of law may modify, limit, or supersede the 
     provisions of section 101 only if that State action: (1) 
     constitutes an adoption or enactment of the Uniform 
     Electronic Transactions Act (UETA) as reported and 
     recommended for enactment by the National Conference of 
     Commissioners on Uniform State Laws (NCCUSL) in 1999; or (2) 
     specifies alternative procedures or requirements (or both) 
     for the use or acceptance of electronic signatures or 
     electronic records for establishing the legal effect, 
     validity and enforceability of contracts or records.
       It is intended that any State that enacts or adopts UETA in 
     its State to remove itself from Federal preemption pursuant 
     to subsection (a)(1) shall be required to enact or adopt UETA 
     as that document was reported and recommended for enactment 
     by NCCUSL.
       Subsection (a)(1) places a limitation on a State that 
     attempts to avoid Federal preemption by enacting or adopting 
     a clean UETA. Section 3(b)(4) of UETA, as reported and 
     recommended for enactment by NCCUSL, allows a State to 
     exclude the application of that State's enactment or adoption 
     of UETA for any `other laws, if any, identified by State.' 
     This provision provides a potential loophole for a State to 
     prevent the use or acceptance of electronic signatures or 
     electronic records in that State. To remedy this, subsection 
     (a)(1) requires that any exception utilized by a State under 
     section 3(b)(4) of UETA shall be preempted if it is 
     inconsistent with title I or II, or would not be permitted 
     under subsection (a)(2)(ii) (technology neutrality). 
     Requirements for certified mail or return receipt would not 
     be inconsistent with title I or II, however, note that an 
     electronic equivalent would be permitted.
       As stated above, subsection (a)(2) is designed to cover any 
     attempt by a State to escape Federal preemption by enacting 
     or adopting specific alternative procedures or requirements 
     for the use or acceptance of electronic signatures or records 
     except a strict enactment or adoption of UETA (which would be 
     covered by subsection (a)(1)). States that enact UETA in the 
     manner specified in (a)(1) may supercede the provisions of 
     section 101 with respect to State law. Thus, regulatory 
     agencies within a state which complies with (a)(1) would 
     interpret UETA, not section 101 of the federal act.
       Further, some States are enacting or adopting a strict, 
     unamended version of UETA as well as enacting or adopting a 
     companion or separate law that contains further provisions 
     relating to the use or acceptance of electronic signatures or 
     electronic records. Under this Act, such action by the State 
     would prompt both subsection (a)(1) (for the strict enactment 
     or adoption of UETA) and subsection (a)(2) (for the other 
     companion or separate legislation).
       Subsection (a)(2) contains two important conditions that 
     limit the extent to which a state could utilize it to opt-out 
     of the federal regime. Specifically, when interpreting 
     section 101, alternative procedures or requirements: (1) must 
     be consistent with this title and title II; and (2) shall not 
     require, or accord greater legal status or effect to, the 
     implementation or application of a specific technology or 
     technological specification for performing the functions of 
     creating, storing, generating, receiving, communicating, or 
     authenticating electronic signatures or records. It is not 
     intended that the singular use of technology or technological 
     specification in subsection (a)(2)(A)(ii) allows a State to 
     set more than one technology at the expense of other 
     technologies in order to meet this standard, unless only one 
     form of the technology exists, in which case this act is not 
     intended to preclude a technological solution. Further, 
     inclusion of the `or accord greater legal status or effect 
     to' is intended to prevent a state from giving a leg-up or 
     impose an additional burden on one technology or technical 
     specification that is not applicable to all others, and is 
     not intended to prevent a state or its subdivisions from 
     developing, establishing, using or certifying a certificate 
     authority system.
       In addition, subsection (a)(2)(B) requires that a State 
     that utilizes subsection (a)(2) to escape federal preemption 
     must make a specific reference to this Act in any statute, 
     regulation, or other rule of law enacted or adopted after the 
     date of enactment of this Act. This provision is intended, in 
     part, to make it easier to track action by the various States 
     under this subsection for purposes of research.
       Section 102(b) provides a specific exclusion to the 
     technology neutrality provisions contained in subsection 
     (a)(2)(A)(ii) for procurement by a state, or any agency or 
     instrumentality thereof.
       Section 102(c) makes clear that subsection (a) cannot be 
     used by a State to circumvent this title or title II through 
     the imposition of nonelectronic delivery methods under 
     section 8(b)(2) of UETA. Any attempt by a State to use 
     8(b)(2) to violate the spirit of this Act should be treated 
     as effort to circumvent and thus be void.


                          SPECIFIC EXCLUSIONS

     Senate bill
       Section 5(d) of the Senate bill excludes from the 
     application of this section any statute, regulation or other 
     rule of law governing: (1) the Uniform Commercial Code as in 
     effect in any state, other than sections 1-107 and 1-206 and 
     Articles 2 and 2A; (2) premarital agreements, marriage, 
     adoption, divorce, or other matters of family law; (3) 
     documents of title which are filed of record with a 
     governmental unit until such time that a State or subdivision 
     thereof chooses to accept filings electronically; (4) 
     residential landlord-tenant relationships; and (5) the 
     Uniform Health-Care Decisions Act as in effect in a State.
     House amendment
       Section 103(a) of the House amendment excludes from the 
     application of section 101 any contract, agreement or record 
     to the extent that it is covered by: (1) a statute, 
     regulation or rule of law governing the creation

