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Q. Is real consumer consent
required?
A:
Federal: Yes. Required for those notices which are required
by law.
UETA: Yes and no. Agreement is required for contracts
and notices, but it may be inferred from conduct.
Q. Must consent be electronic?
A:
Federal: Yes. Consent must be given or confirmed
electronically.
UETA: No. Consent may be given on paper for future
electronic communications.
Q. Are pre-consent disclosures
required?
A:
Federal: Yes. Disclosures must include 1) the types of
needed hardware and software; 2) how to request a paper copy and the
cost, if any; 3) how to update contact info, and 4) how to withdraw
consent.
UETA: No. No pre-consent disclosures.
Q. Can a recording of a phone call
replace a written notice?
A:
Federal: No. Does not permit oral communications or
recordings of oral communications to qualify as an electronic record.
UETA: Yes. A tape recording of a voice conversation is
an electronic record.
Q: Are any types of consumer notices
exempt?
A:
Federal: Yes. The federal Act exempts these consumer
notices:
Default, acceleration, repossession, foreclosure or eviction, or a right to cure, under a rental agreement or a mortgage on a principal residence
Cancellation or termination of health insurance or benefits, and of life insurance benefits (except annuities);
Product recall or material failure of a product that risks endangering health and safety.
101(3)(b)(2)
UETA: No. UETA leaves it to each state to decide what
consumer law provisions, if any, should be exempted. It is unclear
whether federal exemptions automatically apply in a state that has
enacted UETA. To avoid questions, a state which enacts UETA should
enact UETA exemptions to match the federal exemptions.
Exemptions from UETA which match the federal exemptions are not preempted. Section 102(a)(1).
Q: Does either statute contain a
loophole which allows posting rather than sending of notices required
by law?
A:
Federal: No. The federal statute defers to other law on
whether the information must be "provided" to the consumer or merely
"made available" to the consumer.
UETA: Unclear. Section 15 of UETA seems to create a
posting loophole by agreement of the parties, but the chair of the
UETA drafting committee stated in a forum of Attorneys General
consumer protection staff that UETA section 15, which allows posting,
was not intended to interfere with UETA section 8, which requires
sending. NCCUSL, the drafter of UETA, should clarify this in the
commentary to UETA.
Q: Do the federal consumer
protections apply if a state adopts UETA after the federal Act?
A:
Probably. The federal Act says that states "may" alter section
101 of the federal Act through passage of UETA "as approved and
recommended" by the NCCUSL in 1999, minus those exceptions
inconsistent with the federal Act. Section 102(a)(1). The federal
Act does not say that state passage of UETA automatically displaces
the federal Act.
It is likely that the part of section 101 Congress intended to
permit states to alter was section 101(a), the general statement of
electronic validity, rather than the more specific requirements such
as the consumer consent rules of section 101(c) or the document
retention and integrity rules of sections 101(d) and (e).
To avoid the need to litigate over the applicability of the
federal consumer protections after future enactments of UETA, a state
which enacts UETA after the effective date of the federal Act would
be wise to include intent language stating:
Nothing herein is intended to limit, modify, or supercede the requirements of section 101(c), (d), or (e) of the federal Electronic Signatures in Global and National Commerce Act.
Q: Can states add consumer
protections to the federal rules?
Yes, with some restrictions. Section 102(a)(2)(A) permits states
to modify, limit, or supercede section 101 of the federal Act by
specifying "the alternative procedures or requirements for the use or
acceptance (or both) of electronic records or electronic signatures
to establish the legal effect, validity, or enforceability of
contracts or other records" if the state rule is consistent with the
federal Act, does not give great legal status to some technologies
than to other technologies, and makes reference to the federal Act if
adopted after the enactment of the federal Act.
Prepared by:
Gail Hillebrand
Senior Attorney
Consumers Union
1535 Mission St.
San Francisco, CA 94103
415-431-6747
hillga@consumer.org
June 30, 2000
