PRIA, Government Policy, Made Personal

Summary

Treat electronic signatures and electronic records as just as valid and enforceable as paper ones for deals that cross state or national lines, unless another part of this law says otherwise. People still must follow other legal rules about rights and duties, and no one has to agree to use electronic records or signatures unless a government agency is required to accept certain non-contract records. If a business wants to give a consumer a required notice or record electronically, the consumer must say yes first. Before agreeing, the consumer must get a clear notice about the right to get paper instead, how to withdraw consent, whether the consent covers one transaction or many kinds of records, how to get a paper copy and any fees, and what computer or software is needed. The consumer must show they can access the electronic form. If the tech requirements change in a way that might stop access, the provider must tell the consumer, let them withdraw without new penalties, and repeat the access-step. Electronic records must be kept so they accurately show the original information, remain accessible to entitled people for the required time, and can be reproduced. Originals and checks can be satisfied by compliant electronic versions. Electronic notarizations and actions by automated agents count if linked to the right person. The rules also apply to insurance, and insurance agents or brokers won’t be liable for agreed electronic procedures if they were not negligent, did not create the procedures, and did not break them.

Title 15, §7001

Commerce and Trade, Source: USLM XML via OLRC

(a)In general

Notwithstanding any statute, regulation, or other rule of law (other than this subchapter and subchapter 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 subchapter 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 subchapter 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 chapter 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 subchapter 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 subchapter 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 subchapter and subchapter 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.

Notes & Related Subsidiaries

Editorial Notes

References in Text

This chapter, referred to in subsec. (c)(2)(B), was in the original “this Act”, meaning Pub. L. 106–229, June 30, 2000, 114 Stat. 464, which is classified principally to this chapter. For complete classification of this Act to the Code, see

Short Title

note below and Tables. For the

Effective Date

of this subchapter, referred to in subsec. (c)(5), see

Effective Date

note below.

Statutory Notes and Related Subsidiaries

Effective Date

Pub. L. 106–229, title I, § 107,

June 30, 2000, 114 Stat. 473, provided that: “(a) In General.—Except as provided in subsection (b), this title [enacting this subchapter] shall be effective on

October 1, 2000. “(b) Exceptions.—“(1) Record retention.—“(A) In general.—Subject to subparagraph (B), this title [enacting this subchapter] 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) [15 U.S.C. 7004(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 [2 U.S.C. 661a]), 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 [

June 30, 2000]. “(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 [20 U.S.C. 1070 et seq.], section 101(c) of this Act [15 U.S.C. 7001(c)] 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 [20 U.S.C. 1082(m)]; or “(B) one year after the date of enactment of this Act [

June 30, 2000].”

Short Title

Pub. L. 106–229, § 1, June 30, 2000, 114 Stat. 464, provided that: “This Act [enacting this chapter and amending provisions set out as a note under section 231 of Title 47, Telecommunications] may be cited as the ‘Electronic Signatures in Global and National Commerce Act’.”

§7001 General Rule of Validity

Summary

Title 15, §7001

Notes & Related Subsidiaries

Editorial Notes

References in Text

Short Title

Effective Date

Effective Date

Statutory Notes and Related Subsidiaries

Effective Date

Short Title

Citations & Metadata