[[Page S5286]]

     and execution of wills, codicils, or testamentary trusts; (2) 
     a statute, regulation or other rule of law governing 
     adoption, divorce, or other matters of family law; (3) the 
     Uniform Commercial Code as in effect in any state, other than 
     sections 1-107 and -206 and Articles 2 and 2A; (4) any 
     requirement by a Federal regulatory agency or self-regulatory 
     agency that records be filed or maintained in a specified 
     standard or standards (except that nothing relieves any 
     Federal regulatory agency of its obligation under the 
     Government Paperwork Elimination Act, title XVII of Public 
     Law 105-277); (5) the Uniform Anatomical Gift Act; or (6) the 
     Uniform Health-Care Decisions Act.
       Section 103(b) excludes from the application of section 
     101: (1) any contract, agreement or record between a party 
     and a State agency if the State agency is not acting as a 
     market participant in or affecting interstate commerce; (2) 
     court orders or notices or official court documents 
     (including briefs, pleading and other writings) required to 
     be executed in connection with court proceedings; or (3) any 
     notice concerning: (A) the cancellation or termination of 
     utility services, (B) default, acceleration, repossession, 
     foreclosure or eviction, or the right to cure under a credit 
     agreement secured by, or a rental agreement for, a primary 
     residence of an individual or the cancellation or termination 
     of health insurance or benefits or life insurance benefits 
     (excluding annuities).
     Conference substitute
       The conference report adopts a substitute provision.
       Section 103(a) excludes from the application of section 101 
     any contract, agreement or record to the extent that it is 
     covered by: (1) a statute, regulation or rule of law 
     governing the creation and execution of wills, codicils, or 
     testamentary trusts; (2) a statute, regulation or other rule 
     of law governing adoption, divorce, or other matters of 
     family law; (3) the Uniform Commercial Code as in effect in 
     any state, other than sections 1-107 and 1-206 and Articles 2 
     and 2A.
       Section 103(b) excludes from the application of section 
     101: (1) court orders or notices or official court documents 
     (including briefs, pleading and other writings) required to 
     be executed in connection with court proceedings; or (2) any 
     notice of: (A) the cancellation or termination of utility 
     services, (B) default, acceleration, repossession, 
     foreclosure or eviction, or the right to cure under a credit 
     agreement secured by, or a rental agreement for, a primary 
     residence of an individual or the cancellation or termination 
     of health insurance or benefits or life insurance benefits 
     (excluding annuities).
       The exclusion pertaining to utility services applies to 
     essential consumer services including water, heat and power. 
     This provision does not apply to notices for other broadly 
     used important consumer services, such as telephone, cable 
     television, and Internet access services, etc. Electronic 
     cancellation or termination notices may be used in 
     association with those other services, assuming all of the 
     other elements of Section 101 are met. To clarify further, 
     with respect to Section 103(b), the statement that ``the 
     provisions of section 101 shall not apply to'' the listed 
     items means only that Section 101 may not be relied upon to 
     allow an electronic record or electronic signature to 
     suffice. Section 103(b) does not prohibit use of electronic 
     records or signatures, however. Whether such can be used is 
     left to other law.
       Section 103(c)(1) directs the Secretary of Commerce, acting 
     through the Assistant Secretary for Communication and 
     Information, to review the operation of the exclusions in 
     subsections (a) and (b) over a period of three years to 
     determine if such exclusions are necessary for the protection 
     of consumers. The Assistant Secretary shall submit the 
     findings of this review to Congress within three years of the 
     date of enactment of this Act.
       Section 103(c)(2) provides that a Federal regulatory 
     agency, with respect to matter within its jurisdiction, may 
     extend, after proper notice and comment and publishing a 
     finding that one or more of exceptions in subsections (a) or 
     (b) are no longer necessary for the protection of consumers 
     and eliminating such exceptions will not materially increase 
     the risk of harm to consumers, the application of section 101 
     to such exceptions.


