E-SIGN Modernization Act of 2020

II Calendar No. 638 116TH CONGRESS 2D SESSION S. 4159 To amend the Electronic Signatures in Global and National Commerce Act to accommodate emerging technologies. IN THE SENATE OF THE UNITED STATES JULY 2, 2020 Mr. THUNE (for himself, Mr. MORAN, Mr. YOUNG, and Mrs. BLACKBURN) in- troduced the following bill; which was read twice and referred to the Com- mittee on Commerce, Science, and Transportation DECEMBER 15, 2020 Reported by Mr. WICKER, with an amendment [Strike out all after the enacting clause and insert the part printed in italic] A BILL To amend the Electronic Signatures in Global and National Commerce Act to accommodate emerging technologies. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘E-SIGN Modernization 4 Act of 2020’’. 5 VerDate Sep 11 2014 01:49 Dec 16, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6401 E:\BILLS\S4159.RS S4159 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 4159 RS SEC. 2. REQUIREMENTS FOR CONSENT TO ELECTRONIC 1 DISCLOSURES. 2 (a) IN GENERAL.—Title I of the Electronic Signa- 3 tures in Global and National Commerce Act (15 U.S.C. 4 7001 et seq.) is amended— 5 (1) in section 101(c) (15 U.S.C. 7001(c))— 6 (A) in paragraph (1), by striking subpara- 7 graphs (C) and (D) and inserting the following: 8 ‘‘(C) the consumer, prior to consenting, is 9 provided with a statement of the hardware and 10 software requirements for access to and reten- 11 tion of the electronic records; and 12 ‘‘(D) after the consent of a consumer in 13 accordance with subparagraph (A), if a change 14 in the hardware or software requirements need- 15 ed to access or retain electronic records creates 16 a material risk that the consumer will not be 17 able to access or retain a subsequent electronic 18 record that was the subject of the consent, the 19 person providing the electronic record provides 20 the consumer with a statement of— 21 ‘‘(i) the revised hardware and soft- 22 ware requirements for access to and reten- 23 tion of the electronic records; and 24 ‘‘(ii) the right to withdraw consent 25 without the imposition of any fees for such 26 VerDate Sep 11 2014 01:49 Dec 16, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6401 E:\BILLS\S4159.RS S4159 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 4159 RS withdrawal and without the imposition of 1 any condition or consequence that was not 2 disclosed under subparagraph (B)(i).’’; 3 (B) by striking paragraph (3); and 4 (C) by redesignating paragraphs (4), (5), 5 and (6) as paragraphs (3), (4), and (5), respec- 6 tively; and 7 (2) by striking section 105 (15 U.S.C. 7005). 8 (b) RULE OF CONSTRUCTION.—Nothing in this sec- 9 tion, or the amendments made by this section, may be con- 10 strued as affecting the consent provided by any consumer 11 under section 101(c) of the Electronic Signatures in Glob- 12 al and National Commerce Act (15 U.S.C. 7001(c)) before 13 the date of enactment of this Act. 14 SECTION 1. SHORT TITLE. 15 This Act may be cited as the ‘‘E-SIGN Modernization 16 Act of 2020’’. 17 SEC. 2. REQUIREMENTS FOR CONSENT TO ELECTRONIC 18 DISCLOSURES. 19 (a) IN GENERAL.—Title I of the Electronic Signatures 20 in Global and National Commerce Act (15 U.S.C. 7001 et 21 seq.) is amended— 22 (1) in section 101(c) (15 U.S.C. 7001(c))— 23 (A) in paragraph (1), by striking subpara- 24 graphs (C) and (D) and inserting the following: 25 VerDate Sep 11 2014 01:49 Dec 16, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6203 E:\BILLS\S4159.RS S4159 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 4159 RS ‘‘(C) the consumer, prior to consenting, is 1 provided with a statement of the hardware and 2 software requirements for access to and retention 3 of