ELECTRONIC SIGNATURES

IN GLOBAL AND NATIONAL

COMMERCE ACT

The Consumer Consent Provision

in Section 101(c)(1)(C)(ii) 

FEDERAL TRADE COMMISSION

Bureau of Consumer Protection

DEPARTMENT OF COMMERCE

National Telecommunications and

Information Administration

June 2001

REPORT TO CONGRESS
Electronic Signatures in Global and National Commerce Act

DEPARTMENT OF COMMERCE

Donald L. Evans, Secretary

NATIONAL TELECOMMUNICATIONS AND INFORMATION

ADMINISTRATION

John Sopko, Acting Assistant Secretary for

Communications and Information

Kelly Klegar Levy, Associate Administrator, Office

of Policy Analysis and Development

Kathy Smith, Chief Counsel

Wendy Lader, Senior Policy Analyst

Josephine Scarlett, Senior Counsel

Sallianne Fortunato, Policy Analyst

ECONOMICS AND STATISTICS ADMINISTRATION

Lee Price, Deputy Under Secretary

Laurence S. Campbell, Senior Regulatory Policy

Analyst

NATIONAL INSTITUTE OF STANDARDS AND

TECHNOLOGY

Fran Nielson, Senior Computer Scientist

William Burr, Manager, NIST Security

Technology and Chairman, Federal Public Key

Infrastructure Technical Working Group

TECHNOLOGY ADMINISTRATION

Karen Laney-Cummings, Technology Policy

Analyst

FEDERAL TRADE COMMISSION

Timothy J. Muris, Chairman

BUREAU OF CONSUMER PROTECTION

J. Howard Beales, Director

Teresa Schwartz, Deputy Director

Eileen Harrington, Associate Director, Division of

Marketing Practices

Allen Hile, Assistant Director, Division of

Marketing Practices

April Major, Staff Attorney

Marianne Schwanke, Staff Attorney

Craig Tregillus, Staff Attorney

Carole Danielson, Senior Investigator

BUREAU OF ECONOMICS

Keith Anderson, Economist
The Consumer Consent Provision in Section 101(c)(1)(C)(ii)

TABLE OF CONTENTS

EXECUTIVE SUMMARY ..................................................... i

I. GROWTH OF E-COMMERCE ................................................ 1

II. CONGRESSIONAL MANDATE: STUDY OF SECTION 101(c)(1)(C)(ii) ....................... 2

A. ESIGN’S CONSUMER CONSENT PROVISION ................................... 2

B. THE FTC/COMMERCE STUDY ........................................... 3

1. Outreach Efforts .................................................. 3

2. Federal Register Notice ............................................. 3

3. Public Forum .................................................... 4

III. SUMMARY OF PUBLIC COMMENTS AND WORKSHOP ................................ 5

A. BENEFITS TO CONSUMERS .............................................. 6

1. Ensures access to documents and promotes awareness ......................... 6

2. Provides a “bright line” to identify legitimate businesses ....................... 6

3. Helps prevent deception and fraud ...................................... 7

B. BENEFITS AND BURDENS TO ELECTRONIC COMMERCE ........................... 8

1. Legal certainty and protection ......................................... 8

2. Technological neutrality ............................................. 8

3. Loss of potential customers ........................................... 9

4. Underlying laws sufficient ........................................... 10

IV. ANALYSIS OF THE ISSUES ................................................. 10

A. BENEFITS VS. BURDENS ............................................... 11

B. PREVENTION OF DECEPTION AND FRAUD .................................... 12

V. CONCLUSION ......................................................... 13

APPENDIX A: FEDERAL REGISTER NOTICE

APPENDIX B: LIST OF CONTACTS

APPENDIX C: LIST OF COMMENTERS AND ACRONYMS

APPENDIX D: WORKSHOP AGENDA

APPENDIX E: WORKSHOP PARTICIPANTS
Electronic Signatures in Global and National Commerce Act
The Consumer Consent Provision in Section 101(c)(1)(C)(ii)

1. Pub. L. No. 106-229, 114 Stat. 464 (2000) (codified at 15 U.S.C. § 7001 et seq.).

i

EXECUTIVE SUMMARY

On June 30, 2000, Congress enacted the Electronic Signatures in Global and National Commerce Act1

(“ESIGN” or “the Act”), to facilitate the use of electronic records and signatures in interstate and foreign

commerce by ensuring the validity and legal effect of contracts entered into electronically. Careful to

preserve the underlying consumer protection laws governing consumers’ rights to receive certain

information in writing, Congress imposed special requirements on businesses that want to use electronic

records or signatures in consumer transactions. Section 101(c)(1)(C)(ii) of the Act requires businesses to

obtain from consumers electronic consent or confirmation to receive information electronically that a law

requires to be in writing. The Act went into effect in October 2000.

In Section 105(b) of the Act, Congress directed the Department of Commerce (Commerce) and the

Federal Trade Commission (FTC) to issue a report on the impact of the consumer consent provision of

Section 101(c)(1)(C)(ii). Specifically, Congress asked Commerce and the FTC to report on the benefits of

that consumer consent provision to consumers; the burdens that the provision imposes on electronic

commerce (“e-commerce”); whether the benefits outweigh the burdens; the effect of the consent provision

in preventing fraud; and whether any statutory changes are necessary.

To evaluate these issues, Commerce and the FTC conducted extensive outreach to the on-line business

community, technology developers, consumer groups, law enforcement and academia. To solicit public

comments from these groups and the general public, the agencies issued a Notice in the Federal Register. 

The agencies also conducted a Public Workshop to explore issues raised in the comments and outreach

efforts. The record consists of written comments and public workshop discussion, as well as anecdotal

evidence, expert opinion, and independent research. There was consensus among the participants and

commenters that not enough time has passed since the law took effect to: a) allow consumers or businesses

to experience the full effect of the provision; b) develop sufficient empirical data to evaluate quantitatively

whether the benefits of implementation outweigh the burdens; and c) determine whether the lack of the type

of procedure required by the consumer consent provision would lead to an increase in deception and fraud

against consumers. 

Although participants expressed a range of views, it is reasonable to conclude that, thus far, the

benefits of the consumer consent provision of ESIGN outweigh the burdens of its implementation on
Electronic Signatures in Global and National Commerce Act

ii

electronic commerce. The provision facilitates e-commerce and the use of electronic records and signatures

while enhancing consumer confidence. It preserves the right of consumers to receive written information

required by state and federal law. The provision also discourages deception and fraud by those who might

fail to provide consumers with information the law requires that they receive.

The consumer consent provision in ESIGN appears to be working satisfactorily at this stage of the

Act’s implementation. Almost all participants in the study recommended that, for the foreseeable future,

implementation issues should be worked out in the marketplace and through state and federal regulations. 

Therefore, Commerce and the FTC recommend that Congress take no action at this time to amend the

statute.
The Consumer Consent Provision in Section 101(c)(1)(C)(ii)

2. Estimated U.S. retail e-commerce sales for the first quarter of 2001 are from the U.S. Census Bureau, Economics and

Statistics Administration, U.S. Department of Commerce release CB01-83, May 16, 2001. They are based on the Standard

Industrial Classification (SIC). Estimated U.S. retail e-commerce sales for 2000 are from the U.S. Census Bureau,

Economics and Statistics Administration, U.S. Department of Commerce release CB01-28, February 16, 2001. Note that

these estimates are not seasonally adjusted. For more information see the Census web site at

http://www.census.gov/mrts/www/mrts.html.

3. Estimated e-commerce revenues for selected services sectors for 1999 are from E-Stats, Mar. 7, 2001, Table 3, U.S. Census

Bureau, Economics and Statistics Administration, and are based on the North American Industry Classification System

(NAICS). 

