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SEC. 102. (15 U.S.C. 7002) EXEMPTION TO PREEMPTION.
(a) IN GENERAL.-A State statute, regulation, or other rule of law may modify, limit, or supersede the provisions of section 101 with respect to State law only if such statute, regulation, or rule of law
(1) constitutes an enactment or adoption of the Uniform Electronic Transactions Act as approved and recommended for enactment in all the States by the National Conference of Commissioners on Uniform State Laws in 1999, except that any exception to the scope of such Act enacted by a State under section 3(b)(4) of such Act shall be preempted to the extent such exception is inconsistent with this title or title II, or would not be permitted under paragraph (2)(A)(ii) of this subsection; or
(2)(A) specifies the alternative procedures or requirements for the use or acceptance (or both) of electronic records or electronic signatures to establish the legal effect, validity, or enforceability of contracts or other records, if
(i) such alternative procedures or requirements are consistent with this title and title II; and
(ii) such alternative procedures or requirements do not require, or accord greater legal status or effect to, the implementation or application of a specific technology or technical specification for performing the functions of creating, storing, generating, receiving, communicating, or authenticating electronic records or electronic signatures; and
(B) if enacted or adopted after the date of the enactment of this Act, makes specific reference to this Act.
(b) EXCEPTIONS FOR ACTIONS BY STATES AS MARKET PARTICIPANTS. Subsection (a)(2X(A)(ii) shall not apply to the statutes, regulations, or other rules of law governing procurement by any State, or any agency or instrumentality thereof.
(C) PREVENTION OF CIRCUMVENTION.Subsection (a) does not permit a State to circumvent this title or title II through the imposition of nonelectronic delivery methods under section 8(b)(2) of the Uniform Electronic Transactions Act. SEC. 103. (15 U.S.C. 7003) SPECIFIC EXCEPTIONS.
(a) EXCEPTED REQUIREMENTS.—The provisions of section 101 shall not apply to a contract or other record to the extent it is governed by
(1) a statute, regulation, or other rule of law governing the creation and execution of wills, codicils, or testamentary trusts;
(2) a State statute, regulation, or other rule of law governing adoption, divorce, or other matters of family law; or
(3) the Uniform Commercial Code, as in effect in any State, other than sections 1-107 and 1-206 and Articles 2 and 2A.
(b) ADDITIONAL EXCEPTIONS.—The provisions of section 101 shall not apply to
(1) court orders or notices, or official court documents (including briefs, pleadings, and other writings) required to be executed in connection with court proceedings;
(2) any notice of
(A) the cancellation or termination of utility services (including water, heat, and power);
(B) default, acceleration, repossession, foreclosure, or eviction, or the right to cure, under a credit agreement secured by, or a rental agreement for, a primary residence of an individual;
(C) the cancellation or termination of health insurance or benefits or life insurance benefits (excluding annuities); or
(D) recall of a product, or material failure of a product, that risks endangering health or safety; or
(3) any document required to accompany any transportation or handling of hazardous materials, pesticides, or other toxic or dangerous materials. (c) REVIEW OF EXCEPTIONS.
(1) EVALUATION REQUIRED.-The Secretary of Commerce, acting through the Assistant Secretary for Communications and Information, shall review the operation of the exceptions in subsections (a) and (b) to evaluate, over a period of 3 years, whether such exceptions continue to be necessary for the protection of consumers. Within 3 years after the date of enactment of this Act, the Assistant Secretary shall submit a report to the Congress on the results of such evaluation.
(2) DETERMINATIONS.—If a Federal regulatory agency, with respect to matter within its jurisdiction, determines after notice and an opportunity for public comment, and publishes a finding, that one or more such exceptions are no longer necessary for the protection of consumers and eliminating such exceptions will not increase the material risk of harm to consumers, such agency may extend the application of section 101
to the exceptions identified in such finding. SEC. 104. (15 U.S.C. 7004) APPLICABILITY TO FEDERAL AND STATE
GOVERNMENTS. (a) FILING AND ACCESS REQUIREMENTS.-Subject to subsection (c)(2), nothing in this title limits or supersedes any requirement by a Federal regulatory agency, self-regulatory organization, or State regulatory agency that records be filed with such agency or organization in accordance with specified standards or formats. (b) PRESERVATION OF EXISTING RULEMAKING AUTHORITY.
(1) USE OF AUTHORITY TO INTERPRET.-Subject to paragraph (2) and subsection (c), a Federal regulatory agency or State regulatory agency that is responsible for rulemaking under any other statute may interpret section 101 with respect to such statute through
(A) the issuance of regulations pursuant to a statute;
(B) to the extent such agency is authorized by statute to issue orders or guidance, the issuance of orders or guidance of general applicability that are publicly available and published (in the Federal Register in the case of an
order or guidance issued by a Federal regulatory agency). This paragraph does not grant any Federal regulatory agency or State regulatory agency authority to issue regulations,
orders, or guidance pursuant to any statute that does not authorize such issuance.