the electronic records; and 4 ‘‘(D) after the consent of a consumer in ac- 5 cordance with subparagraph (A), if a change in 6 the hardware or software requirements needed to 7 access or retain electronic records creates a mate- 8 rial risk that the consumer will not be able to ac- 9 cess or retain a subsequent electronic record that 10 was the subject of the consent, the person pro- 11 viding the electronic record provides the con- 12 sumer with a statement of— 13 ‘‘(i) the revised hardware and software 14 requirements for access to and retention of 15 the electronic records; and 16 ‘‘(ii) the right to withdraw consent 17 without the imposition of any fees for such 18 withdrawal and without the imposition of 19 any condition or consequence that was not 20 disclosed under subparagraph (B)(i).’’; 21 (B) by striking paragraph (3); and 22 (C) by redesignating paragraphs (4), (5), 23 and (6) as paragraphs (3), (4), and (5), respec- 24 tively; 25 VerDate Sep 11 2014 01:49 Dec 16, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6203 E:\BILLS\S4159.RS S4159 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 4159 RS (2) by striking section 105 (15 U.S.C. 7005); 1 and 2 (3) by redesignating sections 106 and 107 (15 3 U.S.C. 7006, 7001 note) as sections 105 and 106, re- 4 spectively. 5 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 6 (1) ECONOMIC GROWTH, REGULATORY RELIEF, 7 AND CONSUMER PROTECTION ACT.—Section 215(f)(2) 8 of the Economic Growth, Regulatory Relief, and Con- 9 sumer Protection Act (42 U.S.C. 405b(f)(2)) is 10 amended by striking ‘‘section 106 of the Electronic 11 Signatures in Global and National Commerce Act (15 12 U.S.C. 7006)’’ and inserting ‘‘section 105 of the Elec- 13 tronic Signatures in Global and National Commerce 14 Act’’. 15 (2) ELECTRONIC FUND TRANSFER ACT.—Section 16 920(g)(2)(A) of the Electronic Fund Transfer Act (15 17 U.S.C. 1693o–1(g)(2)(A)) is amended by striking 18 ‘‘section 106(2) of the Electronic Signatures in Global 19 and National Commerce Act (15 U.S.C. 7006(2))’’ 20 and inserting ‘‘section 105(2) of the Electronic Signa- 21 tures in Global and National Commerce Act’’. 22 (3) ELECTRONIC SIGNATURES IN GLOBAL AND 23 NATIONAL COMMERCE ACT.—The Electronic Signa- 24 VerDate Sep 11 2014 01:49 Dec 16, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6203 E:\BILLS\S4159.RS S4159 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 4159 RS tures in Global and National Commerce Act (15 1 U.S.C. 7001 et seq.) is amended— 2 (A) in section 201(a)(2) (15 U.S.C. 3 7021(a)(2)), by striking ‘‘section 106’’ and in- 4 serting ‘‘section 105’’; and 5 (B) in section 301(c) (15 U.S.C. 7031(c)), 6 by striking ‘‘section 106’’ and inserting ‘‘section 7 105’’. 8 (c) RULE OF CONSTRUCTION.—Nothing in this section, 9 or the amendments made by this section, may be construed 10 as affecting the consent provided by any consumer under 11 section 101(c) of the Electronic Signatures in Global and 12 National Commerce Act (15 U.S.C. 7001(c)) before the date 13 of enactment of this Act. 14 VerDate Sep 11 2014 01:49 Dec 16, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6203 E:\BILLS\S4159.RS S4159 pamtmann on DSKBC07HB2PROD with BILLS VerDate Sep 11 2014 01:49 Dec 16, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6203 E:\BILLS\S4159.RS S4159 pamtmann on DSKBC07HB2PROD with BILLS Calendar No. 638 116TH CONGRESS 2D SESSION S. 4159 A BILL To amend the Electronic Signatures in Global and National Commerce Act to accommodate emerg- ing technologies. DECEMBER 15, 2020 Reported with an amendment VerDate Sep 11 2014 01:49 Dec 16, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6651 Sfmt 6651 E:\BILLS\S4159.RS S4159 pamtmann on DSKBC07HB2PROD with BILLS