1

I. GROWTH OF E-COMMERCE

E-commerce represents a small but vital segment of business-to-consumer transactions. The Census

Bureau (Census) estimates that U.S. e-commerce sales by retail establishments for the first quarter 2001

were $7.0 billion, up 33.5 percent from the first quarter of 2000. The first quarter 2001 e-commerce

results accounted for 0.91 percent of total retail sales, up from 0.70 percent in the first quarter of 2000,

though down from 1.01 percent in the fourth quarter of 2000. Retail e-commerce sales of $25.8 billion in

2000 accounted for 0.8 percent of total retail sales.2

E-commerce plays a notable role in other sectors where business-to-consumer transactions are

important. According to Census estimates for 1999 (the most recent year available), e-commerce revenues

for the securities brokerage industry were $3.8 billion, or 1.9 percent of total revenues of $203.7 billion. 

E-commerce revenues for the on-line information services industry were $1 billion, which equates to 5.1

percent of total revenues of $20.1 billion; and e-commerce revenues for the travel services sector were

$5.3 billion, or over 21 percent of total revenues of $25 billion.3

The benefits of e-commerce extend beyond the dollar values that are placed on business activity: it

gives consumers access to an unlimited marketplace of goods and services ranging from music and stocks

to on-line books and shopping services at their fingertips. To continue enjoying the fruits of this

technology, businesses and consumers – domestic and international – must have confidence in the integrity

and credibility of this emerging electronic marketplace. Congress intended ESIGN to have a positive

impact on the continued growth of e-commerce and consumer confidence.
Electronic Signatures in Global and National Commerce Act

4. Section 101(c)(1)(A).

5. Section 101(c)(1)(B). The disclosures include: (1) whether the consumer may request to receive the information in nonelectronic or paper form; (2) the consumer’s right to withdraw consent to electronic records and the consequences – including

possible termination of the relationship – that will result from such withdrawal; (3) the transaction(s) or categories of records

to which the consent applies; (4) the procedures for withdrawing consent and updating the information needed to contact the

consumer electronically; and (5) how the consumer may request a paper copy of the electronic record as well as what fees, if

any, will be charged for the copy. Section 101(c)(1)(B)(i)-(iv). In addition, businesses must provide the consumer with a

statement of the hardware and software needed to access and retain the electronic record. Section 101(c)(1)(C)(i).

6. In this Report, we refer to the provision as the “consumer consent provision in Section 101(c)(1)(C)(ii),” to distinguish it from

the broader consumer consent provision (Section 101(c)), and the affirmative consumer consent requirement in Section

101(c)(1)(A).

2

II. CONGRESSIONAL MANDATE: STUDY OF SECTION 101(C)(1)(C)(II)

A. ESIGN’S CONSUMER CONSENT PROVISION

On June 30, 2000, Congress enacted ESIGN to facilitate the use of electronic records and signatures in

interstate and foreign commerce by ensuring the validity and legal effect of contracts entered into

electronically. Careful to preserve the underlying consumer protection laws governing consumers’ rights to

receive certain information in writing, Congress imposed special requirements on businesses that want to

use electronic records or signatures in consumer transactions. Section 101(c)(1) of the Act provides that

information required by law to be in writing can be made available electronically to a consumer only if he

or she affirmatively consents to receive the information electronically4and the business clearly and

conspicuously discloses specified information to the consumer before obtaining his or her consent.5

 Moreover, Section 101(c)(1)(C)(ii) states that a consumer’s consent to receive electronic records is

valid only if the consumer “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.”6 Section 101(c)(1)(C)(ii)

overlays existing state and federal laws requiring that certain information be provided to consumers in

writing. It also provides a framework for how businesses can comply with the underlying statutory or

regulatory requirement to provide written information to consumers electronically – whether the

information is a disclosure, a notice, or a statement of rights and obligations – within the context of a

business-to-consumer transaction. 
The Consumer Consent Provision in Section 101(c)(1)(C)(ii)

3

B. THE FTC/COMMERCE STUDY

In addition to including the consumer consent provision in Section 101(c)(1)(C)(ii), Congress sought an

analysis of the impact of the provision on both consumers and businesses. Specifically, Section 105(b) of

the Act requires that:

Within 12 months after the date of the enactment of this Act, the Secretary of Commerce and the

Federal Trade Commission shall submit a report to Congress evaluating any benefits provided to

consumers by the procedure required by section 101(c)(1)(C)(ii); any burdens imposed on

electronic commerce by that provision; whether the benefits outweigh the burdens; whether the

absence of the procedure required by section 101(c)(1)(C)(ii) would increase the incidence of fraud

directed against consumers; and suggesting any revisions to the provision deemed appropriate by

the Secretary and the Commission. In conducting this evaluation, the Secretary and the

Commission shall solicit comment from the general public, consumer representatives, and electronic

commerce businesses.

The National Telecommunications and Information Administration (NTIA), on behalf of the

Department of Commerce, and the FTC conducted the study required by Section 105(b). Based on the

narrow mandate in Section 105(b), the agencies have focused their study and this Report on Section

101(c)(1)(C)(ii), and did not evaluate any other consumer protection provisions of the Act.

1. Outreach Efforts

To evaluate the technology available to employ the consumer consent provision, and to learn how

companies are implementing Section 101(c)(1)(C)(ii), the agencies conducted extensive outreach to the

on-line business community, technology developers, consumer groups, law enforcement, and academia.

The industry contacts included high-tech companies involved in infrastructure development for electronic

contracting and electronic payment systems, as well as business entities that use, or plan to use, electronic

records in consumer transactions. All interested parties were encouraged to submit papers and comments

on the benefits and burdens of the requirement, and staff did research to identify the types of businesses

that are using the Section 101(c)(1)(C)(ii) consumer consent procedures for providing information “in

writing” to consumers in electronic formats.

2. Federal Register Notice 

To comply with Section 105(b)’s mandate to solicit comment from the general public, consumer

representatives, and electronic commerce businesses, NTIA and the FTC published a Notice in the Federal

Register on February 13, 2001. The Notice requested comments on the benefits and burdens of the
Electronic Signatures in Global and National Commerce Act

7. 66 Fed. Reg. 10011 (February 13, 2001). A copy of the Notice is attached to this Report as Appendix A.

8. A list of the individuals and organizations we contacted is attached to this Report as Appendix B.

9. All comments are available on the FTC website at: http://www.ftc.gov/bcp/workshops/esign/comments/index.htm and on the

NTIA website at: http://www.ntia.doc.gov/ntiahome/ntiageneral/ESIGN/esignpage.html. A list of commenters and the

acronym used to refer to each commenter in this Report is attached as Appendix C. The first reference to each comment will

include the full name of the organization, its acronym, and the page number. Subsequent references will be cited as

“[Acronym] at [page].”

10. The agenda for the Public Workshop is attached to this Report as Appendix D. The transcript of the workshop was placed on

the public record and was also posted on the FTC website at http://www.ftc.gov/bcp/workshops/esign/comments/index.htm and

on the NTIA website at http://www.ntia.doc.gov/ntiahome/ntiageneral/ESIGN/esignpage.html. References to the transcript

will include the name of the workshop participant, the acronym of the organization represented and the page number (e.g.,

“[Participant]/[Acronym of organization], tr. at [page]”).

11. Several participants also provided demonstrations of the technology that has been or could be used by companies to obtain

consumer consent for the provision of electronic documents.

12. The Workshop Participant List is attached to this Report as Appendix E.

4

consumer consent provision in Section 101(c)(1)(C)(ii), and announced a Public Workshop to discuss the

issues raised in the Notice.7 To increase awareness of the study and the workshop, each agency issued a

press release announcing the Federal Register Notice, and placed the Notice on a special “ESIGN Study”

portion of its website. Staff at both agencies also sent copies of the Notice by e-mail to several hundred

contacts who had previously expressed interest in issues affecting electronic commerce.8 

In response to the Notice, NTIA and the FTC received 32 comments from consumer organizations,

software and computer companies, banks, members of the financial services industry and academics.9

Many of the commenters responded electronically to a special e-mail box. In addition, four commenters

submitted supplemental statements after the workshop. NTIA and the FTC posted all written comments on

their websites to facilitate public access.

