MICHAEL M. GREENFIELD
March 12, 2001
Ms. Sallianne Fortunato
Subject: ESIGN Study-- Comment P004102
I am writing to comment on the consent procedures in section 101(c)(1)(C)(ii) of the Electronic Signatures in Global and National Commerce Act.(1)
This Act, and section 101(c)(1)(C)(ii) in particular, are an excellent step in the direction of facilitating e-commerce while continuing to assure that consumers receive information that Congress and state legislatures have determined they should have. To this end, it is essential that Act continue to require that the consumer 's electronic consent to receiving information in electronic form "reasonably demonstrates that the consumer can access [it] in the electronic form" that the sender will use. This helps to ensure that differences in the communication systems of the sender and the recipient do not result in the failure of effective transmission.
I do not have empirical evidence of the operation of section 101(c), but I have identified several flaws in the statute that I believe should be addressed.
(1) Section 102(a)(1), which permits the states to modify, limit, or displace section 101, has caused confusion. Congress should clarify what I take to be its original intent that while the states may enact their own version of E-Sign, they should not be able to displace the protective provisions of E-Sign sections 101(c), (d), and (e).
(2) A new provision should be added to deal with changes of address. I recently had an experience with change of address in the physical world. As an educated, diligent consumer, I gathered the relevant information from my creditors and others, and I wrote them all of my impending change of address. Nevertheless, from time to time over the next six months I received mail addressed to my former residence and forwarded by the postal service. Despite my best efforts, I had failed to notify all my correspondents. I suspect that this phenomenon will be worse in the virtual world. Many consumers will switch to a new e-mail provider without officially terminating the old one. And even if the consumer does terminate his or her former service, the merchant may disregard any notification that the message has bounced back. The Act should be amended to state that an electronic communication is not effective unless it is opened or acknowledged, or unless it triggers an automatic communication that informs the sender that it has been opened. A provision like this would also address the needs of a consumer who assents to electronic communication but rarely goes on line and therefore does not regularly check to see if there are messages.
(3) The list of exemptions, for which electronic communication does not suffice, should be expanded slightly. The exemptions distinguish between foreclosure-like actions on real estate and other property. They should not. Repossession of an automobile or other property entails the dispossession of assets, and it should not occur on the basis of electronic notification. Similarly, the exemptions distinguish between different types of insurance, and they should not. Cancellation notices in connection with homeowner and automobile insurance should be required in the same form as notices of cancellation of life and health insurance. Each of these entails an imminent loss of assets, assets that are important enough to merit special attention, unlike, perhaps, a notification of a change in terms of a credit card account or bank account. In addition, Congress should consider adding an exemption for recall notices for products that entail a safety hazard.
E-Sign is a positive step for internet commerce. Those who are in control of designing and implementing the system properly have the burden of bearing the expense to ensure that the system affords appropriate protections for their customers.
Thank you for the opportunity to comment.
Michael M. Greenfield
1. I have been teaching and writing about the law of consumer transactions for 30 years. My experience encompasses numerous books and articles on consumer law, as well as service on the Federal Reserve Board's Consumer Advisory Council.