Home > 105th Congressional Bills > S. 2392 (es) To encourage the disclosure and exchange of information about computer processing problems, solutions, test practices and test results, and related matters in connection with the transition to the year 2000. ...

S. 2392 (es) To encourage the disclosure and exchange of information about computer processing problems, solutions, test practices and test results, and related matters in connection with the transition to the year 2000. ...


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        S.2392

                       One Hundred Fifth Congress

                                 of the

                        United States of America


                          AT THE SECOND SESSION

          Begun and held at the City of Washington on Tuesday,
the twenty-seventh day of January, one thousand nine hundred and ninety-
                                  eight


                                 An Act


 
 To encourage the disclosure and exchange of information about computer 
  processing problems, solutions, test practices and test results, and 
   related matters in connection with the transition to the year 2000.

    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 ``Year 2000 Information and Readiness 
Disclosure Act''.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--Congress finds the following:
        (1)(A) At least thousands but possibly millions of information 
    technology computer systems, software programs, and semiconductors 
    are not capable of recognizing certain dates in 1999 and after 
    December 31, 1999, and will read dates in the year 2000 and 
    thereafter as if those dates represent the year 1900 or thereafter 
    or will fail to process those dates.
        (B) The problem described in subparagraph (A) and resulting 
    failures could incapacitate systems that are essential to the 
    functioning of markets, commerce, consumer products, utilities, 
    government, and safety and defense systems, in the United States 
    and throughout the world.
        (C) Reprogramming or replacing affected systems before the 
    problem incapacitates essential systems is a matter of national and 
    global interest.
        (2) The prompt, candid, and thorough disclosure and exchange of 
    information related to year 2000 readiness of entities, products, 
    and services--
            (A) would greatly enhance the ability of public and private 
        entities to improve their year 2000 readiness; and
            (B) is therefore a matter of national importance and a 
        vital factor in minimizing any potential year 2000 related 
        disruption to the Nation's economic well-being and security.
        (3) Concern about the potential for legal liability associated 
    with the disclosure and exchange of year 2000 readiness information 
    is impeding the disclosure and exchange of such information.
        (4) The capability to freely disseminate and exchange 
    information relating to year 2000 readiness, solutions, test 
    practices and test results, with the public and other entities 
    without undue concern about litigation is critical to the ability 
    of public and private entities to address year 2000 needs in a 
    timely manner.
        (5) The national interest will be served by uniform legal 
    standards in connection with the disclosure and exchange of year 
    2000 readiness information that will promote disclosures and 
    exchanges of such information in a timely fashion.
    (b) Purposes.--Based upon the powers contained in article I, 
section 8, clause 3 of the Constitution of the United States, the 
purposes of this Act are--
        (1) to promote the free disclosure and exchange of information 
    related to year 2000 readiness;
        (2) to assist consumers, small businesses, and local 
    governments in effectively and rapidly responding to year 2000 
    problems; and
        (3) to lessen burdens on interstate commerce by establishing 
    certain uniform legal principles in connection with the disclosure 
    and exchange of information related to year 2000 readiness.

SEC. 3. DEFINITIONS.