             APPLICABILITY TO FEDERAL AND STATE GOVERNMENTS

     Senate bill
       The Senate bill contained no provision affecting the 
     authority of Federal regulatory agencies.
     House amendment
       The House amendment provided in Section 103 that the 
     authority of Federal regulatory agencies would be preserved 
     over records filed or maintained in a specific standard or 
     standards.
     Conference substitute
       The conference report adopts a substitute provision.
       Section 104(a) provides that subject to section 104(a)(2), 
     a Federal regulatory agency, a self-regulatory organization, 
     or State regulatory agency may specify standards or formats 
     for the filing of records with that agency or organization, 
     including requiring paper filings or records. While the 
     conference report preserves such authority to such agencies 
     or organizations, it is intended that use of such authority 
     is rarely exercised. Section 104(b)(1) provides that subject 
     to section 104(b)(2) and section 104(c), a Federal regulatory 
     agency or State regulatory agency that is responsible for 
     rulemaking under any other statute may interpret section 101 
     with respect to such statute through (1) the issuance of 
     regulations pursuant to a statute; or (2) to the extent such 
     agency is authorized by statute to issue orders or guidance, 
     the issuance of orders or guidance of general applicability 
     that are publicly available and published (in the Federal 
     Register in the case of an order or guidance issued by a 
     Federal regulatory agency).
       The conference report provides for more limited Federal and 
     State interpretative authority over other functions related 
     to records. This Act grants no additional or new rulemaking 
     authority to any Federal or State agency. The conference 
     report provides that if Federal or State regulators possessed 
     specific rulemaking authority under their organic statutes, 
     they could use that rulemaking authority to interpret section 
     101 subject to strict conditions. Those conditions include 
     determinations that such regulation, order or guidance: (1) 
     is consistent with section 101; and (2) does not add to the 
     requirements of the section. Additionally, the conference 
     report requires that any Federal agency show conclusively 
     that: (a) there is a substantial justification for the 
     regulation and the regulation is necessary to protect an 
     important public interest; (b) the methods used to carry out 
     that purpose are the least restrictive alternative consistent 
     with that purpose; (c) the methods are substantially 
     equivalent to the requirements imposed or records that are 
     not electronic records; and (d) such methods will not impose 
     new costs on the acceptance and use of electronic records. 
     The conference report requires strict technological 
     neutrality of any Federal or State regulation, order or 
     guidance. Absent such technological neutrality, any such 
     regulation, order or guidance is void.
       The conference report is designed to prevent Federal and 
     State Regulators from undermining the broad purpose of this 
     Act, to facilitate electronic commerce and electronic record 
     keeping. To ensure that the purposes of this Act are upheld, 
     Federal and State regulatory authority is strictly 
     circumscribed. It is expected that Courts reviewing 
     administrative actions will be rigorous in seeing that the 
     purpose of this Act, to ensure the widest use and 
     dissemination of electronic commerce and records are not 
     undermined.
       Subsection (b)(3)(A) provides authority to a Federal or 
     State regulatory agency to interpret section 101(d) in a 
     manner to specify specific performance standards to assure 
     accuracy, record integrity, and accessibility of records that 
     are required to be retained. Subsection (b)(3) extends this 
     authority to override the technology neutrality provision 
     contained in subsection (b)(2)C)(iii) but only if doing so 
     (1) serves an important governmental objective; and (2) is 
     substantially related to the achievement of that objective. 
     Further, subsection (b)(3)(A) does not allow a Federal or 
     State regulatory agency to require the use of a particular 
     type of software or hardware in order to comply with 
     101(d).
       Subsection (b)(3)(B) provides authority to a Federal or 
     State regulatory agency to interpret section 101(d) to 
     require retention of paper records but only if (1) there is a 
     compelling government interest relating to law enforcement or 
     national security for imposing such requirement, and (2) 
     imposing such requirement is essential to attaining such 
     interest. It is important to note that the test in subsection 
     (b)(3)(B) is higher and more stringent than in subsection 
     (b)(3)(A). This is intentional as it is an effort to impose 
     an extremely high barrier before a Federal or State 
     regulatory agency will revert back to requiring paper 
     records. However, this does not diminish the test contained 
     subsection (b)(3)(A). It, too, is intended to be an extremely 
     high barrier for a Federal or State regulatory agency to meet 
     before the technology neutrality provision is violated. It is 
     intended that use of either of these tests will be necessary 
     in only a very, very few instances. It is expected that 
     Federal and State agencies take all action and exhaust all 
     other avenues before exercising authority granted in 
     paragraph (3).
       Subsection (b)(4) exempts procurement by a Federal or State 
     government, or any agency or instrumentality thereof from the 
     technology neutral requirements of subsection (b)(2)(C)(iii).
       Subsection (c)(1) makes clear that nothing in subsection 
     (b), except subsection (b)(3)(B), allows a Federal or State 
     regulatory agency to impose or reimpose any requirement that 
     a record be in paper form.
       Subsection (c)(2) makes clear that nothing in subsection 
     (a) or (b) relieves any Federal regulatory agency of its 
     obligations under the Government Paperwork Elimination Act.
       Subsection (d)(1) provides authority to a Federal or State 
     regulatory agency to exempt without condition a specified 
     category or type of record from the consent provisions in 
     section 101(c) if such exemption is necessary to eliminate a 
     substantial burden on electronic commerce and will not 
     increase the material risk of harm to consumers. It is 
     intended that the test under subsection (d)(1) not be read 
     too limiting. There are vast numbers of instances when 
     section 101(c) may not be appropriate or necessary and should 
     be exempted by the appropriate regulator.
       Subsection (d)(2) requires the Securities and Exchange 
     Commission, within 30 days after date of enactment, to issue 
     a regulation or order pursuant to subsection (d)(1)

[[Page S5287]]

     exempting from the consent provision any records that are 
     required to be provided in order to allow advertising, sales 
     literature, or other information concerning a security issued 
     by an investment company that is registered under the 
     Investment Company Act of 1940, or concerning the issuer 
     thereof, to be excluded from the definition of a prospectus 
     under section 2(a)(10)(A) of the Securities Act of 1933.
       Section 104(e) provides that the Federal Communications 
     Commission shall not hold any contract for telecommunications 
     service or letter of agency for a preferred carrier change, 
     that otherwise complies with the Commission's rules, to be 
     legally ineffective, invalid or unenforceable solely because 
     an electronic records or electronic signature was used in its 
     formation or authorization.
       The Federal Communications Commission (FCC) has been very 
     slow, even reticent, to clearly authorize the use of an 
     Internet letter of agency for a consumer to conduct a 
     preferred carrier change. As a result of the Commission's 
     repeated failure to act on this matter, the conference 
     report provides specific direction to the Commission to 
     recognize Internet letters of agency for a preferred 
     carrier change.


