April 10, 2001
Attachment: E-Sign article-Clean.DOC [posted here in PDF 206K]
I hereby submit as a comment in the above proceeding my article "The E-Sign Act: In Facilitation of E-Commerce," which was published in Mealey's Cyber Tech Litigation Report (March 2001, Vol 3, No. 1). Although I was unable to participate in the April 3 workshop because of my work and travel schedule, I understand that you will accept comments filed after the workshop.
I am a partner in the law firm of Alston & Bird LLP. My involvement with the E-Sign Act began over four years ago when I represented Citigroup in connection with a predecessor version of the Act in the 105th Congress. I subsequently represented Charles Schwab and Co., Inc. in all aspects of the development and legislative consideration of E-Sign legislation in the 106th Congress, including the E-Sign Act and alternative measures that originated in the Senate. I also have advised a number of clients on implementation of the E-Sign Act in the nine months following its enactment and therefore am familiar with the types of questions industry is asking and wrestling with as they try to comply with the Act. However, any views I express in my article are strictly my own and do not reflect the positions of any client or of Alston & Bird LLP.
There is discussion and analysis of the consumer consent provisions at the paragraph designated "Section 101(c)" in the article's section-by-section analysis of the Act. The analysis raises a number of questions that I would have raised orally had I participated in the workshop. It should be clear from the article that there are a multitude of vague and ambiguous phrases and standards in the consumer consent provisions, as well as in the Act generally, which render it unnecessarily difficult to comply with and which produce potentially absurd results-- unless businesses engaging in electronic commerce are permitted to operate under commonsense interpretations and applications of the statutory language.
In addition, the consumer consent provisions cannot be viewed in a vacuum but must be read in conjunction with the pre-emption and agency recordkeeping provisions of the Act (Sections 102 and 104, respectively) in order to understand their full import. I therefore respectfully direct your attention to the complete analysis of the Act in my article.
Thomas E. Crocker
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