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Electronic
Signatures in Global and National Commerce Act
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| S.761 |
first july 2000
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One Hundred Sixth Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Monday,
the twenty-fourth day of January, two thousand
An Act
To facilitate the use of electronic
records and signatures in interstate or foreign commerce.
Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Electronic Signatures
in Global and National Commerce Act'.
TITLE I-ELECTRONIC RECORDS AND SIGNATURES
IN COMMERCE
SEC. 101.GENERAL RULE OF VALIDITY.
(a) IN GENERAL- Notwithstanding any statute, regulation, or
other rule of law (other than this title and title II), 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.
(b) PRESERVATION OF RIGHTS AND OBLIGATIONS- This title does
not--
(1) limit, alter, or otherwise affect any requirement 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 a requirement that contracts or
other records be written, signed, or in nonelectronic form;
or
(2) require any person to agree to use or accept electronic
records or electronic signatures, other than a governmental
agency with respect to a record other than a contract to
which it is a party.
(c) CONSUMER DISCLOSURES-
(1) CONSENT TO ELECTRONIC RECORDS- Notwithstanding subsection
(a), if a statute, regulation, or other rule of law requires
that information relating to a transaction or transactions
in or affecting interstate or foreign commerce be provided
or made available to a consumer in writing, the use of an
electronic record to provide or make available (whichever
is required) such information satisfies the requirement
that such information be in writing if--
(A) the consumer has affirmatively consented to such
use and has not withdrawn such consent;
(B) the consumer, prior to consenting, is provided
with a clear and conspicuous statement--
(i) informing the consumer of (I) any right or
option of the consumer to have the record provided
or made available on paper or in nonelectronic form,
and (II) the right of the consumer to withdraw the
consent to have the record provided or made available
in an electronic form and of any conditions, consequences
(which may include termination of the parties' relationship),
or fees in the event of such withdrawal;
(ii) informing the consumer of whether the consent
applies (I) only to the particular transaction which
gave rise to the obligation to provide the record,
or (II) to identified categories of records that
may be provided or made available during the course
of the parties' relationship;
(iii) describing the procedures the consumer must
use to withdraw consent as provided in clause (i)
and to update information needed to contact the
consumer electronically; and
(iv) informing the consumer (I) how, after the
consent, the consumer may, upon request, obtain
a paper copy of an electronic record, and (II) whether
any fee will be charged for such copy;
(C) the consumer--
(i) prior to consenting, is provided with a statement
of the hardware and software requirements for access
to and retention of the electronic records; and
(ii) consents electronically, or confirms his or
her consent electronically, in a manner that reasonably
demonstrates that the consumer can access information
in the electronic form that will be used to provide
the information that is the subject of the consent;
and
(D) after the consent of a consumer in accordance with
subparagraph (A), 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--
(i) provides the consumer with a statement of (I)
the revised hardware and software requirements for
access to and retention of the electronic records,
and (II) the right to withdraw consent without the
imposition of any fees for such withdrawal and without
the imposition of any condition or consequence that
was not disclosed under subparagraph (B)(i); and
(ii) again complies with subparagraph (C).
(2) OTHER RIGHTS-
(A) PRESERVATION OF CONSUMER PROTECTIONS- 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.
(B) VERIFICATION OR ACKNOWLEDGMENT- 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).
(3) EFFECT OF FAILURE TO OBTAIN ELECTRONIC CONSENT OR CONFIRMATION
OF CONSENT- The legal effectiveness, validity, or enforceability
of any contract executed by a consumer shall not be denied
solely because of the failure to obtain electronic consent
or confirmation of consent by that consumer in accordance
with paragraph (1)(C)(ii).
(4) PROSPECTIVE EFFECT- 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.
(5) PRIOR CONSENT- 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.
(6) ORAL COMMUNICATIONS- 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.
(d) RETENTION OF CONTRACTS AND RECORDS-
(1) ACCURACY AND ACCESSIBILITY- If a statute, regulation,
or other rule of law requires that a contract or other record
relating to a transaction in or affecting interstate or
foreign commerce be retained, that requirement is met by
retaining an electronic record of the information in the
contract or other record that--
(A) accurately reflects the information set forth in
the contract or other record; and
(B) remains accessible to all persons who are entitled
to access by statute, regulation, or rule of law, for
the period required by such statute, regulation, or
rule of law, in a form that is capable of being accurately
reproduced for later reference, whether by transmission,
printing, or otherwise.