                                STUDIES

     Senate bill
       Section 7 of the Senate bill directs each Federal agency 
     shall, not later than 6 months after the date of enactment of 
     this Act, to provide a report to the Director of the Office 
     of Management and Budget and the Secretary of Commerce 
     identifying any provision of law administered by such agency, 
     or any regulations issued by such agency and in effect on the 
     date of enactment of this Act, that may impose a barrier to 
     electronic transactions, or otherwise to the conduct of 
     commerce online or by electronic means, including barriers 
     imposed by a law or regulation directly or indirectly 
     requiring that signatures, or records of transactions, be 
     accomplished or retained in other than electronic form. In 
     its report, each agency shall identify the barriers among 
     those identified whose removal would require legislative 
     action, and shall indicate agency plans to undertake 
     regulatory action to remove such barriers among those 
     identified as are caused by regulations issued by the agency.
       Section 7(b) requires a report to Congress by The Secretary 
     of Commerce, in consultation with the Director of the Office 
     of Management and Budget within 18 months after the date of 
     enactment of this Act, and after the consultation required by 
     subsection (c) of this section, report to the Congress 
     concerning--
       (1) legislation needed to remove barriers to electronic 
     transactions or otherwise to the conduct of commerce online 
     or by electronic means; and
       (2) actions being taken by the Executive Branch and 
     individual Federal agencies to remove such barriers as are 
     caused by agency regulations or policies.
       7(c) provides that the Secretary of Commerce shall consult 
     with the General Services Administration, the National 
     Archives and Records Administration, and the Attorney General 
     concerning matters involving the authenticity of records, 
     their storage and retention, and their usability for law 
     enforcement purposes.
       7(d) If the report required by this section omits 
     recommendations for actions needed to fully remove identified 
     barriers to electronic transactions or to online or 
     electronic commerce, it shall include a finding or findings, 
     including substantial reasons therefor, that such removal is 
     impracticable or would be inconsistent with the 
     implementation or enforcement of applicable laws.
     House amendment
       Section 104 of the House amendment directs the Secretary of 
     Commerce (the Secretary), acting through the Assistant 
     Secretary for Communications and Information, to conduct an 
     inquiry regarding any State statute, regulation, or rule of 
     law enacted or adopted after enactment on the extent to which 
     such statute, regulation, or rule of law complies with 
     section 102(b). Section 104(b) requires the Secretary to 
     submit the report described in paragraph (a) at the 
     conclusion of the five year period.
       Section 104(c) requires the Secretary, within eighteen 
     months after the date of enactment, to conduct an inquiry 
     regarding the effectiveness of the delivery of electronic 
     records to consumers using electronic mail as compared with 
     the delivery of written records by the United States Postal 
     Service and private express mail services. The Secretary 
     shall submit a report to Congress regarding the results of 
     such inquiry at the conclusion of the eighteen month period.
     Conference substitute
       The conference adopts a substitute provision. Specifically, 
     the conference report retains subsection 7(a) of the Senate 
     amendment and redesignates it as section 104(a) of the 
     conference report. Further, the conference report includes a 
     new subsection (b) that requires the Secretary of Commerce 
     and the Federal Trade Commission, within one year after date 
     of enactment, to submit a report to the Congress analyzing: 
     (1) the benefits provided to consumers by the consumer access 
     test of the consent provision (section 101(c)(1)(C)(ii)); (2) 
     any burdens imposed on electronic commerce by the provision, 
     whether the benefits outweigh the burdens; (3) whether the 
     absence of such procedure would increase consumer fraud; and 
     (4) any suggestions for revising the provision. In conducting 
     the evaluation, the Secretary of Commerce and FTC shall 
     solicit the comments of the public, consumer representatives, 
     and electronic commerce businesses.


                              DEFINITIONS

     Senate bill
       Section 4 sets forth the definitions of terms used in the 
     bill: `electronic;' `electronic agent;' `electronic record;' 
     `electronic signature;' `governmental agency;' `record;' 
     `transaction;' and `Uniform Electronic Transaction Act.'
     House amendment
       Section 104 of the House amendment defines the following 
     terms: `electronic record;' `electronic signature;' 
     `electronic;' `electronic agent;' `record;' `Federal 
     regulatory agency;' and `self-regulatory agency.'
     Conference substitute
       The conference report adopts a substitute provision 
     adopting definitions for the following terms: `consumer;' 
     `electronic;' `electronic agent;' `electronic record;' 
     `electronic signature;' `Federal regulatory agency;' 
     `information;' `person;' `record;' and `transaction.'
       To clarify further the definition of ``consumer,'' the 
     definition is intended to be consistent with traditional 
     interpretations of such definitions. This means that the 
     party dealing with the consumer may rely on the consumer's 
     intended use for the product or service as indicated when the 
     transaction is entered into. Thus if an individual indicates 
     at the time of the transaction that the online purchase of a 
     heater is primarily for personal family or household use, 
     then that individual is a consumer; the fact that the 
     individual may later dedicate the actual use of the heater to 
     the individual's business is not relevant. The opposite is 
     also true: if an individual indicates that the intended use 
     is primarily for business purposes, then that individual 
     is not a consumer even if the individual later uses the 
     heater primarily for personal or family purposes.


                            EFFECTIVE DATES

     Senate bill
       The Senate bill contained no provision.
     House amendment
       The House amendment contained no provision.
     Conference substitute
       The conference report creates a general delayed effective 
     date for the bill, and creates specific delayed effective 
     dates for certain provisions of the bill. Subsection (a) 
     establishes that, except as provided in subsections (b), the 
     provisions of the bill are effective October 1, 2000. 
     Subsection (b) delays the effective date of the records 
     retention provision until March 1, 2001 unless an agency has 
     initiated, announced, proposed but not completed an action 
     under subsection 104(b)(3), in which case it would be 
     extended until June 1, 2001. Subsection (b)(2) delays the 
     effective date of this Act by one year with regards to any 
     transaction involving a loan guarantee or loan guarantee 
     commitment made by the United States Government. The one year 
     delay was granted to permit the federal government time to 
     institute safeguards necessary to protect taxpayers from risk 
     of default on loans guaranteed by the federal government.
       Subsection (d) delays the effective date of section 101(c) 
     for any records provided or made available to a consumer 
     pursuant to title IV of the High Education Act of 1965 until 
     the Secretary of Education publishes revised promissory notes 
     under section 432(m) of such Act or one year after the date 
     of enactment, whichever is earlier.


