Questions about Electronic Signature Bill: Will Everyone Be Able to Participate?

All,

The following commentary will be posted shortly on the www.icdri.org web
site.  It has to do with the new law that will be voted on tomorrow in the
US Congress.  It is called The Electronic Signatures in Global and National
Commerce Act (Engrossed House Amendment) S. 761 Cynthia Waddell one of the
foremost legal experts on the accessibility of electronic and Information
technology raises some very serious questions.

Sincerely,

Mike Burks

The commentary is reproduced in full below:


Questions about Electronic Signature Bill: Will Everyone Be Able to
Participate?
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?

Cynthia D. Waddell

Received on Tuesday, 13 June 2000 19:33:31 UTC