1. How does the requirement of section 101(c)(1)(C)(ii) of the ESIGN Act, that businesses allow consumers an opportunity to provide consumer consent or confirmation of consent electronically prior to providing consumers electronic versions of information, affect electronic commerce? How will electronic commerce be affected in the future by this requirement?

The prior consent provision is in line with the principals of permission marketing.

For financial products, the requirement of prior consent adds steps to the processes that support new account setup and the initial purchase requirements (for mutual funds, for example).  If these activities are performed on line, the burden is not onerous. 

However, when the medium used is paper, face to face or phone (in person or automated voice response), the prior consent requirement may inhibit the collection of consents.  Consumers who are satisfied Internet users for their non-financial activities are likely candidates for electronic delivery.  Habit, though, drives them to use the medium of communication they have always used and they expect to be able to opt for any new service using that medium.

The electronic consent or confirmation rules do not serve these customers well because closure is not possible using non-electronic media. They must hang up the phone, for example, and log on to the Internet to consent. 

Some businesses drive consumers to the Website when they express their consent preference offline.  Others send them an email, hyperlinking them to consent screens.

Either solution carries processing requirements:  capturing the consent preference, sending emails, determining whether the consumer has followed up. (email acknowledgements with hyperlinks to consent screens?), database field requirements (status: pending/confirmed/active, etc.), recordkeeping requirements at each stage of the process (date of each event in the process, text of any communications) and archiving requirements (consent preference collected in person, on paper, using Automated Voice Response.

B2C communications will be enriched by the speed and the dynamic of electronic delivery.  Forms needing signatures, addresses and other customer information can be requested and provided in real time which will increase service quality and efficiency.

Commerce will be affected by reduced processing costs such as: manual data entry, systems maintenance, postal service, phone calls.  Secondly, and more importantly for regulatory bodies, procedure auditing will be assisted by auditing system log files instead of physical files and service representative notes. 

General Issues, continued

As paper delivery will continue to be a customer option, physical processing will continue to exist for some years, which will mean service providers will be expected to support multiple client communication channels.

2. What statutory changes, if any, should be made to the ESIGN Act to assist businesses and consumers in domestic and/or international business markets in implementing and adapting to the consumer consent and consent confirmation provisions under section 101(c)(1)(C)(ii) of the Act?

3. What, if any, are the benefits and burdens to consumers and electronic commerce resulting from the affirmative consent provisions in the statute? Do any such benefits outweigh any burdens?

4. What, if any, improvements or changes should Congress make to the statutory language of section 101(c)(1)(C)(ii)?

5. Are there any additional issues that should be considered during this study?