3. Public Forum

On April 3, 2001, the agencies hosted a Public Workshop to explore issues raised in the comments and

the outreach efforts, to discuss new issues, and to develop a thorough basis for analysis and conclusions.10

The agenda included a discussion of legal issues, technology issues, benefits and burdens, and best

practices for complying with the consumer consent provision of Section 101(c)(1)(C)(ii), as well as a

session for public participation.11 A total of 21 individuals and organizations participated in the roundtable

discussions and several more made comments during the public session of the workshop.12
The Consumer Consent Provision in Section 101(c)(1)(C)(ii)

13. Gallagher/Fidelity, tr. at 125-126; AIA at 1; EFSC at 3-4; Wachovia at 3.

14. The e-commerce businesses noted that the national scope of ESIGN provides guidance to e-commerce businesses regarding

interstate electronic transactions by eliminating the problems created by attempts to comply with different state laws. E.g.,

Gallagher/Fidelity, tr. at 124. The fact that many businesses already are providing (or moving towards providing) information

electronically, pursuant to ESIGN's consumer consent provision, suggests that any costs or uncertainties created by Section

101(c)(1)(C)(ii) are unlikely to inhibit this process.

15. One commenter noted that Congress should refrain from revising the consumer consent provision of Section 101(c)(1)(C)(ii)

when the United Nations Commission on International Trade (UNCITRAL) Working Group on E-Commerce is expected to

complete its work on the development of an electronic signatures law by year end. Baker & McKenzie at 3.

5

The following sections of this Report provide an analysis of the comments and information received in

response to the Federal Register Notice and outreach activities, during the workshop discussion and after

the workshop. Specifically, Section III provides an overview of the issues raised by the comments and the

workshop discussion. Section IV analyzes the benefits and burdens of the consumer consent provision in

Section 101(c)(1)(C)(ii), and evaluates the effect of the consumer consent provision in preventing fraud. 

Section V states the agencies’ conclusions.

III. SUMMARY OF PUBLIC COMMENTS AND WORKSHOP

In general, consumer advocates and state law enforcement agencies expressed strong support for the

consumer consent provision in Section 101(c)(1)(C)(ii) as an effective tool to prevent fraud and increase

consumer confidence in the electronic marketplace. In their responses to the Federal Register Notice and

their comments at the workshop, consumer groups and state law enforcement agencies said the benefits of

Section 101(c)(1)(C)(ii) to consumers and e-commerce businesses outweigh the burdens associated with

adapting business systems to comply with the provision.

Some commenters maintained that the provision adds an unnecessary extra step that at best would delay

the consummation of the transaction, and at worst could cause confusion that could lead consumers to forgo

the use of electronic records.13 While a number of the commenters representing e-commerce businesses

expressed some concern about the costs and uncertainties of the implementation and interpretation of

Section 101(c)(1)(C)(ii), they nevertheless agreed that the enactment of ESIGN provided overall net

benefits.14 Most agreed, however, that because of industry’s limited experience with the requirement, it is

premature to recommend changes.15
Electronic Signatures in Global and National Commerce Act

16. Consumers Union (CU) at 3-4; National Consumer Law Center (NCLC) at 2, 3-4; Richard Blumenthal, Connecticut Attorney

General (CT AG) at 2, 3-4.

17. Weinberg/NACAA, tr. at 156-57; National Consumer Law Center Supplementary Comments (NCLC Supp.) at 1;

MacCarthy/Visa, tr. at 156; Grant/NCL, tr. at 259-60 (public session remark); CT AG at 1-2; CU at 1.

18. Weinberg/NACAA, tr. at 156-57; Saunders/NCLC, tr. at 157.

19. Silanis Technology (Silanis) at 1-2.

20. Weinberg/NACAA, tr. at 147; see also Dayanim, tr. at 135-36.

6

A. BENEFITS TO CONSUMERS

The consumer advocates who submitted comments and those who participated in the workshop

identified a number of benefits that the consumer consent provision in Section 101(c)(1)(C)(ii) provides. 

1. Ensures access to documents and promotes awareness

Section 101(c)(1)(C)(ii) requires that the e-commerce business determine whether the consumer has the

ability to receive an electronic notice before transmitting the legally required notices to the consumer.16

According to several commenters, the provision ensures that the consumer has access to a computer and to

the Internet; ensures that the consumer has access to the software necessary to open the documents that are

to be transmitted electronically; and raises the consumer’s awareness of the importance of the documents

received and the importance of receiving the documents electronically.17 One commenter suggested that

increased awareness is particularly beneficial to those consumers who ordinarily are not concerned about

receiving information that is required by law to be in writing and can now be made available electronically,

or who do not fully consider the implications of receiving this information electronically.18 Other

commenters noted that putting notices in an electronic form that can be easily accessed is likely to lead to

the development of a common format. This was cited as an additional benefit for consumers and will also

help on-line merchants meet other provisions of ESIGN, such as Section 101(d), the document retention

provision.19

2. Provides a “bright line” to identify legitimate businesses

The commenters stated that Section 101(c)(1)(C)(ii) also reassures consumers about the legitimacy of an

on-line merchant. “Good businesses,” the commenters noted, would ensure receipt of documents and

make certain that the consumer is comfortable dealing with an electronic format.20 Discussion at the

workshop suggested that compliance with the ESIGN consumer consent provision can provide a “bright
The Consumer Consent Provision in Section 101(c)(1)(C)(ii)

21. Id.

22. Saunders/NCLC, tr. at 11-12; Yen/Hudson Cook, tr. at 23-24. For example, the FTC’s Door-to-Door Sales Rule requires that

sellers give consumers three business days to change their mind regarding any purchase that is covered by the rule. See 16

C.F.R. § 429.

23. Hillebrand/CU, tr. at 120; CT AG at 2-3.

24. NCLC at 5-6.

25. Id. at 6.

26. Id. at 7.

27. Id. at 2.

7

 line” by which businesses can signal their legitimacy to consumers and differentiate themselves from

unscrupulous operators, and as a result, enhance consumer confidence in on-line transactions.21

3. Helps prevent deception and fraud

Some commenters suggested that Section 101(c)(1)(C)(ii) protects consumers from 

e-commerce businesses that might misuse the provision of electronic records to circumvent laws requiring

that consumers receive certain disclosures, information and other documents. This could include such

documents as a confirmation of their transaction, a statement of the terms and conditions of the transaction,

a copy of their contract to use in court if a dispute arises, or information about any right to cancel a

transaction within a “cooling-off” period.22

Several consumer advocates stated that a significant benefit of the consumer consent provision in

Section 101(c)(1)(C)(ii) is the prevention of consumer fraud.23 Most anti-fraud laws provide remedies after

the fraud has been committed and proved. ESIGN attempts to prevent fraud before it occurs. Both

consumer and industry representatives gave specific examples of how Section 101(c)(1)(C)(ii) protects

against fraud, noting that the provision:

C discourages the use of electronic records to provide information to a consumer without Internet

access;24

C reduces the ability of businesses to use product price unfairly to persuade consumers to accept

electronic records instead of paper;25

C deters companies from fraudulently changing the terms of contracts in cases where consumers

electronically sign an agreement and consent to receive electronic disclosures;26

C ensures the ability of consumers to access or retain important electronic records;27
Electronic Signatures in Global and National Commerce Act

28. MacCarthy/Visa, tr. at 156.

29. NCLC at 6.

30. Dayanim, tr. at 136, 145-46; Buckley/EFSC, tr. at 196; see also Benham Dayanim (Dayanim) at 5.

31. Dayanim, tr. at 136, 145-46; Buckley/EFSC, tr. at 196.

32. Wittie/ICI, tr. at 56.

33. MacCarthy/Visa, tr. at 103, 132; Gallagher/Fidelity, tr. at 124; Winn, tr. at 159.

34. Software & Information Industry Association (SIIA) at 7 & n.4; Selwood Research (Selwood) at 1.

8

C provides a way to gauge the consumer’s ability to use electronic equipment;28 and

C gives the consumer a chance to reflect on what he or she is agreeing to before confirming consent

electronically, in a transaction that originates in a face-to-face setting.29

B. BENEFITS AND BURDENS TO ELECTRONIC COMMERCE

Section 105(b) asks whether Section 101(c)(1)(C)(ii) imposes burdens on e-commerce. While the

participants in our study identified some burdens on e-commerce, they also identified several benefits. The

commenters identified the following benefits and burdens for e-commerce businesses. 