(2) EXCEPTION- A requirement to retain a contract or other
record in accordance with paragraph (1) does not apply to
any information whose sole purpose is to enable the contract
or other record to be sent, communicated, or received.
(3) ORIGINALS- If a statute, regulation, or other rule
of law requires a contract or other record relating to a
transaction in or affecting interstate or foreign commerce
to be provided, available, or retained in its original form,
or provides consequences if the contract or other record
is not provided, available, or retained in its original
form, that statute, regulation, or rule of law is satisfied
by an electronic record that complies with paragraph (1).
(4) CHECKS- If a statute, regulation, or other rule of
law requires the retention of a check, that requirement
is satisfied by retention of an electronic record of the
information on the front and back of the check in accordance
with paragraph (1).
(e) ACCURACY AND ABILITY TO RETAIN CONTRACTS AND OTHER RECORDS-
Notwithstanding subsection (a), if a statute, regulation, or
other rule of law requires that a contract or other record relating
to a transaction in or affecting interstate or foreign commerce
be in writing, the legal effect, validity, or enforceability
of an electronic record of such contract or other record may
be denied if such electronic record is not in a form that is
capable of being retained and accurately reproduced for later
reference by all parties or persons who are entitled to retain
the contract or other record.
(f) PROXIMITY- Nothing in this title affects the proximity
required by 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.
(g) NOTARIZATION AND ACKNOWLEDGMENT- If a statute, regulation,
or other rule of law requires a signature or record relating
to a transaction in or affecting interstate or foreign commerce
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.
(h) ELECTRONIC AGENTS- A contract or other record relating
to a transaction in or affecting interstate or foreign commerce
may not be denied legal effect, validity, or enforceability
solely because its formation, creation, or delivery involved
the action of one or more electronic agents so long as the action
of any such electronic agent is legally attributable to the
person to be bound.
(i) INSURANCE- It is the specific intent of the Congress that
this title and title II apply to the business of insurance.
(j) INSURANCE AGENTS AND BROKERS- 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 may
not be held liable for any deficiency in the electronic procedures
agreed to by the parties under that contract 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.
SEC. 102. EXEMPTION TO PREEMPTION.
(a) IN GENERAL- A State statute, regulation, or other rule
of law may modify, limit, or supersede the provisions of section
101 with respect to State law only if such statute, regulation,
or rule of law--
(1) constitutes an enactment or adoption of the Uniform
Electronic Transactions Act as approved and recommended
for enactment in all the States by the National Conference
of Commissioners on Uniform State Laws in 1999, except that
any exception to the scope of such Act enacted by a State
under section 3(b)(4) of such Act shall be preempted to
the extent such exception is inconsistent with this title
or title II, or would not be permitted under paragraph (2)(A)(ii)
of this subsection; or
(2)(A) specifies the alternative procedures or requirements
for the use or acceptance (or both) of electronic records
or electronic signatures to establish the legal effect,
validity, or enforceability of contracts or other records,
if--
(i) such alternative procedures or requirements are
consistent with this title and title II; and
(ii) such alternative procedures or requirements do
not require, or accord greater legal status or effect
to, the implementation or application of a specific
technology or technical specification for performing
the functions of creating, storing, generating, receiving,
communicating, or authenticating electronic records
or electronic signatures; and
(B) if enacted or adopted after the date of the enactment
of this Act, makes specific reference to this Act.
(b) EXCEPTIONS FOR ACTIONS BY STATES AS MARKET PARTICIPANTS-
Subsection (a)(2)(A)(ii) shall not apply to the statutes, regulations,
or other rules of law governing procurement by any State, or
any agency or instrumentality thereof.
(c) PREVENTION OF CIRCUMVENTION- Subsection (a) does not permit
a State to circumvent this title or title II through the imposition
of nonelectronic delivery methods under section 8(b)(2) of the
Uniform Electronic Transactions Act.
SEC. 103. SPECIFIC EXCEPTIONS.
(a) EXCEPTED REQUIREMENTS- The provisions of section 101 shall
not apply to a contract or other record to the extent it is
governed by--
(1) a statute, regulation, or other rule of law governing
the creation and execution of wills, codicils, or testamentary
trusts;
(2) a State statute, regulation, or other rule of law governing
adoption, divorce, or other matters of family law; or
(3) the Uniform Commercial Code, as in effect in any State,
other than sections 1-107 and 1-206 and Articles 2 and 2A.
