THE HEADS OF DEPARTMENTS AND AGENCIES
Guidance on Implementing the Electronic Signatures in Global and National
This document transmits
OMB guidance to Executive Agencies regarding the interpretation and implementation
of the Electronic Signatures in Global and National Commerce Act ("E-SIGN")
(Public Law 106-229) enacted on June 30, 2000. E-SIGN eliminates legal
barriers to the use of electronic technology to form and sign contracts,
collect and store documents, and send and receive notices and disclosures.
Under E-SIGN, companies
can contract online to buy and sell a broad array of products and services.
Businesses can use servers the size of a laptop
to collect and store transaction records that once filled up vast
warehouses. Consumers can buy insurance, get a mortgage, or open a brokerage
account on-line, without waiting for physical documents to be mailed back
and forth. E-SIGN will offer improved efficiencies in U.S. markets; this
historic legislation will help to bring the full benefits of electronic
commerce to our economy. The government will do its part to implement
E-SIGN in a manner that best achieves the legislations goals.
barriers to electronic commerce, while also providing consumers with protections
equivalent to those available in the world of paper-based transactions.
The Act makes clear that no person is required to use electronic records,
signatures, or contracts. Indeed, E-SIGN requires that a consumer affirmatively
consent to the use of electronic notices and records. Prior to consenting,
the consumer must receive notice of his or her rights. Moreover, the consumer
must provide the affirmative consent electronically, in a manner that
reasonably demonstrates that the consumer can access the electronic records
that are the subject of the consent.
E-SIGN applies broadly
to Federal and state statutes and regulations governing private sector
(including business-to-business and business-to-consumer) activities.
The Act generally covers legal requirements that information be disclosed
in private transactions. It also requires that agencies generally permit
private parties to retain records electronically. The government may establish
appropriate performance standards for the accuracy, integrity, and accessibility
of records retained electronically, to ensure compliance with applicable
laws and to guard against fraud.
and requirements that involve information, but do not relate to business,
commercial, or consumer transactions, are not within the scope of this
legislation. Instead they are addressed by the Government Paperwork Elimination
Act (GPEA). Certain laws and regulations involve both GPEA and E-SIGN,
especially with respect to record retention requirements in agency regulations
that relate to business, consumer and commercial transactions. The attached
guidance discusses this interaction:
A general summary
of the dates when E-SIGN provisions become effective:
- Most of E-SIGN
is effective as of October 1, 2000.
- Certain provisions
relating to government record retention requirements become effective
on March 1, 2001, unless an agency by that date has otherwise announced
or initiated a rulemaking on a record retention requirement. In the
latter case, the law is effective for that record retention requirement
on June 1, 2001.
- For loan guarantees,
mortgage insurance, or commitments for such transactions, E-SIGN applies
only to transactions entered into on or after June 30, 2001, and to
loans or mortgages made, insured, or guaranteed by the United States
Government on or after June 30, 2001.
- E-SIGN establishes
specific effective dates for consumer provisions as they relate to the
student loan programs of the Education Department.
These effective dates
are rapidly approaching and agencies should take all steps necessary to
implement this law. Agencies should work with their customers and their
regulated communities to help them understand the scope of this law, through
appropriate outreach strategies. Agencies should also review recordkeeping
and regulatory requirements to identify revisions necessary to ensure
proper program oversight.
The attached OMB
guidance was developed with substantial input from the agencies most involved
in the enactment of E-SIGN: the Departments of Commerce, Treasury, and
Justice, working with the National Economic Council. This guidance is
designed to aid in Federal agency implementation of E-SIGN. The guidance
contains three parts: (1) a short summary of the law; (2) a description
of specific steps agencies should take to comply with the law; and (3)
a detailed description of the laws requirements, including illustrative
E-SIGN is complex
and has wide-ranging implications. Accordingly, the guidance covers many
areas. It is essential that agencies become familiar with the Act and
determine how it will affect activities within their domain.
Should you need additional
information or have general questions about this guidance, please contact
Jonathan Womer in the Office of Management and Budget at 395-3785 or email@example.com.
Any questions related to specific legal issues regarding this guidance
may be referred to the Justice Department at ESIGN@usdoj.gov; specific
questions about the legislative history of E-SIGN may be referred to the
Commerce Department at ESIGN@doc.gov.