1. Legal certainty and protection

Some commenters noted that the consumer consent provision in Section 101(c)(1)(C)(ii) provides legal

certainty in on-line business transactions, and may act as a “safe-harbor” for e-commerce businesses that

follow the parameters in the Act.30 Businesses that implement procedures for complying with Section

101(c)(1)(C)(ii) have some assurance that they have obtained consent and provided electronic documents in

a manner sufficient to make the electronic transactions legally valid.31 In addition, they obtain information

to show that the record they provided could be accessed by the consumer.32 As a result, the consumer

consent provision may protect e-commerce businesses from baseless legal claims by providing an electronic

or paper document trail of the transaction when disclosures or other records are provided electronically to

consumers.

2. Technological neutrality

Most commenters agreed that Section 101(c)(1)(C)(ii) is technology-neutral, providing businesses the

flexibility to design computer applications that fit their unique needs,33 and allowing the technology and

electronic commerce marketplace to decide which technologies will be most appropriate.34 Many on-line

businesses praised the technology-neutral language, and said that technology, rather than legislation, can
The Consumer Consent Provision in Section 101(c)(1)(C)(ii)

35. Dayanim at 10; MacCarthy/Visa, tr. at 131-32; Gallagher/Fidelity, tr. at 208.

36. See Wells/b4bpartner, tr. at 127-28.

37. For example, one participant at the workshop suggested that technological difficulties in transferring between a secure website

and a file in an AdobeTM PDF format might encourage firms to shy away from using PDF files for the provision of notices, even

though such files might be otherwise preferable because they make it more difficult for anyone to tamper with the contents of

the file. Yen/Hudson Cook, tr. at 60-61. See also Wood/Household Bank, tr. at 61.

38. See, e.g., Yen Supp. at 2-3. See also, Wachovia Corporation (Wachovia) at 4; SIIA at 5 (para. 3); Investment Company

Institute (ICI) at 4 (the consumer consent procedure might cause merchants to migrate to the most common formats and those

(such as HTML) that are the easiest for demonstrating a consumer’s ability to access documents, thus chilling alternative

models and inhibiting technological innovation). 

39. Gallagher/Fidelity, tr. at 125-27, 140-43; see also Wachovia at 3-4; ICI at 3; E*Trade Bank (E*Trade) at 2-3; Yen at 2. 

40. Id. 

9

solve future problems concerning technical compatibility.35

The commenters also noted that, because ESIGN contains broad parameters for obtaining or

structuring consumer consent (including demonstrating ability to access the information), businesses have

greater flexibility when implementing new practices and procedures to conduct electronic transactions or

comply electronically with federal or state laws and regulations. Thus, brick-and-mortar businesses may be

more willing to adopt electronic methods to attract new customers and transact business electronically.36

However, the commenters expressed some concern that Section 101(c)(1)(C)(ii) would cause firms to

favor certain technologies over others that might actually be better for providing notices to consumers.37

There also was concern that the consumer consent procedure - while it might benefit consumers by

encouraging the development of a common format - would lead firms to stay with existing technologies

rather than shift to new technologies because of the need to repeat the process of obtaining consumer

consent for any new technology.38

3. Loss of potential customers

According to some commenters, Section 101(c)(1)(C)(ii) could result in a loss of business because of

the extra steps consumers have to take to agree to receive electronic versions of written documents,

particularly for transactions that begin in a face-to-face setting.39 Several commenters believed that the

consumer consent procedures might create frustration and confusion for consumers, which, in turn, could

discourage them from completing electronic transactions.40 For example, in a face-to-face meeting in a

business office, it is up to the consumer to later confirm the request to receive information in an electronic 
Electronic Signatures in Global and National Commerce Act

41. Gallagher/Fidelity, tr. at 125-26; see also ICI at 3; E*Trade at 2-3; Wachovia at 3-4.

42. ICI at 3; E*Trade at 2-3.

43. Gallagher/Fidelity, tr. at 142-43.

44. Stafford/Wachovia, tr. at 220.

45. Anderson/FTC, tr. at 139. 

46. Buchman/E*Trade, tr. at 170.

10

form from his or her home computer, if the transaction is to meet the requirements of Section

101(c)(1)(C)(ii).41 Some e-commerce businesses consider this procedure unduly intrusive and confusing for

the consumer and burdensome on e-commerce.42

Several commenters stated that the additional step is not necessarily burdensome for businesses.43 One

participant noted that her company already incorporates consent with other documentation that must be

legally executed at the start of the relationship (e.g., on-line brokerage agreements that include electronic

disclosures).44 Another workshop participant (an FTC economist) wondered why the on-line industry

could not satisfy this additional step by sending the consumer e-mail to initiate the relationship, and continue

with the electronic transaction to obtain consent for the receipt of other electronic documents.45

4. Underlying laws sufficient

According to some e-commerce businesses, including some on-line financial services companies, the

consumer consent provision in Section 101(c)(1)(C)(ii) is unnecessary because existing anti-fraud and unfair

trade statutes require businesses to make disclosures to consumers and adequately address any of the on-line

problems that may arise.46

IV. ANALYSIS OF THE ISSUES

Although a number of e-commerce businesses, principally in the financial services industry, have

implemented the procedures in Section 101(c)(1)(C)(ii), there was consensus among the participants and

commenters that not enough time has passed since the law took effect to: a) allow consumers or businesses

to experience the full effect of the provision; b) develop sufficient empirical data to evaluate quantitatively

whether the benefits of implementation outweigh the burdens; and c) determine whether the lack of the type

of procedure required by the consumer consent provision would lead to an increase in deception and fraud

against consumers. Nonetheless, based on industry experience; anecdotal evidence, expert opinion and
The Consumer Consent Provision in Section 101(c)(1)(C)(ii)

11

other information collected through outreach activities with consumer advocates and members of the 

e-commerce community; independent research; written comments submitted in response to the Federal

Register Notice; and discussion during the workshop, it is reasonable to conclude that, thus far, the benefits

provided to consumers by the procedures in the provision outweigh the burdens imposed on electronic

commerce.

A. BENEFITS VS. BURDENS

Consumer advocates suggest that Section 101(c)(1)(C)(ii) may prevent deception and fraud before it

occurs by giving consumers more information about the legitimacy of the business they are dealing with

and alerting them to the importance of receiving electronic documents. Businesses that have implemented

Section 101(c)(1)(C)(ii) also report benefits, including protection from liability, increased revenues resulting

from increased consumer confidence, and the opportunity to engage in additional dialogue with consumers

about the transactions.

Although the record indicates that Section 101(c)(1)(C)(ii) causes some burdens, a number of

commenters stated that the added step to obtain the consumer’s consent is not significantly burdensome. To

the degree they identified burdens, there is insufficient data to quantitatively assess their likelihood or

severity, or their impact on consumers and e-commerce businesses. In addition, the record suggests that

some burdens, such as the added step created by the consumer consent provision in Section

101(c)(1)(C)(ii), may be resolved or minimized over time as businesses and consumers adjust to the consent

procedure and gain experience sending and receiving documents in an electronic form. In addition, given

the pace of technological development, there is reason to believe that some issues, such as technical

incompatibility in file formats, will be resolved by existing or future technology. 