(b) ADDITIONAL EXCEPTIONS- The provisions of section 101 shall
not apply to--
(1) court orders or notices, or official court documents
(including briefs, pleadings, and other writings) required
to be executed in connection with court proceedings;
(2) any notice of--
(A) the cancellation or termination of utility services
(including water, heat, and power);
(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;
(C) the cancellation or termination of health insurance
or benefits or life insurance benefits (excluding annuities);
or
(D) recall of a product, or material failure of a product,
that risks endangering health or safety; or
(3) any document required to accompany any transportation
or handling of hazardous materials, pesticides, or other
toxic or dangerous materials.
(c) REVIEW OF EXCEPTIONS-
(1) EVALUATION REQUIRED- The Secretary of Commerce, acting
through the Assistant Secretary for Communications and Information,
shall review the operation of the exceptions in subsections
(a) and (b) to evaluate, over a period of 3 years, whether
such exceptions continue to be necessary for the protection
of consumers. Within 3 years after the date of enactment
of this Act, the Assistant Secretary shall submit a report
to the Congress on the results of such evaluation.
(2) DETERMINATIONS- If a Federal regulatory agency, with
respect to matter within its jurisdiction, determines after
notice and an opportunity for public comment, and publishes
a finding, that one or more such exceptions are no longer
necessary for the protection of consumers and eliminating
such exceptions will not increase the material risk of harm
to consumers, such agency may extend the application of
section 101 to the exceptions identified in such finding.
SEC. 104. APPLICABILITY TO FEDERAL AND STATE GOVERNMENTS.
(a) FILING AND ACCESS REQUIREMENTS- Subject to subsection (c)(2),
nothing in this title limits or supersedes any requirement by
a Federal regulatory agency, self-regulatory organization, or
State regulatory agency that records be filed with such agency
or organization in accordance with specified standards or formats.
(b) PRESERVATION OF EXISTING RULEMAKING AUTHORITY-
(1) USE OF AUTHORITY TO INTERPRET- Subject to paragraph
(2) and subsection (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--
(A) the issuance of regulations pursuant to a statute;
or
(B) 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).
This paragraph does not grant any Federal regulatory agency
or State regulatory agency authority to issue regulations,
orders, or guidance pursuant to any statute that does not
authorize such issuance.
(2) LIMITATIONS ON INTERPRETATION AUTHORITY- Notwithstanding
paragraph (1), a Federal regulatory agency shall not adopt
any regulation, order, or guidance described in paragraph
(1), and a State regulatory agency is preempted by section
101 from adopting any regulation, order, or guidance described
in paragraph (1), unless--
(A) such regulation, order, or guidance is consistent
with section 101;
(B) such regulation, order, or guidance does not add
to the requirements of such section; and
(C) such agency finds, in connection with the issuance
of such regulation, order, or guidance, that--
(i) there is a substantial justification for the
regulation, order, or guidance;
(ii) the methods selected to carry out that purpose--
(I) are substantially equivalent to the requirements
imposed on records that are not electronic records;
and
(II) will not impose unreasonable costs on
the acceptance and use of electronic records;
and
(iii) the methods selected to carry out that purpose
do not require, or accord greater legal status or
effect to, the implementation or application of
a specific technology or technical specification
for performing the functions of creating, storing,
generating, receiving, communicating, or authenticating
electronic records or electronic signatures.
(3) PERFORMANCE STANDARDS-
(A) ACCURACY, RECORD INTEGRITY, ACCESSIBILITY- Notwithstanding
paragraph (2)(C)(iii), a Federal regulatory agency or
State regulatory agency may interpret section 101(d)
to specify performance standards to assure accuracy,
record integrity, and accessibility of records that
are required to be retained. Such performance standards
may be specified in a manner that imposes a requirement
in violation of paragraph (2)(C)(iii) if the requirement
(i) serves an important governmental objective; and
(ii) is substantially related to the achievement of
that objective. Nothing in this paragraph shall be construed
to grant any Federal regulatory agency or State regulatory
agency authority to require use of a particular type
of software or hardware in order to comply with section
101(d).
