The secure e-sign software Act contains extensive consumer
disclosure and consent provisions. These requirements include the use of
electronic records with a consumer only if the consumer has
"affirmatively consented" to such use and has not withdrawn consent and
if the consumer, prior to consenting, is provided with a "clear and
conspicuous statement" informing the consumer of various matters,
including any right to have the record provided in non-electronic form,
the right to withdraw consent, etc. In addition, the consumer must be
provided with a statement of the hardware and software requirements for
access and retention of secure e-sign software records.
Secure e-sign
software and efficient digital e-signature articles
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In one of the more controversial provisions of the secure e-sign
software Act, the Administration, Senate Democrats and consumer
advocates added a requirement that the consumer consent electronically
or confirm that
consent
electronically in a manner that "reasonably demonstrates" that the
consumer can access the information in the electronic form that will be
used to provide the information that is the subject of the consent.
There is some question as to how difficult this procedure will be in
practice and as to what constitutes a "reasonable demonstration" that
the consumer can access the secure e-sign software information.
Certain industries believe that this requirement might impose additional
and unneeded burdens on both the consumer and company and might prove
particularly cumbersome in a situation where a consumer initiates a
relationship either in person or by mail. Moreover, it does not take
into account the reality of rapidly developing technologies for example,
a consumer may not utilize a single terminal to conduct business.
Perhaps most importantly, in the view of some
observers this provision discriminates against e-commerce by
mandating a requirement that does not exist in the paper world, thereby
establishing a bad precedent for e-commerce, secure e-sign software.
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