Sharon Ambrose
A BILL IN THE COUNCIL OF THE DISTRICT OF COLUMBIA
Councilmember Sharon Ambrose introduced.the
following bill, which was referred to the 7
Committee on Consumer and Regulatory Affairs.
To enact consumer protection for signatures
obtained by electronic means.
BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF
COLUMBIA, That this act may be cited as the "Electronic Signatures
Consumer Protection Act of 2001 ".
Sec. 2. Consumer disclosures.
(a) Notwithstanding any other provision of law,
if a statute, regulation, or other rule of law requires that information
relating to a transaction be provided or made available to a consumer in
writing, the use of an electronic record to provide or make available
(whichever is required) the information satisfies the requirement that the
information be in writing if:
(1) The consumer has affirmatively consented to
such use and has not withdrawn the consent;(2) The consumer, prior to consent, is provided
with a clear and conspicuous statement:(A) 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;(B) 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;(C) Describing the procedures that the
consumer must use to withdraw consent as provided in paragraph (A) of
this subsection and to update information needed to contact the
consumer electronically; and(D) Informing the consumer (i) how, after the
consent, the consumer may, upon request, obtain a paper copy of an
electronic record, and (ii) whether a fee will be charged for the
copy;(3) The consumer:
(A) Prior to consent, is provided with a
statement of the hardware and software requirements for access to and
retention of the electronic records; and(B) 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(4) After the consent of a consumer in
accordance with subsection (a)(1) of this section, 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:(A) 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 the
withdrawal and without the imposition of any condition or consequence
that was not disclosed under subsection (b)(1) of this section; and(B) Again complies with paragraph (3) of this
subsection.
(b)(1) Nothing in this act shall
affect 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.
(2) If a law that was enacted prior to the
effective date of 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 maybe provided or made available
electronically only if the method used provides verification or
acknowledgment of receipt (whichever is required).
(c) The legal effectiveness, validity, or
enforceability of a contract executed by a consumer shall not be denied
solely because of the failure to obtain electronic consent or confirmation
of consent by the consumer in accordance with subsection (a)(3)(B) of this
section.
(d) 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
subsection (a) of this section 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
subsection (a)(4) of this section may, at the election of the consumer, be
treated as a withdrawal of consent for purposes of this subsection.
(e) This section shall not apply to any records
that are provided or made available to a consumer who has consented prior
to the effective date of this act to receive such records in electronic
form as permitted by any statute, regulation, or other rule of law.
(f) An oral communication or a recording of an
oral communication shall not qualify as an electronic record for purposes
of this section except as otherwise provided under applicable law.
Sec. 3. Retention of contracts and records.
(a) If a statute, regulation, or other rule of
law requires that a contract or other record relating to a transaction be
retained, that requirement shall be met by retaining an electronic record
of the information in the contract or other record that:
(1) Accurately reflects the information set
forth in the contract or other record; and(2) Remains accessible to all persons who are
entitled to access by statute, regulation, or rule of law, for the
period required by the 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.
(b) A requirement to retain a contract or other
record in accordance with subsection (a) of this section shall not apply
to any information whose sole purpose is to enable the contract or other
record to be sent, communicated, or received.
(c) If a statute, regulation, or other rule of
law requires a contract or other record relating to a transaction 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, the statute, regulation, or rule of law
shall be satisfied by an electronic record that complies with subsection
(a) of this section.
(d) If a statute, regulation, or other rule of
law requires the retention of a check, the requirement shall be satisfied
by retention of an electronic record of the information on the front and
back of the check in accordance with subsection (a) of this section.
Sec. 4. Accuracy and ability to retain contracts
and other records.
Notwithstanding any other provision of law, if a
statute, regulation, or other rule of law requires that a contract or
other record relating to a transaction be in writing, the legal effect,
validity, or enforceability of an electronic record of the contract or
other record may be denied if the 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.
Sec. 5. Fiscal impact statement.
The Council adopts the fiscal impact statement in
the committee report as the fiscal impact statement required by section
602(c)(3) of the District of Columbia Home Rule Act, approved December 24,
1973 (87 Stat. 813; D.C. Code § 1-233(c)(3)).
Sec. 6. Effective Date.
This act shall take effect following approval by
the Mayor (or in the event of veto by the Mayor, action by the Council to
override the veto), approval by the Financial Responsibility and
Management Assistance Authority as provided in section 203(a) of the
District of Columbia Financial Responsibility and Management Assistance
Act of 1995, approved April 17, 1995 (109 Stat. 116; D.C. Code §
47-392.3(a)), a 30-day period of Congressional review as provided in
section 602(c)(1) of the District of Columbia Home Rule Act, approved
December 24, 1973 (87 Stat. 813; D.C. Code §1-233(c)(1)), and publication
in the District of Columbia Register.