                          TRANSFERABLE RECORDS

     Senate bill
       The Senate bill contained no provision.
     House amendment
       The House amendment contained no provision.
     Conference substitute
       The conference report adopts a new provision in recognition 
     of the need to establish a uniform national standard for the 
     creation, recognition, and enforcement of electronic 
     negotiable instruments. The development of a fully-electronic 
     system of negotiable instruments such as promissory notes is 
     one that will produce significant reductions in transaction 
     costs. This provision, which is based in part on Section 16 
     of the Uniform Electronic Transactions Act, sets forth a 
     criteria-based approach to the recognition of electronic 
     negotiable instruments, referred to as `transferable 
     records' in this section and in UETA. It is intended that 
     this approach create a legal framework within which 
     companies can develop new technologies that fulfill all of 
     the essential requirements of negotiability in an 
     electronic environment, and in a manner that protects the 
     interests of consumers.
       The conference report notes that the official Comments to 
     section 16 of UETA, as adopted by the National Conference of 
     Commissioners on Uniform State Laws, provide a valuable 
     explanation of the origins and purposes of this section, as 
     well as the meaning of particular provisions.
       The conference report notes that, pursuant to sections 3(c) 
     and 7(d) of the UETA, an electronic signature satisfies any 
     signature requirement under Section 16 of the UETA. It is 
     intended that an electronic signature shall satisfy any 
     signature requirement under this provision, as well. The 
     conference report further notes that the reference in

[[Page S5288]]

     section 201(a)(1)(C) to loans secured by real property' 
     includes all forms of real property, including single-family 
     and multi-family housing.


