Billing Code: 6750-01
FEDERAL TRADE COMMISSION
Request for Comment and Notice of Public Workshop:
AGENCIES: United States Federal Trade Commission and the National Telecommunications and Information Administration, United States Department of Commerce.
ACTION: Notice Requesting Public Comment and Academic Papers and Announcing Public Workshop
SUMMARY: Section 105(b) of the Electronic Signatures in Global and National Commerce Act ("ESIGN" or "the Act"), Pub. L. No. 106-229, 114 Stat. 464 (2000), requires the Federal Trade Commission ("FTC" or "the Commission") and the Secretary of Commerce to study and report to Congress on the benefits and burdens of requiring consumer consent to receive information electronically pursuant to § 101(c)(1)(C)(ii). In connection with preparing this report, the FTC and the National Telecommunications and Information Administration ("NTIA") seek public comment and academic papers and plan to hold a public workshop to inform this study.
DATES: Written comments and papers are requested to be submitted on or before March 16, 2001. The workshop will be held on April 3, 2001, from 8:30 a.m. until 5:00 p.m., at the Federal Trade Commission, 600 Pennsylvania Avenue, NW, Washington, D.C. 20580.
ADDRESSES: Six hard copies of each written comment or paper should be submitted to: Secretary, Federal Trade Commission, Room H-159, 600 Pennsylvania Ave., NW, Washington, D.C. 20580. An additional copy of written comments should be sent to: Sallianne Fortunato, National Telecommunications and Information Administration, Room 4716, 14th Street and Constitution Avenue, NW, Washington, D.C. 20230. Alternatively, comments and papers may be submitted to the following email addresses: "email@example.com" and "firstname.lastname@example.org." The content of any comments or papers submitted by email should be organized in sequentially numbered paragraphs. All submissions should be captioned "ESIGN Study-Comment P004102."
To enable prompt review and accessibility to the public, written comments and papers also should be submitted to the FTC, if possible, in electronic form, on a 3½ inch computer disk, with a label stating the name of the person or entity submitting the comment and the name and version of the word processing program used to create the document. Programs based on DOS or Windows are preferred. Files from other operating systems should be submitted in ASCII text format. Individual members of the public filing comments need not submit multiple copies or comments in electronic form.
Written comments and papers will be available for public inspection in accordance with the Freedom of Information Act, 5 U.S.C. 552, and Commission regulations, 16 CFR 4.9, on normal business days between the hours of 8:30 a.m. and 5:00 p.m. at Room 130, Federal Trade Commission, 600 Pennsylvania Avenue, NW, Washington, D.C. 20580. The Commission will make this notice and, to the extent possible, all comments or papers received in electronic form in response to this notice available to the public through the Internet at the following addresses: http://www.ftc.gov and http://www.ntia.doc.gov.
FOR FURTHER INFORMATION: For questions about this request for comment and academic papers and notice of public workshop, contact: April Major, Attorney, Division of Marketing Practices, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue, NW, Washington, D.C. 20580, telephone 202-326-2972; Marianne Schwanke, Attorney, Division of Marketing Practices, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue, NW, Washington, D.C. 20580, telephone 202-326-3165; or Sallianne Fortunato, Telecom Policy Analyst, Office of Policy Analysis and Development, National Telecommunications and Information Administration (NTIA), Room 4716, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, D.C. 20230, telephone 202-482-1880.
I. Background: Electronic Signatures in Global and National Commerce Act
On June 30, 2000, Congress enacted ESIGN to facilitate the use of electronic records and signatures in interstate or foreign commerce and to remove uncertainty about the validity of contracts entered into electronically. Under the Act, businesses that are required to provide or make available information to consumers in writing may provide consumers with that information using electronic records only if the consumer affirmatively consents in a manner that reasonably demonstrates the consumer's ability to access the electronic record. The Act requires the Secretary of Commerce and the Federal Trade Commission to study the burdens and benefits of this specific consent requirement on consumers and electronic commerce and submit a report to Congress by June 30, 2001.