(B) PAPER OR PRINTED FORM- Notwithstanding subsection
(c)(1), a Federal regulatory agency or State regulatory
agency may interpret section 101(d) to require retention
of a record in a tangible printed or paper form if--
(i) there is a compelling governmental interest
relating to law enforcement or national security
for imposing such requirement; and
(ii) imposing such requirement is essential to
attaining such interest.
(4) EXCEPTIONS FOR ACTIONS BY GOVERNMENT AS MARKET PARTICIPANT-
Paragraph (2)(C)(iii) shall not apply to the statutes, regulations,
or other rules of law governing procurement by the Federal
or any State government, or any agency or instrumentality
thereof.
(c) ADDITIONAL LIMITATIONS-
(1) REIMPOSING PAPER PROHIBITED- Nothing in subsection
(b) (other than paragraph (3)(B) thereof) shall be construed
to grant any Federal regulatory agency or State regulatory
agency authority to impose or reimpose any requirement that
a record be in a tangible printed or paper form.
(2) CONTINUING OBLIGATION UNDER GOVERNMENT PAPERWORK ELIMINATION
ACT- Nothing in subsection (a) or (b) relieves any Federal
regulatory agency of its obligations under the Government
Paperwork Elimination Act (title XVII of Public Law 105-277).
(d) AUTHORITY TO EXEMPT FROM CONSENT PROVISION-
(1) IN GENERAL- A Federal regulatory agency may, with respect
to matter within its jurisdiction, by regulation or order
issued after notice and an opportunity for public comment,
exempt without condition a specified category or type of
record from the requirements relating to consent 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.
(2) PROSPECTUSES- Within 30 days after the date of enactment
of this Act, the Securities and Exchange Commission shall
issue a regulation or order pursuant to paragraph (1) exempting
from section 101(c) 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.
(e) ELECTRONIC LETTERS OF AGENCY- 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
record or electronic signature was used in its formation or
authorization.
SEC. 105. STUDIES.
(a) DELIVERY- Within 12 months after the date of the enactment
of this Act, the Secretary of Commerce shall conduct an inquiry
regarding the effectiveness of the delivery of electronic records
to consumers using electronic mail as compared with delivery
of written records via the United States Postal Service and
private express mail services. The Secretary shall submit a
report to the Congress regarding the results of such inquiry
by the conclusion of such 12-month period.
(b) STUDY OF ELECTRONIC CONSENT- Within 12 months after the
date of the enactment of this Act, the Secretary of Commerce
and the Federal Trade Commission shall submit a report to the
Congress evaluating any benefits provided to consumers by the
procedure required by section 101(c)(1)(C)(ii); any burdens
imposed on electronic commerce by that provision; whether the
benefits outweigh the burdens; whether the absence of the procedure
required by section 101(c)(1)(C)(ii) would increase the incidence
of fraud directed against consumers; and suggesting any revisions
to the provision deemed appropriate by the Secretary and the
Commission. In conducting this evaluation, the Secretary and
the Commission shall solicit comment from the general public,
consumer representatives, and electronic commerce businesses.
SEC. 106. DEFINITIONS.
For purposes of this title:
(1) CONSUMER- The term `consumer' means an individual who
obtains, through a transaction, products or services which
are used primarily for personal, family, or household purposes,
and also means the legal representative of such an individual.
(2) ELECTRONIC- The term `electronic' means relating to
technology having electrical, digital, magnetic, wireless,
optical, electromagnetic, or similar capabilities.
(3) ELECTRONIC AGENT- The term `electronic agent' means
a computer program or an electronic or other automated means
used independently to initiate an action or respond to electronic
records or performances in whole or in part without review
or action by an individual at the time of the action or
response.
(4) ELECTRONIC RECORD- The term `electronic record' means
a contract or other record created, generated, sent, communicated,
received, or stored by electronic means.
(5) ELECTRONIC SIGNATURE- The term `electronic signature'
means an electronic sound, symbol, or process, attached
to or logically associated with a contract or other record
and executed or adopted by a person with the intent to sign
the record.
(6) FEDERAL REGULATORY AGENCY- The term `Federal regulatory
agency' means an agency, as that term is defined in section
552(f) of title 5, United States Code.
(7) INFORMATION- The term `information' means data, text,
images, sounds, codes, computer programs, software, databases,
or the like.
