In response to the increased importance of business-to-consumer electronic transactions, Congress ratified the Electronic Signatures in Global and National Commerce Act (ESIGN) on June 30, 2000. This act is meant to ensure the validity of electronic contracts and signatures in domestic and foreign commerce. Congress imposed certain requirements on e-commerce to safeguard consumer protection laws regarding consumers' rights to receive information in writing. A strength of the act is that it attempts to protect the consumer from fraud before it happens rather than provide remedies after the fact (FTC, 2001).
Consent
The ESIGN Act requires explicit consent or confirmation of the consumer in entering an electronic transaction to receive information electronically that a law requires to be in writing. The consent provision offers the consumer a chance to consider what she is agreeing to before confirming consent electronically, in a transaction that usually originates in a face-to-face setting (FTC, 2001).
Scope
The consumer should be advised on the scope of her consent. The provider of the electronic record should clarify if the consumer's consent applies to the particular transaction giving rise to the record or to specific categories of records that will be provided in the course of the relationship between the parties (ESIGN, 2000).
Options
The consumer should be advised whether she is entitled to have the records on paper or non-electronic form. The consumer should also be advised on the procedure for requesting paper or non-electronic records, and any fees involved should be made clear (ESIGN, 2000).
Access
The act stipulated that the consumer be advised on the hardware and software requirements for access and retention of electronic records before consenting. The consumer should also confirm that she can access the specific electronic form that is used in the transaction. After consent, if a change in hardware and software may pose a material risk in access and retention of records, the provider of the electronic record should furnish the consumer with a statement of revised hardware and software requirements (ESIGN, 2000).
Withdrawal
Before consenting, the consumer should be informed of the right to withdraw the consent and of any conditions and consequences of withdrawal including termination of relationship and applicable fees. The withdrawal procedures should be described. The consumer has the right to withdraw consent without imposition of additional conditions by the service provider if hardware or software changes create a material risk for access or retention of a subsequent electronic record (ESIGN, 2000).
Retention of Records
If the law requires that a contract or record relating to a transaction be retained, that requirement is met by retaining an electronic record of the information if it accurately reflects the information in the contract or other record; and remains accessible to all persons entitled access to the records (ESIGN, 2000).
