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[[Page 463]]

        ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT

[[Page 114 STAT. 464]]

Public Law 106-229
106th Congress

                                 An Act


 
To facilitate the use of electronic records and signatures in interstate 
                          or foreign commerce.

<<NOTE: June 30, 2000 -  [S. 761]>>     Be it enacted by the Senate and 
House of Representatives of the United States of America in 
Congress <<NOTE: Electronic Signatures in Global and National Commerce 
Act. Contracts.>> assembled,

SECTION 1. <<NOTE: 15 USC 7001 note.>> 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 <<NOTE: 15 USC 7001.>> 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

[[Page 114 STAT. 465]]

        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

[[Page 114 STAT. 466]]

                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,

[[Page 114 STAT. 467]]

        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 <<NOTE: Applicability.>> 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. <<NOTE: 15 USC 7002.>> 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--

[[Page 114 STAT. 468]]

            (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. <<NOTE: 15 USC 7003.>> 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.

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