 TREATMENT OF ELECTRONIC SIGNATURES IN INTERSTATE AND FOREIGN COMMERCE

     Senate bill
       Section 6 of the Senate bill sets out the principles that 
     the United States Government should follow, to the extent 
     practicable, in its international negotiations on electronic 
     commerce as a means to facilitate cross-border electronic 
     transactions.
       Section 6 lists the principles as follows: (1) advocates 
     the removal of paper-based obstacles to electronic 
     transactions. This can be accomplished by taking into account 
     the enabling provisions of the Model Law on Electronic 
     Commerce adopted by the United Nations Committee on 
     International Trade Law (UNCITRAL) in 1996. Paragraph (2) 
     permits that parties to a transaction shall have the 
     opportunity to choose the technology of their choice when 
     entering into an electronic transaction. Paragraph (3) 
     permits parties to a transaction the opportunity to prove in 
     a court or other proceeding that their authentication 
     approach and transactions are valid. Paragraph (4) adopts a 
     nondiscriminatory approach to electronic signatures.
     House amendment
       Section 201(a) directs the Secretary of Commerce, acting 
     through the Assistant Secretary for Communications and 
     Information, to conduct an annual inquiry identifying: (1) 
     any domestic or foreign impediments to commerce in electronic 
     signature products and services and the manner and extent to 
     which such impediments inhibit the development of interstate 
     and foreign commerce; (2) constraints imposed by foreign 
     nations or international organizations that constitute 
     barriers to providers of electronic signature products and 
     services; and (3) the degree to which other nations and 
     international organizations are complying with the principles 
     in section 201(b)(2).
       Under subsection (a)(2), the Secretary is required to 
     report to Congress the findings of each inquiry 90 days after 
     completion of such inquiry.
       Section 201(b) directs the Secretary of Commerce, acting 
     through the Assistant Secretary for Communications and 
     Information, to promote the acceptance and use of electronic 
     signatures on an international basis in accordance with 
     section 101 of the bill and with designated principles. In 
     addition, the Secretary of Commerce is directed to take all 
     actions to eliminate or reduce impediments to commerce in 
     electronic signatures, including those resulting from the 
     inquiries required pursuant to subsection (a).
       The designated principles are as follows: free-markets and 
     self-regulation, rather than government standard-setting or 
     rules, should govern the development and use of electronic 
     signatures and electronic records; neutrality and 
     nondiscrimination should be observed among providers of and 
     technologies for electronic records and electronic 
     signatures; parties to a transaction should be allowed to 
     establish requirements regarding the use of electronic 
     records and electronic signatures acceptable to the parties; 
     parties to a transaction should be permitted to determine the 
     appropriate authentication technologies and implementation 
     for their transactions with the assurance that the technology 
     and implementation will be recognized and enforced; the 
     parties should have the opportunity to prove in court that 
     their authentication approaches and transactions are valid; 
     electronic records and signatures in a form acceptable to the 
     parties should not be denied legal effect, validity, or 
     enforceability because they are not in writing; de jure or de 
     facto imposition of electronic signature and electronic 
     record standards on the private sector through foreign 
     adoption of regulations or policies should be avoided; paper-
     based obstacles to electronic transactions should be removed.
       Section 201(c) requires the Secretary of Commerce to 
     consult with users and providers of electronic signatures and 
     products and other interested parties in carrying out actions 
     under this section.
       Section 201(d) clarifies that nothing requires the 
     Secretary or Assistant Secretary to take any action that 
     would adversely affect the privacy of consumers.
       Section 201(e) provides that the definitions in section 104 
     apply to this title.
     Conference substitute
       The House recedes to the Senate with an amendment. Section 
     301(a)(1) directs the Secretary of Commerce to promote the 
     acceptance and use of electronic signatures on an 
     international basis in accordance with section 101 of the 
     bill and with the set principles listed in subsection (a)(2). 
     In addition, the Secretary of Commerce is directed to take 
     all actions to eliminate or reduce impediments to commerce in 
     electronic signatures.
       Section 301(a)(2) lists the principles as follows: (1) 
     Removal of paper-based obstacles to electronic transactions. 
     This can be accomplished by taking into account the enabling 
     provisions of the Model Law on Electronic Commerce adopted by 
     the United Nations Committee on International Trade Law 
     (UNCITRAL) in 1996; (2) Parties to a transaction shall have 
     the opportunity to choose the technology of their choice when 
     entering into an electronic transaction. Parties to a 
     commercial transaction should be able to chose the 
     appropriate authentication technologies and implementation 
     models for their transactions. Unnecessary regulation of 
     commercial transactions distorts the development and 
     efficient operation of markets, including electronic 
     markets. Moreover, the rapid development of the electronic 
     marketplace is resulting in new business models and 
     technological innovations. This is an evolving process. 
     Therefore, government attempts to regulate may impede the 
     development of newer alternative technologies; (3) Parties 
     to a transaction the opportunity to prove in a court or 
     other proceeding that their authentication approach and 
     transactions are valid. Parties should have the 
     opportunity to prove in court that the authentication 
     methods that they select are valid and reliable; and (4) 
     Adoption of a nondiscriminatory approach to electronic 
     signatures and authentication methods from other 
     jurisdictions.
       Section 301(c) directs the Secretary to consult with users 
     and providers of electronic signature products and services 
     and other interested parties. Section 301(d) applies the 
     definitions of `electronic signature' and `electronic record' 
     in section 107 to this title.
       Increasingly, online transactions are not just interstate 
     but international in nature and this creates a clear need for 
     international recognition of electronic signatures and 
     records that will not create barriers to international trade. 
     Title III directs the Secretary of Commerce to take an active 
     role in bilateral and multilateral talks to promote the use 
     and acceptance of electronic signatures and electronic 
     records worldwide. It is intended that the Secretary promote 
     the principles contained in this Act internationally. 
     However, it is possible that some foreign nations may choose 
     to adopt their own approach to the use and acceptance of 
     electronic signatures and electronic records. In such cases, 
     the Secretary should encourage those nations to provide legal 
     recognition to contracts and transactions that may fall 
     outside of the scope of the national law and encourage those 
     nations to recognize the rights of parties to establish their 
     own terms and conditions for the use and acceptance of 
     electronic signatures and electronic records.
       There is particular concern about international 
     developments that seek to favor specific technologies of 
     processes for generating electronic signatures and electronic 
     records. Failure to recognize multiple technologies may 
     create potential barriers to trade and stunt the development 
     of new and innovative technologies.
       Unfortunately, international developments on recognizing 
     electronic signatures are troubling. The German Digital 
     Signature Law of July 1997 runs counter to many of the widely 
     accepted principles of electronic signature law in the United 
     States. For example, the German law provides legal 
     recognition only to signatures generated using digital 
     signature technology, establishes licensing for certificate 
     authorities, and sets a substantial role for the government 
     in establishing technical standards. Further, a position 
     paper on international recognition of electronic signatures 
     released by the German government (International Legal 
     Recognition of Digital Signatures, August 28, 1998) seeks to 
     apply these principles internationally. This policy statement 
     reemphasizes the principle that uniform security standards 
     are necessary for all uses of digital signatures regardless 
     of their use, supports mutual recognition of digital 
     signatures only to those nations which have a similar 
     regulatory structure for certification authority, and fails 
     to provide legal effect to electronic signatures generated by 
     other technologies.
       The European Community is considering a framework for the 
     use and acceptance of electronic signatures for its member 
     countries. `Directive 1999/93/EC of the European Parliament 
     and of the Council of 13 December 1999 on a Community 
     Framework for electronic signatures' lays out the European 
     Community's approach to electronic signature legislation. 
     Of particular interest is Article 7, International 
     Aspects, which recognizes the legal validity of digital 
     certificates issued in a non-European Community country. 
     While international recognition of electronic signatures 
     is important, there is concern that this approach will not 
     recognize non-certificate based electronic signatures, 
     such as those based on biometric technologies. The 
     conference report notes that negotiations with the 
     European Union on electronic signatures is a top priority.

                 Commission on Child Online Protection


                       authority to accept gifts

     Senate bill
       The Senate bill contains no similar provision.
     House amendment
       The House amendment contains no similar provision.
     Conference substitute
       The conference report adopts a provision to amend section 
     1405 of the Child Online Protection Act by adding a new 
     subsection (h), which allows the Commission on Online Child 
     Protection to accept, use and dispose of gifts, bequests or 
     devises of services or property for the purpose of aiding or 
     facilitating the work of the Commission.

  Mr. WARNER. Mr. President, I want to offer my strong support for the 
Electronic Signatures in Global and National Commerce Act. This 
legislation removes legal barriers to electronic commerce by 
establishing important legal standards for electronic contracts and 
signatures.