II. Statutory Language Requiring a Report to Congress
The statutory language requiring the Secretary of Commerce and the Federal Trade Commission to submit a report to Congress regarding the benefits and burdens of requiring consumer consent to electronic transactions is found in § 105 (b) of ESIGN and is set forth below.
Sec. 105. Studies
* * *
The language of § 105(b) specifically limits its scope to § 101(c)(1)(C)(ii) which reads:
Sec. 101(c) Consumer Disclosures
In summary, if a statute, regulation, or other rule of law requires information relating to a transaction to be provided or made available to a consumer in writing, § 101(c) allows this information to be provided or made available electronically only if certain consumer protection conditions are met. Section 101(c)(1)(C)(ii) is one such condition and provides that the consumer must consent electronically or confirm his or her consent electronically, in a manner that reasonably demonstrates the consumer's ability to access the information.
Under § 105(b), the Federal Trade Commission and the Secretary of Commerce are tasked with submitting to Congress a report that evaluates five aspects of § 101(c)(1)(C)(ii). First, we must assess the benefits to consumers of the procedures required by § 101(c)(1)(C)(ii). Second, we are to identify any burdens imposed by these procedures. Third, we must balance the benefits and burdens and discuss whether the benefits outweigh the burdens. Fourth, we are to consider whether the absence of the consent procedure would increase consumer fraud. Finally, we are to suggest improvements or changes to the statutory language that we deem appropriate.
III. Invitation to Comment
The FTC and NTIA request that interested parties, including industry members, electronic commerce businesses, consumer representatives, law enforcement, regulatory agencies, and academics, submit written comments on any issue of fact, law, or policy that may inform the study of the procedure required by § 101(c)(1)(C)(ii). We invite comment on ESIGN generally to inform our examination of the narrower issues associated with the consumer consent procedure found in § 101(c)(1)(C)(ii). Please provide copies of any studies, surveys, research, or other empirical data referenced in responses. The questions set forth below are intended only as examples of the issues relevant to our examination. Commenters are invited to discuss any relevant issue, regardless of whether it is identified below.
IV. Public Workshop
Staff of the FTC and NTIA will conduct a public workshop to discuss issues raised by the comments received in response to this notice. Notification of interest in participating in the public workshop should be submitted in writing, separately from comments, to April Major, Division of Marketing Practices, Federal Trade Commission, 600 Pennsylvania Avenue, NW, Washington, D.C. 20580, or to Sallianne Fortunato, Telecom Policy Analyst, Office of Policy Analysis and Development, National Telecommunications and Information Administration (NTIA), Room 4716, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, D.C. 20230. We will select a limited number of parties from among those who submit comments to represent the significant interests affected by the issues raised in the notice. These parties will participate in an open discussion of the issues, including asking and answering questions based on their respective comments. In addition, the workshop will be open to the general public. The discussion will be transcribed and the transcription placed on the public record. The FTC and NTIA will consider the views and suggestions made during the workshop, in conjunction with the written and email comments, in formulating its report to Congress.
Parties will be selected on the basis of the following criteria:
The workshop will be held on April 3, 2001, from 8:30 a.m. until 5:00 p.m., at the FTC, 600 Pennsylvania Ave, NW, Washington, D.C. Prior to that date, parties selected will be provided with copies of the comments from all other participants selected to participate in the workshop.
PUBLIC PARTICIPATION: The workshop will be open to the public and is physically accessible to people with disabilities. To facilitate entry to the Federal Trade Commission building, please have a photo identification available and/or a U.S. Government building pass, if applicable. Any member of the public wishing to attend and requiring special services, such as sign language interpretation or other ancillary aids, should contact Sallianne Fortunato at least three (3) days prior to the meeting via the contact information provided above.
Donald S. Clark
Kathy D. Smith