    In this Act:
        (1) Antitrust laws.--The term ``antitrust laws''--
            (A) has the meaning given to it in subsection (a) of the 
        first section of the Clayton Act (15 U.S.C. 12(a)), except that 
        such term includes section 5 of the Federal Trade Commission 
        Act (15 U.S.C. 45) to the extent such section 5 applies to 
        unfair methods of competition; and
            (B) includes any State law similar to the laws referred to 
        in subparagraph (A).
        (2) Consumer.--The term ``consumer'' means an individual who 
    acquires a consumer product for purposes other than resale.
        (3) Consumer product.--The term ``consumer product'' means any 
    personal property or service which is normally used for personal, 
    family, or household purposes.
        (4) Covered action.--The term ``covered action'' means a civil 
    action of any kind, whether arising under Federal or State law, 
    except for an action brought by a Federal, State, or other public 
    entity, agency, or authority acting in a regulatory, supervisory, 
    or enforcement capacity.
        (5) Maker.--The term ``maker'' means each person or entity, 
    including the United States or a State or political subdivision 
    thereof, that--
            (A) issues or publishes any year 2000 statement;
            (B) develops or prepares any year 2000 statement; or
            (C) assists in, contributes to, or reviews, reports or 
        comments on during, or approves, or otherwise takes part in the 
        preparing, developing, issuing, approving, or publishing of any 
        year 2000 statement.
        (6) Republication.--The term ``republication'' means any 
    repetition, in whole or in part, of a year 2000 statement 
    originally made by another.
        (7) Year 2000 internet website.--The term ``year 2000 Internet 
    website'' means an Internet website or other similar electronically 
    accessible service, clearly designated on the website or service by 
    the person or entity creating or controlling the content of the 
    website or service as an area where year 2000 statements concerning 
    that person or entity are posted or otherwise made accessible to 
    the general public.
        (8) Year 2000 processing.--The term ``year 2000 processing'' 
    means the processing (including calculating, comparing, sequencing, 
    displaying, or storing), transmitting, or receiving of date data 
    from, into, and between the 20th and 21st centuries, and during the 
    years 1999 and 2000, and leap year calculations.
        (9) Year 2000 readiness disclosure.--The term ``year 2000 
    readiness disclosure'' means any written year 2000 statement--
            (A) clearly identified on its face as a year 2000 readiness 
        disclosure;
            (B) inscribed on a tangible medium or stored in an 
        electronic or other medium and retrievable in perceivable form; 
        and
            (C) issued or published by or with the approval of a person 
        or entity with respect to year 2000 processing of that person 
        or entity or of products or services offered by that person or 
        entity.
        (10) Year 2000 remediation product or service.--The term ``year 
    2000 remediation product or service'' means a software program or 
    service licensed, sold, or rendered by a person or entity and 
    specifically designed to detect or correct year 2000 processing 
    problems with respect to systems, products, or services 
    manufactured or rendered by another person or entity.
        (11) Year 2000 statement.--
            (A) In general.--The term ``year 2000 statement'' means any 
        communication or other conveyance of information by a party to 
        another or to the public, in any form or medium--
                (i) concerning an assessment, projection, or estimate 
            concerning year 2000 processing capabilities of an entity, 
            product, service, or set of products and services;
                (ii) concerning plans, objectives, or timetables for 
            implementing or verifying the year 2000 processing 
            capabilities of an entity, product, service, or set of 
            products and services;
                (iii) concerning test plans, test dates, test results, 
            or operational problems or solutions related to year 2000 
            processing by--

                    (I) products; or
                    (II) services that incorporate or utilize products; 
                or

                (iv) reviewing, commenting on, or otherwise directly or 
            indirectly relating to year 2000 processing capabilities.
            (B) Not included.--For the purposes of any action brought 
        under the securities laws, as that term is defined in section 
        3(a)(47) of the Securities Exchange Act of 1934 (15 U.S.C. 
        78c(a)(47)), the term ``year 2000 statement'' does not include 
        statements contained in any documents or materials filed with 
        the Securities and Exchange Commission, or with Federal banking 
        regulators, pursuant to section 12(i) of the Securities 
        Exchange Act of 1934 (15 U.S.C. 781(i)), or disclosures or 
        writing that when made accompanied the solicitation of an offer 
        or sale of securities.

SEC. 4. PROTECTION FOR YEAR 2000 STATEMENTS.