Similarly, instances of consumer frustration or confusion and the potential for loss of business may be

solved by the creative structuring of the consent provision. For example, solutions may include

incorporating the consent procedure of Section 101(c)(1)(C)(ii) in documents that must be legally executed

at the beginning of the relationship (such as an on-line brokerage agreement) or initiating the relationship

with a consumer using electronic mail that requires a response. The technology-neutral language of the

provision encourages creativity in the structure of business systems that interface with consumers, and

provides an opportunity for the business and the consumer to choose the form of communication for the

transaction. Moreover, as allowed under Section 104 of the Act, federal regulatory agencies and states can
Electronic Signatures in Global and National Commerce Act

47. See e.g., Truth in Lending, Interim Rule and Request for Comments, Federal Reserve System, 66 Fed.Reg. 17329 (March 30,

2001).

48. The electronic marketplace has not been immune from the types of deceptive and fraudulent practices that have plagued the

traditional marketplace. The rapid rise in the number of consumer complaints related to on-line fraud and deception bears this

out: in 1997, the FTC received fewer than 1,000 Internet fraud complaints through its complaint database, Consumer Sentinel. 

A year later, the number had increased eight-fold. In 2000, over 25,000 complaints – about 26 percent of all fraud complaints

logged into Consumer Sentinel that year – related to on-line fraud and deception. See Prepared Statement of Eileen

Harrington, Associate Director of the Division of Marketing Practices of the Bureau of Consumer Protection, FTC, on

“Internet Fraud,” before the Subcommittee on Commerce, Trade, and Consumer Protection of the Committee on Energy and

Commerce, U.S. House of Representatives, May 23, 2001, available at the FTC’s website at: 

http://www.ftc.gov/os/2001/05/internetfraudttmy.htm.

12

issue regulations to provide guidance about the implementation of ESIGN in specific industries.47 These

regulations may resolve many of the issues that have surfaced since ESIGN was enacted.

B. PREVENTION OF DECEPTION AND FRAUD

Section 105(b) also requires Commerce and the FTC to address the issue of whether the absence of

Section 101(c)(1)(C)(ii) would cause an increase in consumer fraud. While it is difficult to measure

whether the lack of a provision would produce a certain result, we believe that the presence of the

provision will help prevent deception and fraud. ESIGN’s consumer consent provision ensures that

consumer protections that exist in traditional commercial transactions extend to business-to-consumer

electronic transactions. ESIGN overlays, rather than preempts, state and federal laws that provide for

consumers to receive certain information “in writing” in connection with a transaction, thereby preserving

consumers’ rights under those laws in the world of e-commerce transactions. 

ESIGN’s consumer consent provision in Section 101(c)(1)(C)(ii) provides a framework for how

businesses can meet the “in writing” requirements of existing state and federal laws and regulations when

providing information to consumers electronically. The provision ensures that consumers who choose to

enter the world of electronic transactions will have no less access to information and protection than those

who engage in traditional paper transactions. Moreover, this provision reduces the risk that consumers will

accept electronic disclosures or other records if they are not actually able to access those documents

electronically. As a result, it diminishes the threat that electronic records will be used to circumvent state

and federal laws that contain a “writing” requirement. The consumer consent provision in Section

101(c)(1)(C)(ii) provides substantial benefits as a preventive measure against deceptive and fraudulent

practices in the electronic marketplace.48
The Consumer Consent Provision in Section 101(c)(1)(C)(ii)

13

The consumer safeguards adopted by Congress in ESIGN are consistent with well-established

principles of consumer protection law. A keystone of consumer protection law is to ensure that the

consumer can receive accurate information necessary to decide whether to enter into a particular

transaction. The information must be delivered in a way that is timely and clear and conspicuous. That is,

it must be presented at a time and in a way that the consumer is likely to notice and understand. 

As enacted, ESIGN gives appropriate consideration to the threat that fraud and deception on the

Internet pose to the growth and public acceptance of electronic commerce. It establishes safeguards that

can avert many of the abusive practices that marked earlier technological innovations in the marketplace. 

Most laws protecting consumers against fraud and deception are implemented after fraud has been

committed and documented. ESIGN attempts to address fraud before it occurs. Nothing is more likely to

undermine consumer confidence in the electronic marketplace than exploitation by unscrupulous marketers,

who would take advantage of electronic records and signatures as yet another way to deceive consumers. 

ESIGN incorporates basic consumer protection principles that will help maintain the integrity and credibility

of the electronic marketplace, bolster confidence among consumers that electronic records and signatures

are safe and secure, and ensure that consumers continue to receive comprehensible written disclosures

required by state or federal law. Section 101(c)(1)(C)(ii) protects consumers who wish to receive

electronic records by ensuring that they have access to the same information and protections as consumers

who choose to use traditional paper-based transactions.

Section 101(c)(1)(C)(ii)’s consumer consent provision plays an integral role in achieving the goal of

ESIGN: to facilitate e-commerce and the use of electronic records and signatures, and to ensure that

consumers can access information businesses send electronically, which an underlying law requires to be in

writing.

V. CONCLUSION

Although participants expressed a range of views, it is reasonable to conclude that, thus far, the

benefits of the consumer consent provision of ESIGN outweigh the burdens of its implementation on

electronic commerce. The provision facilitates e-commerce and the use of electronic records and signatures

while enhancing consumer confidence. It preserves the right of consumers to receive written information

required by state and federal law. The provision also discourages deception and fraud by those who might

fail to provide consumers with information the law requires that they receive.
Electronic Signatures in Global and National Commerce Act

14

The consumer consent provision in Section 101(c)(1)(C)(ii) appears to be working satisfactorily at this

stage of the Act’s implementation. Almost all participants in the study recommended that, for the

foreseeable future, implementation issues should be worked out in the marketplace and through state and

federal regulations. Therefore, Commerce and the FTC recommend that Congress take no action at this

time to amend the statute.
The Consumer Consent Provision in Section 101(c)(1)(C)(ii)

1

APPENDIX A: FEDERAL REGISTER NOTICE
Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Notices 10011

Dated: February 6, 2001.

Dennis Puccinelli,

Executive Secretary.

[FR Doc. 01–3640 Filed 2–12–01; 8:45 am]

BILLING CODE 3510–DS–P

FEDERAL TRADE COMMISSION

DEPARTMENT OF COMMERCE

National Telecommunications and

Information Administration

Request for Comment and Notice of

Public Workshop: Electronic

Signatures in Global and National

Commerce Act

AGENCIES: Federal Trade Commission,

and the National Telecommunications

and Information Administration,

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’’), Public Law 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, DC 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,

DC 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, DC 20230. Alternatively,

comments and papers may be submitted

to the following email addresses: ‘‘esignstudy@ftc.gov’’ and ‘‘esignstudy@ntia.doc.gov.’’ The content of any

comments or papers submitted by email

should be organized in sequentially

numbered paragraphs. All submissions

should be captioned ‘‘ESIGN StudyComment 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 31⁄2 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, DC 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, DC 20580, telephone 202–

326–2972; Marianne Schwanke,

Attorney, Division of Marketing

Practices, Bureau of Consumer

Protection, Federal Trade Commission,

600 Pennsylvania Avenue, NW.,

Washington, DC 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, DC 20230, telephone 202–

482–1880.

SUPPLEMENTARY INFORMATION:

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

* * * * *

(b) Study of Electronic Consent.—Within

12 months after the date of the enactment of

this Act, the Secretary of Commerce and the

Federal Trade Commission shall submit a

report to the Congress evaluating any benefits

provided to consumers by the procedure

required by section 101(c)(1)(C)(ii); any

burdens imposed on electronic commerce by

that provision; whether the benefits outweigh

the burdens; whether the absence of the

procedure required by section 101(c)(1)(C)(ii)

would increase the incidence of fraud

directed against consumers; and suggesting

any revisions to the provision deemed

appropriate by the Secretary and the

Commission. In conducting this evaluation,

the Secretary and the Commission shall

solicit comment from the general public,

consumer representatives, and electronic

commerce businesses.

