XML e-signature requires that
before electronic records can be used to meet any writing requirement
"relating to a transaction," including written disclosure requirements,
a consumer must have "affirmatively consented" to the
use of electronic
records. Note that if a given disclosure does not have to be in
writing pursuant to underlying law, it is not subject to XML
e-signature's consumer consent rules.
The consumer must consent to the use of
electronic records to fulfill
writing requirements after having been informed which "identified
categories of records" may be sent electronically and the hardware and
software requirements for accessing and retaining the XML e-signature
disclosures.
XML e-signature preempts state laws
that do not recognize
electronic signatures and address private-sector interstate or
foreign consumer, commercial or financial transactions dealing with real
property, personal property or services. It also allows states to
establish standards and formats for records filed with state agencies.
The National Conference of Commissioners on Uniform State Laws has
approved model legislation, the
Uniform Electronic Transactions Act (UETA),
meeting the requirements to avoid preemption. To date, 40 states and the
District of Columbia have adopted UETA, XML e-signature.
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