(8) PERSON- The term `person' means an individual, corporation,
business trust, estate, trust, partnership, limited liability
company, association, joint venture, governmental agency,
public corporation, or any other legal or commercial entity.
(9) RECORD- The term `record' means information that is
inscribed on a tangible medium or that is stored in an electronic
or other medium and is retrievable in perceivable form.
(10) REQUIREMENT- The term `requirement' includes a prohibition.
(11) SELF-REGULATORY ORGANIZATION- The term `self-regulatory
organization' means an organization or entity that is not
a Federal regulatory agency or a State, but that is under
the supervision of a Federal regulatory agency and is authorized
under Federal law to adopt and administer rules applicable
to its members that are enforced by such organization or
entity, by a Federal regulatory agency, or by another self-regulatory
organization.
(12) STATE- The term `State' includes the District of Columbia
and the territories and possessions of the United States.
(13) TRANSACTION- The term `transaction' means an action
or set of actions relating to the conduct of business, consumer,
or commercial affairs between two or more persons, including
any of the following types of conduct--
(A) the sale, lease, exchange, licensing, or other
disposition of (i) personal property, including goods
and intangibles, (ii) services, and (iii) any combination
thereof; and
(B) the sale, lease, exchange, or other disposition of
any interest in real property, or any combination thereof.
SEC. 107. EFFECTIVE DATE.
(a) IN GENERAL- Except as provided in subsection (b), this
title shall be effective on October 1, 2000.
(b) EXCEPTIONS-
(1) RECORD RETENTION-
(A) IN GENERAL- Subject to subparagraph (B), this title
shall be effective on March 1, 2001, with respect to
a requirement that a record be retained imposed by--
(i) a Federal statute, regulation, or other rule
of law, or
(ii) a State statute, regulation, or other rule
of law administered or promulgated by a State regulatory
agency.
(B) DELAYED EFFECT FOR PENDING RULEMAKINGS- If on March
1, 2001, a Federal regulatory agency or State regulatory
agency has announced, proposed, or initiated, but not
completed, a rulemaking proceeding to prescribe a regulation
under section 104(b)(3) with respect to a requirement
described in subparagraph (A), this title shall be effective
on June 1, 2001, with respect to such requirement.
(2) CERTAIN GUARANTEED AND INSURED LOANS- With regard to
any transaction involving a loan guarantee or loan guarantee
commitment (as those terms are defined in section 502 of
the Federal Credit Reform Act of 1990), or involving a program
listed in the Federal Credit Supplement, Budget of the United
States, FY 2001, this title applies only to such transactions
entered into, and to any loan or mortgage made, insured,
or guaranteed by the United States Government thereunder,
on and after one year after the date of enactment of this
Act.
(3) STUDENT LOANS- With respect to any records that are
provided or made available to a consumer pursuant to an
application for a loan, or a loan made, pursuant to title
IV of the Higher Education Act of 1965, section 101(c) of
this Act shall not apply until the earlier of--
(A) such time as the Secretary of Education publishes
revised promissory notes under section 432(m) of the
Higher Education Act of 1965; or
(B) one year after the date of enactment of this Act.
TITLE II - TRANSFERABLE RECORDS
SEC. 201. TRANSFERABLE RECORDS.
(a) DEFINITIONS- For purposes of this section:
(1) TRANSFERABLE RECORD- The term `transferable record'
means an electronic record that--
(A) would be a note under Article 3 of the Uniform
Commercial Code if the electronic record were in writing;
(B) the issuer of the electronic record expressly has
agreed is a transferable record; and
(C) relates to a loan secured by real property.
A transferable record may be executed using an electronic
signature.
(2) OTHER DEFINITIONS- The terms `electronic record', `electronic
signature', and `person' have the same meanings provided
in section 106 of this Act.
(b) CONTROL- A person has control of a transferable record
if a system employed for evidencing the transfer of interests
in the transferable record reliably establishes that person
as the person to which the transferable record was issued or
transferred.