The language of § 105(b) specifically

limits its scope to § 101(c)(1)(C)(ii)

which reads:

Sec. 101(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:

* * * * *

(C) the consumer—

* * * * *

10012 Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Notices

(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.

* * * * *

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.

General Issues

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?

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?

Business Issues

6. If your business provides

information electronically to consumers

that is required by law to be in writing,

do you request that consumers provide

electronic consent or confirm their

consent before the electronic

information is transmitted?

7. Describe in detail the method used

to obtain electronic consumer consent.

8. If you allow consumers to provide

electronic consent to receive legallyrequired information electronically,

please explain whether the electronic

consent practice of your business is a

result of section 101(c)(1)(C)(ii) of the

ESIGN Act. Explain any other legal basis

for this practice.

9. For what types of transactions do

you seek electronic consumer consent or

confirmation prior to sending

information electronically that is

required by law to be sent to consumers

in writing?

10. Provide an estimate of the

percentage of business transactions you

conduct per month that requires the

production of legally-required

information to consumers in written

form.

11. Does your business incur

additional costs directly related to

providing customers with the option of

electronically consenting to or

confirming the consent to receive

information electronically, whether or

not you provide the information

pursuant to section 101(c)(1)(C)(ii)?

12. Are there burdens associated with

providing information electronically to

consumers that is required by law to be

provided to them in written form? Are

there burdens associated with allowing

consumers to provide electronic consent

or confirmation of consent prior to

receiving the electronic information

from your business pursuant to section

101(c)(1)(C)(ii)?

13. Explain any economies or benefits

to your business resulting from the

distribution of information

electronically to consumers (e.g. storage,

administrative processing), whether or

not the information is provided

pursuant to section 101(c)(1)(C)(ii). Are

there economies or benefits related to

allowing customers to provide

electronic consent or confirmation of

consent prior to receiving electronic

information as required by ESIGN?

14. Do the benefits of providing

electronic versions of information that is

legally required to be provided in

writing outweigh the burdens of

allowing consumers an opportunity to

provide electronic consent or

confirmation of consent in order to

receive the information?

15. Describe any feedback you have

received from consumers or employees

regarding the electronic consumer

consent or confirmation procedures

your business employs, also specifying

whether the procedures are those

required by ESIGN or were in place

prior to ESIGN.

16. Describe the methods your

business uses to verify:

A. That a consumer’s consent or

confirmation demonstrates the

consumer’s ability to access the

requested information; and

B. That the electronic consents and

confirmations are provided by the

customers entitled to and intended to

receive the electronic information.

17. What method, if any, in addition

to the consent procedure in section

101(c)(1)(C)(ii) of the ESIGN Act could

be employed to prevent consumer

fraud? Would consumer fraud increase

in the absence of the consent procedure

of section 101(c)(1)(C)(ii)?

18. With regard to international

business transactions, explain whether

your company requests electronic

consumer consent or consent

confirmation prior to sending

information electronically that is

required to be provided to the consumer

in written form. If so, explain if the

method has had positive or negative

consequences in international

commerce.

Federal Register / Vol. 66, No. 30 / Tuesday, February 13, 2001 / Notices 10013

19. If your business does not provide

consumers the opportunity to receive

information electronically by sending an

electronic consent or consent

confirmation, explain why your

business does not provide this

opportunity. Discuss any

implementation problems.

Consumer Issues

20. As a consumer, how often do you

conduct electronic transactions in

which you request information

electronically or agree to receive legallyrequired information electronically?

21. Have you obtained information

electronically that was required by law

to be provided to you in writing? If so,

did the company or business provide an

opportunity for you to provide

electronic consent or confirm your

consent before sending an electronic

version of the information to you?

22. For an electronic transaction that

provided an opportunity for you to

submit electronic consent or consent

confirmation before you received the

information electronically, describe the

effect of the process on you as a

consumer. Were you made aware of any

legal requirements regarding your

options to receive the information in a

different manner, such as on paper? If

so, were you made aware of the legal

requirements before you consented or

confirmed your consent to receive the

information in an electronic format?

23. As a consumer, what are the

benefits, if any, of receiving electronic

versions of information required by law

to be provided in written form?

24. Explain whether the benefits of

receiving electronic versions of

information outweigh any burdens

associated with providing electronic

consent or consent confirmation prior to

receiving the information.

Technology Issues

25. Are software programs that enable

consumers to provide electronic consent

or consent confirmation to companies

readily available? Describe.

26. What technology or methods are

available that would enable companies

to verify that electronic consent or

consent confirmation is transmitted by

the specific persons entitled to receive

electronic information?

27. Please explain whether additional

technology is necessary to accomplish

either the electronic consumer consent

or company verification methods

discussed in Questions 25 and 26,

above.

28. Does the development of newer

technologies impact the implementation

of the consumer consent and consent

confirmation provisions of section

101(c)(1)(C)(ii) of the ESIGN Act? If so,

how.

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, DC 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, DC 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:

1. The party submits a comment

during the comment period.

2. During the comment period the

party notifies FTC or NTIA of its interest

in participating in the workshop.

3. The party’s participation would

promote a balance of interests being

represented at the workshop.

4. The party’s participation would

promote the consideration and

discussion of a variety of issues raised

in this notice.

5. The party has expertise in activities

affected by the issues raised in this

notice.

6. The number of parties selected will

not be so large as to inhibit effective

discussion among them.

7. The party agrees to review the

comments of all of the other workshop

participants prior to the workshop.

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, DC. 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,

Secretary, Federal Trade Commission.

Kathy D. Smith,

Chief Counsel, National Telecommunications

and Information Administration.

[FR Doc. 01–3609 Filed 2–12–01; 8:45 am]

BILLING CODE 6750–01–U

DEPARTMENT OF ENERGY

Environmental Management SiteSpecific Advisory Board, Idaho

AGENCY: Department of Energy.

ACTION: Notice of open meeting.

SUMMARY: This notice announces a

meeting of the Environmental

Management Site-Specific Advisory

Board (EM SSAB), Idaho. Federal

Advisory Committee Act (Pub. L. 92–

463, 86 Stat. 770) requires that public

notice of these meeting be announced in

the Federal Register.

DATES: Tuesday, March 20, 2001, 8:00

a.m.–6:00 p.m.; Wednesday, March 21,

2001, 8:00 a.m.–5:00 p.m.

Public participation sessions will be

held on: Tuesday, March 20, 2001,

12:15–12:30 p.m, 5:45–6:00 p.m.;

Wednesday, March 21, 2001, 11:45–

12:00 noon, 4:05–4:20 p.m.

These times are subject to change as

the meeting progresses. Please check

with the meeting facilitator to confirm

these times.

ADDRESSES: Doubletree Hotel

Downtown, 1800 Fairfax, Boise, Idaho

83702, (208) 344–7691.

FOR FURTHER INFORMATION CONTACT: Ms.

Wendy Lowe, INEEL Cab Facilitator,

Jason Associates Corporation, 477

Shoup Avenue, Suite 205, Idaho Falls,

ID 83402, Phone (208) 522–1662 or visit

the Board’s Internet home page at http:/

/www.ida.net/users/cab.

