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S.761
Electronic Signatures in Global and National Commerce Act (Enrolled as Agreed to or Passed by Both House and Senate)
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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.'.
2- The European union.
L 13/12 EN Official Journal of the European Communities 19. 1. 2000
DIRECTIVE 1999/93/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 13 December 1999 on a Community framework for electronic signatures
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,
Article 1:Scope .Article 2efinitions.Article 3:Market access.Article 4:Internal market principles.Article 5:Legal effects of electronic signatures.Article 6:Liability.Article 7:International aspects.:Article 8
Article 13:Implementation.Article 14:Entry into force.Article 15.Addressees.
Having regard to the Treaty establishing the European
Community, and in particular Articles 47(2), 55 and 95
thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the Economic and Social
Committee (2),
Having regard to the opinion of the Committee of the Regions (3), Acting in accordance with the procedure laid down in Article 251 of the Treaty (4),
Whereas:
(1) On 16 April 1997 the Commission presented to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions a Communication on a European Initiative in Electronic Commerce;
(2) On 8 October 1997 the Commission presented to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions a Communication on ensuring security and trust in electronic communication — towards a European framework
for digital signatures and encryption;
(3) On 1 December 1997 the Council invited the Commission to submit as soon as possible a proposal for a Directive of the European Parliament and of the Council
on digital signatures;
(4) Electronic communication and commerce necessitate ' electronic signatures' and related services allowing data authentication; divergent rules with respect to legal recognition of electronic signatures and the accreditation of certification-service providers in the Member States may create a significant barrier to the use of electronic communications and electronic commerce; on the other
hand, a clear Community framework regarding the conditions applying to electronic signatures will
strengthen confidence in, and general acceptance of, the new technologies; legislation in the Member States should not hinder the free movement of goods and services in the internal market;
(5) The interoperability of electronic-signature products should be promoted; in accordance with Article 14 of the Treaty, the internal market comprises an area without internal frontiers in which the free movement of goods is ensured; essential requirements specific to electronic-
signature products must be met in order to ensure free movement within the internal market and to build trust in electronic signatures, without prejudice to Council Regulation (EC) No 3381/94 of 19 December 1994 setting up a Community regime for the control of exports of dual-use goods (5) and Council Decision 94/ 942/CFSP of 19 December 1994 on the joint action adopted by the Council concerning the control of exports of dual-use goods (6);
(6) This Directive does not harmonize the provision of services with respect to the confidentiality of information where they are covered by national provisions concerned with public policy or public security;
(7) The internal market ensures the free movement of persons, as a result of which citizens and residents of the European Union increasingly need to deal with authorities in Member States other than the one in which they reside; the availability of electronic communication
could be of great service in this respect;
(8) Rapid technological development and the global character of the Internet necessitate an approach which is open to various technologies and services capable of authenticating data electronically;
(9) Electronic signatures will be used in a large variety of circumstances and applications, resulting in a wide range of new services and products related to or using electronic signatures; the definition of such products and services should not be limited to the issuance and management of certificates, but should also encompass any other service and product using, or ancillary to, electronic signatures, such as registration services, time stamping services, directory services, computing services
or consultancy services related to electronic signatures;
(10) The internal market enables certification-service providersto develop their cross-order activities with a view to increasing their competitiveness, and thus to offer consumers and businesses new opportunities to exchange information and trade electronically in a secure way, regardless of frontiers; in order to stimulate
the Community-wide provision of certification services over open networks, certification-service-providers should be free to provide their services without prior authorization; prior authorization means not only any
(1) OJ C 325, 23.10.1998, p. 5.
(2) OJ C 40, 15.2.1999, p. 29.
(3) OJ C 93, 6.4.1999, p. 33.
(4) Opinion of the European Parliament of 13 January 1999 (OJ C
104, 14.4.1999, p. 49), Council Common Position of 28 June 1999
(OJ C 243, 27.8.1999, p. 33) and Decision of the European Parliament
of 27 October 1999 (not yet published in the Official
Journal). Council Decision of 30 November 1999.
(5) OJ L 367, 31.12.1994, p. 1. Regulation as amended by Regulation
(EC) No 837/95 (OJ L 90, 21.4.1995, p. 1).
(6) OJ L 367, 31.12.1994, p. 8. Decision as last amended by Decision
99/193/CFSP (OJ L 73, 19.3.1999, p. 1).
19. 1. 2000 EN Official Journal of the European Communities L
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