[[Page S5289]]

  With the passage of this important legislation, businesses will have 
the legal certainty that they require and consumers will have the 
assurance of safety and security that they need. The measure represents 
a balanced approach. It ensures that protections in the digital world 
equal those in the paper world.
  Mr. President, E-commerce offers tremendous benefits for businesses 
and consumers in terms of efficiency, choice, convenience, and lower 
costs. The measure will ensure the continued expansion of electronic 
commerce, the roots and future of which lie in Virginia. It will take 
electronic business-to-business and business-to-consumer commerce to 
the next level.
  Mr. BENNETT. Mr. President, I rise to praise the hard work, 
commitment and diligence of Senator Spencer Abraham of Michigan. He 
navigated truly treacherous legislative and political waters to bring 
this legislation to shore. Were it not for his steadfast guidance of 
this legislation, there would be no E-Sign bill before us today. From 
the outset, Senator Abraham had the vision and initiative to call to 
life a law which will allow American consumers and businesses to do 
transactions over the Internet with a greater confidence in their legal 
rights and responsibilities. And let me say this to my colleague, 
Senator Abraham, this bill is much like the Internet in that almost 
instantaneously all kinds of people will come out of the woodwork to 
claim credit for your great achievement. Savor it, because those of us 
who worked by your side know well that the credit lies with you.
  Throughout the conference I kept one goal in mind. We must make every 
effort to have a digital signature be equal to a paper signature both 
in the ease of use and in the eyes of the law. And while we did not 
fully succeed in that regard, this legislation is clearly a worthwhile 
step in the right direction and I intend to support its passage.
  Mr. President, let me take one more moment to express, generally, 
some of my concerns about provisions that were added in the name of 
providing greater consumer protection and which were outside of the 
scope of the bills passed in the House and the Senate. I fear that the 
lack of clarity of several terms and phrases which were added in the 
conference and which are strewn throughout the bill will create the 
opportunity for misunderstandings and lawsuits. Greater consultation 
among the conferees could have resolved these issues, because I know 
that we all share the same hopes for the success of this legislation. I 
sincerely hope that my concerns about the use of these terms is 
misplaced and that they will not come back to haunt us.
  Finally, Mr. President, pursuant to the Government Paperwork 
Elimination Act passed by the previous Congress, the Office of 
Management and Budget has adopted regulations to permit individuals to 
obtain, submit and sign government forms electronically. These 
regulations direct Federal agencies to recognize that different 
security approaches offer varying levels of assurance in an electronic 
environment and that deciding which to use in an application depends 
first upon finding a balance between the risks associated with the 
loss, misuse or compromise of the information, and the benefits, costs 
and effort associated with deploying and managing the increasingly 
secure methods to mitigate those risks.
  The OMB regulations recognize that among the various technical 
approaches, in an ascending level of assurance, are (1) ``shared 
secrets'' methods (e.g., personal identification numbers or passwords), 
(2) digitized signatures or biometric means of identification, such as 
fingerprints, retinal patterns and voice recognition, and (3) 
cryptographic digital signatures, which provide the greatest assurance. 
Combinations of approaches (e.g., digital signatures with bio-metrics) 
are also possible and may provide even higher levels of assurance. The 
technical competence and experience of the service provider should be 
of paramount concern as we step into this brave new world. A positive 
first step in this regard is the General Services Administration's 
development of the ACES, or Access Certification for Electronic 
Services, Program for all federal agencies.
  Mr. President, in developing this legislation, we recognized that 
certain technologies are more secure than others and that consumers and 
businesses must, just as the government, select and weigh which 
technology is most appropriate for their particular needs taking into 
account the importance of the transaction and its corresponding need 
for assurance.
  Mr. ABRAHAM. Mr. President, I ask for the yeas and nays on the 
conference report accompanying S. 761.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to the conference report. The clerk will 
call the roll.
  The legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from Kentucky (Mr. Bunning), 
the Senator from Colorado (Mr. Campbell), the Senator from Utah (Mr. 
Hatch), the Senator from Oklahoma (Mr. Inhofe), the Senator from 
Kentucky (Mr. McConnell), the Senator from Wyoming (Mr. Thomas), and 
the Senator from Virginia (Mr. Warner) are necessarily absent.
  I further announce that if present and voting, the Senator from 
Kentucky (Mr. Bunning), the Senator from Kentucky (Mr. McConnell), the 
Senator from Utah (Mr. Hatch), and the Senator from Colorado (Mr. 
Campbell) would each vote ``aye.''
  Mr. REID. I announce that the Senator from California (Mrs. Boxer), 
the Senator from North Dakota (Mr. Conrad), the Senator from North 
Dakota (Mr. Dorgan), the Senator from Iowa (Mr. Harkin), the Senator 
from Vermont (Mr. Leahy), and the Senator from Virginia (Mr. Robb) are 
necessarily absent.
  I further announce that, if present and voting, the Senator from 
Vermont (Mr. Leahy) and the Senator from Iowa (Mr. Harkin) would each 
vote ``aye.''
  The PRESIDING OFFICER (Mr. Hagel). Are there any other Senators in 
the Chamber who desire to vote?
  The result was announced--yeas 87, nays 0, as follows:

                      [Rollcall Vote No. 133 Leg.]