SUPPLEMENTARY INFORMATION:

Purpose of the Board: The purpose of

the Board is to make recommendations

The Consumer Consent Provision in Section 101(c)(1)(C)(ii)

1

APPENDIX B: LIST OF CONTACTS

ACADEMIA

Becker, Shirley A., Florida Institute of Technology, Department of Engineering, Computer Science

Program

Braucher, Jean, University of Arizona College of Law, 

Clifford, Donald F., Jr., University of North Carolina School of Law

Effross, Walter, American University College of Law

Hillman, Robert A., Cornell University School of Law

Kobayashi, Bruce, George Mason University Law School

Koopman, Philip, Carnegie Melon University

McManis, Charles, Washington University Law School

Perritt, Henry H., Dean, Chicago Kent College of Law

Pierce, Richard, George Washington University

Post, David, Temple Law School

Rachlinski, Jeffrey, Cornell University School of Law

Reichman, Jerome H., Duke University School of Law

Reidenberg, Joel R., Fordham University

Reitz, Curtis R., University of Pennsylvania Law School

Ribstein, Lawrence, George Mason University Law School

Rice, David, Roger Williams University School of Law, 

Schmidt, Jim, San Jose State University

Wheeler, Michael, Harvard Business School

Winn, Jane Kaufman, Southern Methodist University School of Law

GOVERNMENT

Federal:

Federal Communications Commission, Wireless Telecommunications Bureau

Federal Reserve System, Board of Governors, Division of Consumer & Community Affairs

State:

Connecticut, Office of Attorney General

Maryland, House of Delegates

Maryland, Office of Attorney General

New York, Office of Attorney General

North Carolina, Office of Attorney General

Washington, Office of Attorney General, Consumer Protection Division, Internet Bureau

State groups:

National Association of Attorneys General

National Conference of Commissioners on Uniform State Law

LEGAL PROFESSION

American Bar Association, Subcommittee on Electronic Commerce

Law Firms:

Akin, Gump, Strauss, Hauer & Feld

Arent, Fox, Kintner, Plotkin & Kahn
Electronic Signatures in Global and National Commerce Act

2

Bingham Dena, LLP

Callister, Nebeker & McCullough

Clifford, Chance, Rogers & Wells

Collier, Shannon, Scott

Fried, Frank, Harris, Shriver & Jacobson

Goodwin, Procter & Hoar

Hall, Dickler, Kent, Goldstein & Wood

Hogan & Hartson

Holland & Knight

Keller & Heckman

Morrison & Foerster

Pillsbury Winthrop

Piper, Marbury, Rudnick & Wolfe

Shook, Hardy & Bacon

Wiley, Rein & Fielding

Wilmer Cutler & Pickering

Individual Attorneys:

Chow, Steven Y., Esq.

Dayanim, Benjamin, Esq.

Kunze, Carol A., Esq.

Sarna, Shirley, Esq.

CONSUMER GROUPS/NON-PROFITS

AARP

CATO Institute

Center for Democracy and Technology

Center For Media Education

Consumer Action

Consumer Alert

Consumer Federation of America

Consumers International

Consumer Project on Technology

Consumers Union

Council of Better Business Bureaus

BBB Online Privacy

National Advertising Division

Electronic Privacy Information Center

Global Public Policy

Global Telecommunications Policy

Internet Consumers Organization

Internet Education Foundation

Internet Law & Policy Forum

Internet Public Policy Network

National Association of Consumer Agency Administrators

National Consumer Law Center
The Consumer Consent Provision in Section 101(c)(1)(C)(ii)

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National Consumers League

National Consumer Coalition

Privacy Foundation

Privacy Right, Inc.

U.S. Public Interest Research Group

World Wide Web Consortium

TRADE ASSOCIATIONS

American Advertising Federation 

American Association of Advertising Agencies

American Bankers Association

American Council of Life Insurers

American Electronics Association

Association of National Advertisers

Business Software Alliance

Cellular Telecommunications Industry Association

Commercial Internet eXchange Association

Direct Marketing Association, Inc

Direct Selling Association.

Electronic Financial Services Council

Electronic Retailing Association

Grocery Manufacturers of America

Information Technology Industry Council 

Interactive Digital Software Association

ITAA

Investment Company Institute

National Auto Dealers Association

North American Securities Administrators Association

Promotion Marketing Association, Inc.

Software & Information Industry Association

U.S. Chamber of Commerce (eCommerce & Internet Technology)

U.S. Council for International Business

U.S. Telecom Association

Wireless Advertising Association

Wireless Location Industry Association (AdForce Everywhere)

BUSINESSES

24/7 Media, Inc.

Adforce Everywhere

AlphaTrust

American Express

America Online, Inc. 

American Telecast Corporation

AT&T Labs

AT&T Wireless Services, Inc.
Electronic Signatures in Global and National Commerce Act

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Aether Systems, Inc., Software Product Division

Banc One Corporation

Bankers Roundtable

bizrate.com

Blitz! Media, Inc. (The Upsell Experts)

Cable & Wireless

CACI

California Digital Library

Capital One Services, Inc.

CertifiedMail.com

ClickaDeal.com

Clicksure

Columbia House

Compaq

Price Waterhouse

CommerceNet 

Compaq Computer

Crosswalk.com

Darden Communications

Disney

Diversinet

Edventure Holdings

E-Lock Technologies, Inc.

Entrust Technologies

Expedia.com

Fannie Mae

Fiderus Strategic Security and Privacy Services

FitnessQuest

Forrester Research, Inc.

Gateway, Inc.

Grey Matter, LLC

Hewlett Packard

IBM, Pervasive Computing Division

IDCide

IDQualified.com

Ignition

iLumin Corporation

Infotech Strategies

Intel Corporation, Security Technology Lab

Invertix Corporation

Leo Burnett Company

Leslie Harris & Associates

Lot21, Inc.

Lucent Technologies

MARS, Inc.
The Consumer Consent Provision in Section 101(c)(1)(C)(ii)

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MEconomy, Inc.

Metricomn

Microsoft Corporation

Mitretek Systems, Inc.

NationsBank Corporation

Network Solutions

Nextel Communications, Inc.

Nortel

One Accord Technologies

PenOp, Inc.

Persona, Inc.

Podesta.com

PricewaterhouseCoopers, LLP

Proctor & Gamble

Prudential Securities

PSINet

QUALCOMM, Inc.

QVC

SAFEcertified.com, Inc.

Sallie Mae

Samsung Electronics

Charles Schwab & Associates

Security Software Systems

Silver Platter Information, Inc.

Simon Strategies

Sprint PCS

Square Trade

State Farm Insurance

Stewart & Stewart

Sun Microsystems Computer Corp.

Terra Lycos

Time Warner, Inc.

True Position, Inc.

TRUSTe

ValiCert

Van Scoyoc Associates, Inc.

VeriSign

Verizon

Verizon Wireless

Vindigo Company

Visa U.S.A., Inc.

Warner Lambert

WindWire

Wireless Internet and Mobile Computing

World Wide Marketing - iXL
Electronic Signatures in Global and National Commerce Act

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Xypoint Corporation

Yahoo!

Zero-Knowledge Systems, Inc.

MEDIA

Privacy Times

The Wall Street Journal
The Consumer Consent Provision in Section 101(c)(1)(C)(ii)

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APPENDIX C: LIST OF COMMENTERS AND ACRONYMS

ACRONYM COMMENTER

ACLI American Council of Life Insurers

AIA American Insurance Association

Baker & McKenzie Baker & McKenzie

b4bpartner b4bpartner Inc.

CT AG Richard Blumenthal, Connecticut Attorney General

California California Department of Consumer Affairs

Crocker Thomas E. Crocker 

CU Consumers Union

CF Customers Forever, LLC

Dayanim Behnam Dayanim

DST Digital Signature Trust Co.

EFSC** Electronic Financial Services Council

E*Trade E*Trade Bank

Fidelity Fidelity Investments

GAO U.S. General Accounting Office

Greenfield Michael M. Greenfield

Household Household Bank (Nevada), N.A., et al.

iLumin iLumin Corporation

ICI Investment Company Institute

Mandy David Mandy, for Authentidate

NACAA National Association of Consumer Agency Administrators

NCLC** National Consumer Law Center

NewRiver NewRiver, Inc.

Notaries Pennsylvania Association of Notaries

SIA Securities Industry Association

Selwood Selwood Research

Silanis Silanis Technology, Inc.

SIIA Software & Information Industry Association

VeriSign VeriSign Corporation

Visa Visa U.S.A., Inc.

Wachovia Wachovia Corporation, et al.

