Letter Sent to Senate Asking the Senate to Instruct its Conferees to Support S. 761
March 10, 2000
The Honorable Trent Lott
United States Senate
Washington, DC 20510
RE: S.761 / H.R. 1714 - Conference Committee on Digital Signatures
Dear Senator Lott:
As the Conference Committee will soon meet to reconcile the differences between H.R. 1714 and S. 761, with regard to digital records and signatures, I respectfully request on behalf of the National Conference of State Legislatures (NCSL) that you instruct your Senate conferees to maintain their support for the Senate version, S. 761. The intent of the electronic signature legislation should be to ensure that electronic signatures and or records would be as acceptable as written signatures and records, a public policy which NCSL supports. However, we are dismayed by the House version, H.R. 1714, which seeks to eviscerate state oversight authority for insurance and other financial services as well as our ability to ensure the financial well being of our mutual constituents. The House version would seriously and unnecessarily undermine consumer safety and state sovereignty.
Section 102(b) of the House bill would force states to process electronic records in any number of formats and technologies. The cost for states to accommodate these electronic records in unlimited formats would amount to an unfunded mandate. NCSL is disappointed that this Congress would seek to bypass the provisions of the Unfunded Mandate Reform Act of 1995 and to preempt the states' regulatory and oversight authorities.
As you know, states are the primary regulators of insurance and state-chartered banks, and in that capacity must require certain records to be remitted to the state. Our need for such oversight is no different than the oversight responsibilities the federal financial regulators such as the Federal Deposit Insurance Commission (FDIC), the Office of the Comptroller of the Currency (OCC), the Federal Reserve Board (FED) and the Securities and Exchange Commission (SEC) provide on the national level. H.R. 1714, exempts all federal agencies from the provisions on the transmittal of electronic records contained in Section 102(b). The FDIC, the OCC, the Fed and SEC can require how electronic records will be submitted. My colleagues across the country feel strongly that state regulators need and deserve the same flexibility as federal regulators.
We respectfully ask you to stand by your previous vote in support of S. 761, which would create a national standard for digital signatures. We also request that you not let the House members of the Conference Committee eviscerate state consumer protection laws and harmfully handicap state regulators' ability to ensure financial solvency and to prevent fraudulent activities. At the very least, if the Senate Conferees fail to support S. 761, we demand, to be treated no differently than any federal agency would be under this legislation, and therefore, urge you to remove Section 102(b) of H.R. 1714.
State legislators recognize the need to encourage electronic commerce by making legal digital signatures in cases where both parties deem it beneficial. Prior to Congressional action, over 42 states had passed some form of digital signature legislation and states are moving to enact UETA.
In December of 1999, NCSL's membership unanimously approved a resolution endorsing the Senate version, S. 761, which preempts only those state laws restricting or prohibiting the use of electronic signatures and records. S. 761 also provides the state the ability to reassert its authority by passing the Uniform Electronic Transactions Act (UETA) as promulgated by the National Conference of Commissioners on Uniform State Law. As of this writing, two states have enacted UETA, California and Pennsylvania, and state UETA legislation is pending in another 21 states. The House version references UETA, but it also preempts a number of provisions in UETA, particularly those concerning state consumer protection laws and how electronic records are to be submitted to the state.
The provisions of H.R. 1714 also are opposed by the National Association of Attorneys General, the National Association of Insurance Commissioners, the North American Securities Administrators Association, the American Association of Retired Persons and numerous consumer organizations across the country.
Thank you for considering the concerns of your state legislature and your constituents on this issue of mutual concern.
Sincerely,
Joanne Emmons
Senator Michigan
Chair, NCSL Commerce and Communications Committee
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