(2) LIMITATIONS ON INTERPRETATION AUTHORITY.—Notwithstanding paragraph (1), a Federal regulatory agency shall not adopt any regulation, order, or guidance described in paragraph (1), and a State regulatory agency is preempted by section 101 from adopting any regulation, order, or guidance described in paragraph (1), unless
(A) such regulation, order, or guidance is consistent with section 101;
(B) such regulation, order, or guidance does not add to the requirements of such section; and
(C) such agency finds, in connection with the issuance of such regulation, order, or guidance, that
(i) there is a substantial justification for the regulation, order, or guidance;
(ii) the methods selected to carry out that purpose
(I) are substantially equivalent to the requirements imposed on records that are not electronic records; and
(II) will not impose unreasonable costs on the acceptance and use of electronic records; and
(iii) the methods selected to carry out that purpose do not require, or accord greater legal status or effect to, the implementation or application of a specific technology or technical specification for performing the functions of creating, storing, generating, receiving, communicating, or authenticating electronic records or
(A) ACCURACY, RECORD INTEGRITY, ACCESSIBILITY.Notwithstanding paragraph (2)(C)(iii), a Federal regulatory agency or State regulatory agency may interpret section 101(d) to specify performance standards to assure ad racy, record integrity, and accessibility of records that are required to be retained. Such performance standards may be specified in a manner that imposes a requirement in violation of paragraph (2)(C)(iii) if the requirement (i) serves an important governmental objective; and (ii) is substantially related to the achievement of that objective. Nothing in this paragraph shall be construed to grant any Federal regulatory agency or State regulatory agency authority to require use of a particular type of software or hardware in order to comply with section 101(d).
(B) PAPER OR PRINTED FORM.-Notwithstanding subsection (c)(1), a Federal regulatory agency or State regulatory agency may interpret section 101(d) to require retention of a record in a tangible printed or paper form if
(i) there is a compelling governmental interest relating to law enforcement or national security for imposing such requirement; and
(ii) imposing such requirement is essential to attaining such interest. (4) EXCEPTIONS FOR ACTIONS BY GOVERNMENT AS MARKET PARTICIPANT.–Paragraph (2)(C)(iii) shall not apply to the statutes, regulations, or other rules of law governing procurement by the Federal or any State government, or any agency or instrumentality thereof. (c) ADDITIONAL LIMITATIONS.—
(1) REIMPOSING PAPER PROHIBITED.—Nothing in subsection (b) (other than paragraph (3)(B) thereof) shall be construed to grant any Federal regulatory agency or State regulatory agency authority to impose or reimpose any requirement that a record be in a tangible printed or paper form.
(2) CONTINUING OBLIGATION UNDER GOVERNMENT PAPERWORK ELIMINATION ACT.-Nothing in subsection (a) or (b) relieves any Federal regulatory agency of its obligations under the Government Paperwork Elimination Act (title XVII of Public Law 105–277). (d) AUTHORITY TO EXEMPT FROM CONSENT PROVISION.
(1) IN GENERAL.-A Federal regulatory agency may, with respect to matter within its jurisdiction, by regulation or order issued after notice and an opportunity for public comment, exempt without condition a specified category or type of record from the requirements relating to consent in section 101(c) if such exemption is necessary to eliminate a substantial burden on electronic commerce and will not increase the material risk of harm to consumers.
(2) PROSPECTUSES.—Within 30 days after the date of enactment of this Act, the Securities and Exchange Commission shall issue a regulation or order pursuant to paragraph (1) exempting from section 101(c) any records that are required to be provided in order to allow advertising, sales literature, or other information concerning a security issued by an investment company that is registered under the Investment Company Act of 1940, or concerning the issuer thereof, to be excluded from the definition of a prospectus under section 2(a)(10)(A) of the Securities Act of 1933.
(e) ELECTRONIC LETTERS OF AGENCY.—The Federal Communications Commission shall not hold any contract for telecommunications service or letter of agency for a preferred carrier change, that otherwise complies with the Commission's rules, to be legally ineffective, invalid, or unenforceable solely because an electronic record or electronic signature was used in its formation or authorization. SEC. 105. (15 U.S.C. 7005) STUDIES.
(a) DELIVERY.-Within 12 months after the date of the enactment of this Act, the Secretary of Commerce shall conduct an inquiry regarding the effectiveness of the delivery of electronic records to consumers using electronic mail as compared with delivery of written records via the United States Postal Service and private express mail services. The Secretary shall submit a report to the Congress regarding the results of such inquiry by the conclusion of such 12-month period.
(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)(1XC)(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. SEC. 106. (15 U.S.C. 7006) DEFINITIONS. For purposes of this title:
(1) CONSUMER.—The term "consumer" means an individual who obtains, through a transaction, products or services which are used primarily for personal, family, or household purposes, and also means the legal representative of such an individual.
(2) ELECTRONIC.—The term “electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(3) ELECTRONIC AGENT.—The term “electronic agent" means a computer program or an electronic or other automated means used independently to initiate an action or respond to electronic records or performances in whole or in part without review or action by an individual at the time of the action or response.
(4) ELECTRONIC RECORD.—The term “electronic record” means a contract or other record created, generated, sent, communicated, received, or stored by electronic means.
(5) ELECTRONIC SIGNATURE.—The term “electronic signature” means an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.
(6) FEDERAL REGULATORY AGENCY.—The term “Federal regulatory agency” means an agency, as that term is defined in section 552(f) of title 5, United States Code.
(7) INFORMATION.—The term "information” means data, text, images, sounds, codes, computer programs, software, databases, or the like.
(8) PERSON.—The term “person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, governmental agency, public corporation, or any other legal or commercial entity.
(9) RECORD.—The term “record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(10) REQUIREMENT.-The term "requirement” includes a prohibition.