Winn Jane Kaufman Winn

Yen** Elizabeth C. Yen, Esq.

Yuroka Yuroka

** Denotes that commenter also submitted a supplemental comment after the Public Workshop. 

References in the Report to supplemental comments will be cited as [Acronym] Supp. at [page].
Electronic Signatures in Global and National Commerce Act
The Consumer Consent Provision in Section 101(c)(1)(C)(ii)

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APPENDIX D: WORKSHOP AGENDA

Federal Trade Commission

Federal Trade Commission and National Telecommunications and

Information Administration, Department of Commerce

Esign Public Workshop

April 3, 2001

FTC Headquarters, Room 432, 600 Pennsylvania Ave., Washington D.C.

This workshop is part of the Federal Trade Commission ("FTC") and the National Telecommunications and Information

Administration's ("NTIA") effort to gather information to report to Congress on the benefits and burdens of § 101(c)(1)(C)(ii) of the

Electronic Signatures in Global and National Commerce Act ("ESIGN") which authorizes the use of an electronic record to send

legally required information to consumers if the consumer consents or confirms consent "in a manner that reasonably demonstrates

that they can access the information." Congress mandated this report under § 105(b) of ESIGN and required the submission of this

study by June 30, 2001.

Through this workshop we hope to advance our understanding of the benefits and burdens to businesses and consumers resulting

from the consumer consent provision of § 101(c)(1)(C)(ii). The workshop will consist of moderated round table discussions with

representatives from industry, government, consumer advocate groups and other interested parties. We hope to foster discussion

about best practices in obtaining electronic consent and to allow workshop participants to demonstrate their best practices, and the

technologies that are available for companies to obtain consumer consent. 

Technology Exhibits: Starting at 12:00p.m. and continuing until the end of the day, attendees may visit technology exhibits in Room

532.

The forum is open to the public, and there is no formal registration process for those wishing to attend.

AGENDA

8:30 - 9:00 Registration

9:00 - 9:05 Opening remarks

Jodie Bernstein, Director, Bureau of Consumer Protection, Federal Trade Commission

9:05 - 9:30 Setting the Stage: What are the Issues?

Moderator:

Eileen Harrington, Associate Director, Bureau of Consumer Protection, Federal Trade

Commission

This session will identify the relevant issues regarding § 101(c)(1)(C)(ii) of ESIGN, explore

the areas of consensus, controversy and disagreement, and set the stage for the rest of the

day's discussion.
Electronic Signatures in Global and National Commerce Act

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Panelists:

Margot Saunders, National Consumer Law Center (NCLC)

Jerry Buckley, Counsel for Electronic Financial Services Council (EFSC)

Benham Dayanim, Paul, Hastings, Janofsky & Walker, LLP

9:30 - 10:30 Legal Issues

Moderator:

April Major, Attorney, Bureau of Consumer Protection, Federal Trade Commission

A moderated roundtable discussion to explore the legal issues that face all parties when

implementing the consumer consent provision found in § 101(c)(1)(C)(ii) of ESIGN.

Panelists:

Margot Saunders, National Consumer Law Center

Jerry Buckley, Counsel for Electronic Financial Services Council

Benham Dayanim, Paul, Hastings, Janofsky & Walker, LLP

Elizabeth Yen, Hudson Cook

Robert A. Wittie, Counsel for Investment Company Institute (ICI)

Jane Stafford, Wachovia Bank

Mark MacCarthy, Visa Payments Systems

Jeff Wood, Household Bank

10:30 - 10:45 Break

10:45 - 11:45 Technology Issues

Moderator:

Fran Nielson, PhD, Senior Computer Scientist, National Institute of Science and

Technology, U.S. Department of Commerce

Technical Expert:

William Burr, Manager, Security Technologies Group, Computer Security Division, NIST,

U.S. Department of Commerce

This moderated roundtable discussion will explore the technology issues and the available

software and computer technologies that enable companies to employ the consumer consent

provision.

Panelists:

Christopher Smithies, Selwood Research

Michael Laurie, Silanis Technology

Mark Bohannon, SIIA

Thomas Wells, b4bpartner

Virgina Gobats, NewRiver
The Consumer Consent Provision in Section 101(c)(1)(C)(ii)

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James Brandt, VeriSign

Jane Winn, Professor of Law, SMU

Dr. Bruce E. Brown, iLumin

Thomas Greco, Digital Signature Trust

Margot Saunders, NCLC

11:45 - 1:00 Lunch

1:00 - 3:00 Benefits and Burdens

Moderator:

Kathy Smith, Chief Counsel, National Telecommunications and Information Administration

(NTIA), U.S. Department of Commerce

Economists:

Keith Anderson, Bureau of Economics, Federal Trade Commission

Lee Price, Deputy Under-Secretary for Economic Affairs, Economics and Statistics

Administration, U.S. Department of Commerce

This moderated roundtable discussion will focus on the benefits and burdens to consumers

and businesses of ESIGN's consumer consent requirement, set forth in § 101(c)(1)(C)(ii).

The workshop will also explore whether the benefits outweigh the burdens.

Panelists:

Mark MacCarthy, Visa Payments System

Michael Laurie, Silanis Technology

Paul Gallagher, Fidelity

Elizabeth Yen, Hudson Cook

Jane Winn, Professor of Law, SMU

Gail Hillebrand, Consumers Union

Behnam Dayanim, Paul, Hastings, Janofsky & Walker, LLP

Thomas Wells, b4bpartner

John Buchman, E*Trade Bank

Jeremy Newman, Selwood Research

Margot Saunders, NCLC

Wendy Weinberg, NACAA

Jerry Buckley, EFSC

3:00 - 3:15 Break
Electronic Signatures in Global and National Commerce Act

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3:15 - 4:15 Best Practices

Moderator:

Eileen Harrington, Associate Director, Bureau of Consumer Protection, Federal Trade

Commission

This will be a moderated roundtable discussion from the standpoint of both businesses and

consumers. We will also explore whether similar best practices apply to all industries or

whether some are industry-specific.

Panelists:

Virginia Gobats, NewRiver

Gail Hillebrand, Consumers Union

Margot Saunders, NCLC

Robert A. Wittie, Counsel for ICI

Mark Bohannon, SIIA

Jeff Wood, Household Bank

Jane Stafford, Wachovia Bank

Dr. Bruce E. Brown, iLumin

Wendy Weinberg, NACAA

Paul Gallagher, Fidelity

4:15 - 4:55 Public Participation

Public attendees will have an opportunity to ask questions and offer insight on the day's

dialogue.

4:55 - 5:00 Closing: What's next?

U.S. Department of Commerce
The Consumer Consent Provision in Section 101(c)(1)(C)(ii)

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APPENDIX E: WORKSHOP PARTICIPANTS

1. b4bpartner, Inc. (Thomas Wells)

2. Consumers Union (Gail Hillebrand)

3. Behnam Dayanim, Esq.

4. Digital Signature Trust (Thomas Greco)

5. Electronic Financial Services Council (Jerry Buckley)

6. E*Trade Bank (John Buchman)

7. Fidelity Investments (Paul Gallagher)

8. Household Bank (Jeff Wood)

9. Investment Company Institute (Robert A. Wittie)

10. iLumin Corporation (Dr. Bruce E. Brown)

11. National Association of Consumer Agency Administrators (Wendy Weinberg)

12. National Consumer Law Center (Margot Saunders)

13. NewRiver, Inc. (Virginia Gobats)

14. Selwood Research (Christopher Smithies, Jeremy Newman)

15. Software & Information Industry Association (Mark Bohannon)

16. Silanis Technology, Inc. (Michael Laurie)

17. VeriSign Corporation (James Brandt)

18. Visa (Mark MacCarthy)

19. Wachovia Corporation (Jane Stafford)

20. Jane Kaufman Winn, Professor of Law

21. Elizabeth C. Yen, Esq.
Electronic Signatures in Global and National Commerce Act