                                YEAS--87

     Abraham
     Akaka
     Allard
     Ashcroft
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Breaux
     Brownback
     Bryan
     Burns
     Byrd
     Chafee, L.
     Cleland
     Cochran
     Collins
     Coverdell
     Craig
     Crapo
     Daschle
     DeWine
     Dodd
     Domenici
     Durbin
     Edwards
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Gorton
     Graham
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Helms
     Hollings
     Hutchinson
     Hutchison
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerrey
     Kerry
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     Mack
     McCain
     Mikulski
     Moynihan
     Murkowski
     Murray
     Nickles
     Reed
     Reid
     Roberts
     Rockefeller
     Roth
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stevens
     Thompson
     Thurmond
     Torricelli
     Voinovich
     Wellstone
     Wyden

                             NOT VOTING--13

     Boxer
     Bunning
     Campbell
     Conrad
     Dorgan
     Harkin
     Hatch
     Inhofe
     Leahy
     McConnell
     Robb
     Thomas
     Warner
  The conference report was agreed to.
  Mr. LOTT. Mr. President, today the Senate has taken a momentous step 
in promoting and facilitating the growth of electronic commerce with 
the passage of the conference report to S. 761--the Electronic 
Signatures in Global and National Commerce Act.
  It was a long and difficult road to get to this point, following the 
bill's introduction in the Senate last March by my colleague and 
champion of E-signatures, Senator Abraham. Many roadblocks had to be 
overcome along the way. In the end, many compromises were agreed to. 
This bill could have been done months ago; however, some wanted to make 
this a partisan issue. I am personally very pleased though that the 
sustained efforts of Congress resulted in a conference report supported 
by a meaningful majority of conferees, and by a majority of the 
business world.
  S. 761 will establish legal certainty and validity for electronic 
signatures and electronic records. When engaging in business online, 
consumers and companies should feel secure and confident that their 
contracts and agreements will be honored. This bill recognizes and 
addresses those real needs now,

[[Page S5290]]

rather than waiting for all 50 States to adopt uniform laws. S. 761 
will provide the basic foundation, or the rules of the road, for the 
future of electronic commerce in America. It will foster the continued 
expansion of electronic commerce. More importantly, it will empower 
consumers to take part in a vibrant segment of our economy. It will 
afford consumers from all across America the real opportunity, if they 
so choose, to take advantage of electronic commerce. This, to me, is 
the crux of this legislation. The ability of our citizens in all 50 
States to improve the quality of their lives. S. 761 provides that 
ability.
  Some have expressed concern that this measure places a higher 
standard and unnecessary burdens on the on-line world than those in 
effect for the off-line world. I hope it does not. I believe a good-
faith effort was made to provide the flexibility necessary for those 
with that great entrepreneurial spirit and imaginative ability to 
advance the Internet and electronic commerce. If, over time, 
bureaucracy does indeed impede the bill's intent, I expect that 
Congress will again assume responsibility and take corrective action.
  The participation of several Members of Congress was integral to this 
bill's enactment. They include the chairmen of both the House and 
Senate Commerce Committees, Chairman Bliley and Chairman McCain, 
Chairman Gramm of the Senate Banking Committee, and Chairman Hatch of 
the Senate Judiciary Committee. I extend my thanks to them and to all 
of the members of the conference for their attentiveness and commitment 
to this important issue.
  I also want to take a few moments to express my special appreciation 
to my colleague and good friend, Senator Abraham. Senator Abraham 
recognized early on the extreme importance of electronic signatures. It 
was his initiative that led to the 105th Congress' enactment of the 
Government Paperwork Elimination Act, a significant first step toward 
the eventual broad use and acceptance of electronic signatures. Senator 
Abraham's continued stewardship, vision, and tireless efforts have led 
to the next logical step of now affording secure and accessible 
opportunities in electronic commerce for the private sector and 
millions of consumers. I believe no other Senator worked as hard on, or 
knows as much about, this issue as Senator Abraham. Without his hard 
work, keen judgment, and persistence, I do not believe we would be 
voting on this conference report today. Senator Abraham is to be 
commended for his leadership in this area, and I look forward to 
working with him on other important technology issues facing Congress.
  It goes without saying that Congress could not operate without the 
dedicated efforts of staff. I want to identify those Senate staffers 
who worked hard to prepare this legislation for consideration: Renee 
Bennett, Moses Boyd, Jeanne Bumpus, Cesar Conda, Robert Cresanti, Makan 
Delrahim, Geoff Gray, Martin Gruenberg, Carole Grunberg, Dave Hoppe, 
Jack Howard, Jim Hippe, Kevin Kolevar, Chase Hutto, Jim Hyland, Julie 
Katzman, Maureen McLaughlin, Paul Margie, Mike Rawson, Dena Ellis 
Rochkind, Lisa Rosenberg and Jim Sartucci, as well as my former 
Congressional Fellow, Steven Apicella. I thank them all.
  Electronic signatures is an innovative technology whose time has 
come. S. 761 will remove barriers to their use in a timely and useful 
manner. S. 761 will make it easier for millions of Americans to use 
electronic commerce. S. 761 will help stimulate our nation's economy. 
And S. 761 will preserve America's leadership in the global 
marketplace. I am proud that the 106th Congress has taken this action.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. ABRAHAM. Mr. President, I thank my colleagues on both sides of 
the aisle for their work on the legislation which has just passed. This 
is an extraordinarily important bill which will essentially open up 
opportunities in e-commerce that have previously not been existent for 
Americans. It will be a tremendous incentive to our economy. I express 
to all my colleagues my appreciation for their hard work on the 
legislation. It is a significant accomplishment for the Congress.
  The PRESIDING OFFICER. The Senator from Nevada.

                          ____________________