    (a) Evidence Exclusion.--No year 2000 readiness disclosure, in 
whole or in part, shall be admissible against the maker of that 
disclosure to prove the accuracy or truth of any year 2000 statement 
set forth in that disclosure, in any covered action brought by another 
party except that--
        (1) a year 2000 readiness disclosure may be admissible to serve 
    as the basis for a claim for anticipatory breach, or repudiation of 
    a contract, or a similar claim against the maker, to the extent 
    provided by applicable law; and
        (2) the court in any covered action shall have discretion to 
    limit application of this subsection in any case in which the court 
    determines that the maker's use of the year 2000 readiness 
    disclosure amounts to bad faith or fraud, or is otherwise beyond 
    what is reasonable to achieve the purposes of this Act.
    (b) False, Misleading and Inaccurate Year 2000 Statements.--Except 
as provided in subsection (c), in any covered action, to the extent 
that such action is based on an allegedly false, inaccurate, or 
misleading year 2000 statement, the maker of that year 2000 statement 
shall not be liable under Federal or State law with respect to that 
year 2000 statement unless the claimant establishes, in addition to all 
other requisite elements of the applicable action, by clear and 
convincing evidence, that--
        (1) the year 2000 statement was material; and
        (2)(A) to the extent the year 2000 statement was not a 
    republication, that the maker made the year 2000 statement--
            (i) with actual knowledge that the year 2000 statement was 
        false, inaccurate, or misleading;
            (ii) with intent to deceive or mislead; or
            (iii) with a reckless disregard as to the accuracy of the 
        year 2000 statement; or
        (B) to the extent the year 2000 statement was a republication, 
    that the maker of the republication made the year 2000 statement--
            (i) with actual knowledge that the year 2000 statement was 
        false, inaccurate, or misleading;
            (ii) with intent to deceive or mislead; or
            (iii) without notice in that year 2000 statement that--
                (I) the maker has not verified the contents of the 
            republication; or
                (II) the maker is not the source of the republication 
            and the republication is based on information supplied by 
            another person or entity identified in that year 2000 
            statement or republication.
    (c) Defamation or Similar Claims.--In a covered action arising 
under any Federal or State law of defamation, trade disparagement, or a 
similar claim, to the extent such action is based on an allegedly 
false, inaccurate, or misleading year 2000 statement, the maker of that 
year 2000 statement shall not be liable with respect to that year 2000 
statement, unless the claimant establishes by clear and convincing 
evidence, in addition to all other requisite elements of the applicable 
action, that the year 2000 statement was made with knowledge that the 
year 2000 statement was false or made with reckless disregard as to its 
truth or falsity.
    (d) Year 2000 Internet Website.--
        (1) In general.--Except as provided in paragraph (2), in any 
    covered action other than a covered action involving personal 
    injury or serious physical damage to property, in which the 
    adequacy of notice about year 2000 processing is at issue, the 
    posting, in a commercially reasonable manner and for a commercially 
    reasonable duration, of a notice by the entity charged with giving 
    such notice on the year 2000 Internet website of that entity shall 
    be deemed an adequate mechanism for providing that notice.
        (2) Exception.--Paragraph (1) shall not apply if the court 
    finds that the use of the mechanism of notice--
            (A) is contrary to express prior representations regarding 
        the mechanism of notice made by the party giving notice;
            (B) is materially inconsistent with the regular course of 
        dealing between the parties; or
            (C) occurs where there have been no prior representations 
        regarding the mechanism of notice, no regular course of dealing 
        exists between the parties, and actual notice is clearly the 
        most commercially reasonable means of providing notice.
        (3) Construction.--Nothing in this subsection shall--
            (A) alter or amend any Federal or State statute or 
        regulation requiring that notice about year 2000 processing be 
        provided using a different mechanism;
            (B) create a duty to provide notice about year 2000 
        processing;
            (C) preclude or suggest the use of any other medium for 
        notice about year 2000 processing or require the use of an 
        Internet website; or
            (D) mandate the content or timing of any notices about year 
        2000 processing.
    (e) Limitation on Effect of Year 2000 Statements.--
        (1) In general.--In any covered action, a year 2000 statement 
    shall not be interpreted or construed as an amendment to or 
    alteration of a contract or warranty, whether entered into by or 
    approved for a public or private entity.
        (2) Not applicable.--
            (A) In general.--This subsection shall not apply--
                (i) to the extent the party whose year 2000 statement 
            is alleged to have amended or altered a contract or 
            warranty has otherwise agreed in writing to so alter or 
            amend the contract or warranty;
                (ii) to a year 2000 statement made in conjunction with 
            the formation of the contract or warranty; or
                (iii) if the contract or warranty specifically provides 
            for its amendment or alteration through the making of a 
            year 2000 statement.
            (B) Rule of construction.--Nothing in this subsection shall 
        affect applicable Federal or State law in effect as of the date 
        of enactment of this Act with respect to determining the extent 
        to which a year 2000 statement affects a contract or warranty.
    (f) Special Data Gathering.--
        (1) In general.--A Federal entity, agency, or authority may 
    expressly designate a request for the voluntary provision of 
    information relating to year 2000 processing, including year 2000 
    statements, as a special year 2000 data gathering request made 
    pursuant to this subsection.
        (2) Specifics.--A special year 2000 data gathering request made 
    under this subsection shall specify a Federal entity, agency, or 
    authority, or, with its consent, another public or private entity, 
    agency, or authority, to gather responses to the request.
        (3) Protections.--Except with the express consent or permission 
    of the provider of information described in paragraph (1), any year 
    2000 statements or other such information provided by a party in 
    response to a special year 2000 data gathering request made under 
    this subsection--
            (A) shall be exempt from disclosure under subsection (b)(4) 
        of section 552 of title 5, United States Code, commonly known 
        as the ``Freedom of Information Act'';
            (B) shall not be disclosed to any third party; and

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