Questions about Electronic Signature Bill: Will Everyone Be Able to Participate?
Updates to commentary - 6/21/00
By Cynthia D. Waddell
On Wednesday, June 14, the House will vote on the Electronic Signatures in Global and National Commerce Act (Engrossed House Amendment) S. 761 ( http://www.house.gov/floor/thisweek.htm ). According to Chairman Tom Bliley (R-VA) of the House Committee on Commerce, “Electronic signatures and records will help grow the digital economy by giving American consumers greater confidence in their online business transactions. This is one of the most important steps Congress can take to help foster the growth of the digital economy.” See June 9 News Release by the House Committee on Commerce.
This Bill is historic in that it seeks to overcome barriers to contract formation on the web. But there are significant practical and legal questions that have not been addressed and so this brief commentary seeks to highlight those issues for discussion and attention. Citations to the applicable Bill section is posted after each discussion in this commentary.
Of particular concern are consumers with disabilities and their ability to enter into contracts on the web. For a person with a visual disability to access an electronic contract, the document needs to be coded for accessible web design when it is created. In general, S. 761 EAH (Engrossed House Amendment) states that the legal effect, validity, or enforceability of the electronic contract shall not be denied because of the type or method of the electronic record selected by the parties. Does this mean that an electronic contract not coded for accessibility could still be enforceable even when the consumer did not know they could not read portions of the contract? Sec. 101(b)(1)(B)
Moreover, how can a blind person consent to a contract when parts of it may be hidden from their assistive computer technology (i.e., screenreader or text-browser)? Consumers with visual disabilities could conceivably consent to the contract not knowing that parts of the contract were not coded for accessibility. Sec. 101(b)(2)(A)(i)
Prior to consenting to a contract, the consumer is to be provided with a statement of hardware and software needed to access and retain the electronic contract. This feature will not overcome the necessity of creating or coding an accessible web design contract. Unless the electronic record or contract is itself constructed with accessible web design elements, it will be useless to indicate what hardware or software is needed to access the electronic contract. The efforts of the World Wide Web Consortium (W3C) Web Accessibility Initiative ( http://www.w3.org/WAI ) as well as the current U.S. Access Board Section 508 Rulemaking ( http://www.access-board.gov/RULES/508nprm.htm ) addressing specifications for accessible web design is evidence of this problem. Sec.101(b)(2)(A)(ii)
Perhaps a greater concern for anyone, regardless of disability, is the requirement that the consumer consent to the hardware and software necessary to access and retain the electronic contract. What is the impact of this feature in the Bill? Does this mean that cell phones and personal digital assistants will not be able to access the content of the contract? Why does the Bill not embrace accessible web design so that the widest audience of consumers can benefit from electronic contracts?
Even if the electronic contract is capable of review, retention and printing by the consumer if the hardware and software are utilized, will the consumer have the particular hardware and software necessary to access the content of the contract? Sec. 101(b)(2)(B)
And what is meant by accessibility? The Bill requires that the contract remain accessible for later reference, transmission and printing. The definitions in the Bill do not define accessibility. Sec. 101(c)(1)
Of particular interest is the statement that a state statute or other rule of law may not supercede this law if it discriminates in favor of or against a specific technology, process or technique of creating the contract. Again, what about the benefits of accessible web design in the creation of the electronic contract? Sec. 102(b)(1)
As mentioned above, current rulemaking by the U.S. Access Board under Section 508 of the Rehabilitation Act requires the creation of accessible web content so that people with disabilities can participate in the digital economy. How will this be impacted?
Although Section 103 has specific exclusions allowing for federal agency requirements that records be filed or maintained in a specific standard, the language in the Bill does not give an exclusion for the federal requirements for the creation of the document, ie accessible web design. Sec. 103(a)(4)
Even the definition of "record" includes the requirement that it be "retrievable in perceivable form." What do we do with electronic contracts where a person without a visual disability can perceive the contract but a person with a disability cannot? Sec. 105 (5)
Lastly, Section 201 addresses the treatment of electronic signatures in interstate and foreign commerce. There are references to the use of electronic records in the global market. How will this Bill create issues with those countries that have adopted accessible web design requirements?
Some food for thought. What do you think?
I have now read the final version of the Bill as it is being sent to the President for signature. As it stands, my commentary is still correct, except that my cites to Bill Sections are now incorrect due to the reworking of the Bill. Interested readers should just disregard the cites in the commentary. The full version of the bill is found at http://www.congress.gov and then type in S761 to get the Bill going to the President.
However, the final version of the Bill has some additional twists:
Next, consumers must consent "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." Again, there is no assurance that the electronic form is in an accessible format. A consumer could still not know what they are consenting to and actually believe they have "seen" all the terms of the contract. See Sec. 101(c)(1)(C)(ii).
As in the previous Bill version, prior to consenting the consumer "is provided with a statement of the hardware and software requirements for access to and retention of the electronic records." See 101(c)(1)(C)(i). The Bill authors are unaware of the fact that both the contract itself and the consent communication could not be accessible. The "effective communication" requirements of the Americans with Disabilities Act of 1990 should be triggered here. Again, unless the electronic communication is coded for accessible web design, no "effective communication" will occur and the consumer could be consenting to unknown contract terms.
Irregardless of this interpretation, however, is the fact that the Bill also states that even if the consumer was unable to obtain confirmation of consent, the legal effectiveness of the electronic contract or the enforceability of the contract will not be diminished. See Sec. 101(c)((3).
The Bill also directs that within 12 months of the enactment of the Bill, i.e.. October 1, 2000, the Secretary of Commerce shall conduct an inquiry regarding the effectiveness of the delivery of electronic records to consumers via the U.S. Postal Service and private express mail service. This survey is to be the basis of the report to Congress. See Sec.105. There is no assurance that the survey itself will be in alternative formats or meet the auxiliary aids and services requirements of the Americans with Disabilities Act of 1990.
Lastly, it appears that the Federal and State regulatory agencies are limited in their interpretation authority and cannot ensure accessible web design as mandated by the Americans with Disabilities Act of 1990 as well as Section 508 of the Rehabilitation Act because the Bill prohibits creating a method or giving legal effect to a "technical specification for performing the functions of creating . . . electronic records or electronic signatures." See Sec. 104(b)(2). International protocols and standards setting currently developed by the World Wide Web Consortium and other entities have been ignored.
The benefits of accessible web design for universal access, whether it be via the web, wireless, telephone, pda's or other information appliances will be frustrated. Developing countries will find that this U.S. centric approach to contract formation on the web will not bring the accessible web benefit of enabling low technology to access high technology.
Either the Bill should be amended or challenged in court.
Cynthia D. Waddell
Copyright © 2000 Cynthia Waddell
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