(c) CONDITIONS- A system satisfies subsection (b), and a person
is deemed to have control of a transferable record, if the transferable
record is created, stored, and assigned in such a manner that--
(1) a single authoritative copy of the transferable record
exists which is unique, identifiable, and, except as otherwise
provided in paragraphs (4), (5), and (6), unalterable;
(2) the authoritative copy identifies the person asserting
control as--
(A) the person to which the transferable record was
issued; or
(B) if the authoritative copy indicates that the transferable
record has been transferred, the person to which the
transferable record was most recently transferred;
(3) the authoritative copy is communicated to and maintained
by the person asserting control or its designated custodian;
(4) copies or revisions that add or change an identified
assignee of the authoritative copy can be made only with
the consent of the person asserting control;
(5) each copy of the authoritative copy and any copy of
a copy is readily identifiable as a copy that is not the
authoritative copy; and
(6) any revision of the authoritative copy is readily identifiable
as authorized or unauthorized.
(d) STATUS AS HOLDER- Except as otherwise agreed, a person
having control of a transferable record is the holder, as defined
in section 1-201(20) of the Uniform Commercial Code, of the
transferable record and has the same rights and defenses as
a holder of an equivalent record or writing under the Uniform
Commercial Code, including, if the applicable statutory requirements
under section 3-302(a), 9-308, or revised section 9-330 of the
Uniform Commercial Code are satisfied, the rights and defenses
of a holder in due course or a purchaser, respectively. Delivery,
possession, and endorsement are not required to obtain or exercise
any of the rights under this subsection.
(e) OBLIGOR RIGHTS- Except as otherwise agreed, an obligor
under a transferable record has the same rights and defenses
as an equivalent obligor under equivalent records or writings
under the Uniform Commercial Code.
(f) PROOF OF CONTROL- If requested by a person against which
enforcement is sought, the person seeking to enforce the transferable
record shall provide reasonable proof that the person is in
control of the transferable record. Proof may include access
to the authoritative copy of the transferable record and related
business records sufficient to review the terms of the transferable
record and to establish the identity of the person having control
of the transferable record.
(g) UCC REFERENCES- For purposes of this subsection, all references
to the Uniform Commercial Code are to the Uniform Commercial
Code as in effect in the jurisdiction the law of which governs
the transferable record.
SEC. 202. EFFECTIVE DATE.
This title shall be effective 90 days after the date of enactment
of this Act.
TITLE III - PROMOTION OF INTERNATIONAL ELECTRONIC
COMMERCE
SEC. 301. PRINCIPLES GOVERNING THE USE OF ELECTRONIC
SIGNATURES IN INTERNATIONAL TRANSACTIONS.
(a) PROMOTION OF ELECTRONIC SIGNATURES-
(1) REQUIRED ACTIONS- The Secretary of Commerce shall promote
the acceptance and use, on an international basis, of electronic
signatures in accordance with the principles specified in
paragraph (2) and in a manner consistent with section 101
of this Act. The Secretary of Commerce shall take all actions
necessary in a manner consistent with such principles to
eliminate or reduce, to the maximum extent possible, the
impediments to commerce in electronic signatures, for the
purpose of facilitating the development of interstate and
foreign commerce.
(2) PRINCIPLES- The principles specified in this paragraph
are the following:
(A) Remove paper-based obstacles to electronic transactions
by adopting relevant principles from the Model Law on
Electronic Commerce adopted in 1996 by the United Nations
Commission on International Trade Law.
(B) Permit parties to a transaction to determine the
appropriate authentication technologies and implementation
models for their transactions, with assurance that those
technologies and implementation models will be recognized
and enforced.
(C) Permit parties to a transaction to have the opportunity
to prove in court or other proceedings that their authentication
approaches and their transactions are valid.
(D) Take a nondiscriminatory approach to electronic
signatures and authentication methods from other jurisdictions.
(b) CONSULTATION- In conducting the activities required by
this section, the Secretary shall consult with users and providers
of electronic signature products and services and other interested
persons.
(c) DEFINITIONS- As used in this section, the terms `electronic
record' and `electronic signature' have the same meanings provided
in section 106 of this Act.
TITLE IV - COMMISSION ON ONLINE CHILD PROTECTION
SEC. 401. AUTHORITY TO ACCEPT GIFTS.
Section 1405 of the Child Online Protection Act (47 U.S.C.
231 note) is amended by inserting after subsection (g) the following
new subsection:
`(h) GIFTS, BEQUESTS, AND DEVISES- The Commission may accept,
use, and dispose of gifts, bequests, or devises of services
or property, both real (including the use of office space) and
personal, for the purpose of aiding or facilitating the work
of the Commission. Gifts or grants not used at the termination
of the Commission shall be returned to the donor or grantee.'.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.
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Problématique
