[Pages S1206-S1209]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

UNANIMOUS CONSENT REQUEST--S. 761

Mr. LOTT. Mr. President, I ask unanimous consent to appoint the
conferees to S. 761, the Millennium Digital Commerce Act.
The PRESIDING OFFICER. Is there objection?
Mr. REID. Mr. President, reserving the right to object, has the
leader cleared this with someone on this side of the aisle?
Mr. LOTT. Mr. President, if I could respond to the distinguished
Democratic whip, this is for conferees on this Millennium Digital
Commerce Act. We have tried, over the past couple of weeks, to get
clearance to appoint conferees.
The recommendation was that we have, I believe, 11 from the Commerce
Committee, 3 from Banking--6 and 5 and 2 and 1. For some reason, there
have been objections to that. There continue to be objections, but this
is a bill that has broad support in the industry and on both sides of
the aisle. So I am confused and perplexed about why we can't get these
conferees appointed and move forward to this conference. So it has not
been signed off on, as I understand it. But since I talked to the
Democratic leader last week twice, I thought perhaps we had reached a
point where this could be done.
Mr. REID. I am confident we can work it out. But at this stage, I
will have to object.
The PRESIDING OFFICER. Objection is heard.
Mr. LOTT. Mr. President, if I could be heard on this issue at this
time.
I don't understand, again, what the objection is to this procedural
motion. The House appointed conferees to this bill 2 weeks ago, and
they have been calling over saying, ``What is the deal?'' I understand
that perhaps there are other Senators who would like to be conferees
from other committees. There is some indication that maybe the problem
is they don't like the fact there are some Banking conferees. The House
bill has several provisions that are clearly in the Banking
jurisdiction, and that is why we have recommended having three from
Banking--two and one--so we can get this into conference and get it
worked out.
There are a lot of us who realize there are Silicon Valley interests
in this. We also have the Dulles corridor high-tech industry in
Northern Virginia that really wants this legislation completed. I don't
think it would be a long conference. So I want to highlight the fact
that we are anxious to get to conference.
I have addressed concerns as best I could. I don't think we can take
Banking members off the conference. Maybe there is another way to solve
this problem. But since I was getting questions both from the high-tech
industry and from the House as to why we weren't going on to
conference, I had to point out or emphasize what the problem was.
I would be glad to yield to the Senator from Michigan, the author of
this legislation. He probably knows more about it than any other
Senator.
Mr. ABRAHAM. If the majority leader will yield briefly, I thank him
for making another attempt to appoint conferees on this legislation.
Mr. President, I share the majority leader's frustration over our
inability to really move anywhere with this bill. This bill, the
Millennium Digital Commerce Act, is a bipartisan bill. This legislation
passed the Senate by unanimous consent. We worked together here to try
to craft the legislation in a bipartisan fashion. The House companion
legislation passed by an overwhelming margin.
I understand--and the majority leader has just indicated it again--
there may be some Members who have concerns with the bill. But,
obviously, going to conference is the usual procedure for moving
legislation. As I understand the request that has been put forward,
there would be six Democratic Senators on the conference committee,
which is about 15 percent of the entire Senate Democratic caucus who
would then be able to participate in the proposal.
Mr. LOTT. If the Senator will yield on that point, I also note at
this time that I think the House only has perhaps five conferees. I
don't believe I have ever been to a conference where the House has one-
third as many conferees as the Senate. So we have already tried to
include as many Senators as we possibly could.
Mr. ABRAHAM. I do think that is a sufficient number to guarantee the
views reflected by each side. They would be adequately represented in
the conference.
Mr. LOTT. Let me ask the Senator something, if I may. This is a
sophisticated title, the Millennium Digital Commerce Act. What does
this bill do?
Mr. ABRAHAM. Essentially, the legislation is designed to address a
problem we have now with respect to the

[[Page S1207]]

enforceability of contracts that are entered into electronically. A
number of States have attempted to deal with this. This would be where
parties, over the Internet, engage in some form of contractual
activity. A number of States have passed legislation--in fact, about 45
States have done so. The problem is that each of these State laws is
different from the other. As a result of that, it has created a serious
potential impediment to the expansion of electronic commerce because if
the laws of two different jurisdictions are different, somebody can
hide behind that difference to argue that they did not have to fulfill
the terms of the contract.
Fortunately, the States are trying to work toward a solution, as they
have done in other areas of commercial activity. We have a Uniform
Commercial Code, and the States are trying to work together to address
these kinds of interstate contracts. That will take time. Even after
they come to final agreement on a specific format or formula for the
legislation, it is going to take probably years for all the States to
adopt it. So this would guarantee the enforceability of contracts
entered into electronically in the interim. That is the approach we
have taken, and we hope it will therefore allow continuing growth in
the area of electronic commerce, which is, as you well know, becoming
one of the key sectors and key activities in our economy today.
Mr. LOTT. Mr. President, I want to clarify a point.
As author of this legislation and as a member of the Commerce
Committee where this legislation originated--I am a member of that
committee--does the Senator object to having banking representation as
a part of this conference?
I note that the House bill has several provisions that are clearly
banking-type provisions. Does the Senator see a problem with that?
Mr. ABRAHAM. I don't, for the very simple reason that in the House,
the House-passed legislation went beyond the scope of what we passed in
the Senate to include legislation, or to expand the use of this
legislation to transactions that involved securities and other
transactions which would fall under our Banking Committee's
jurisdiction. Had those been in the initial legislation we introduced
here, then the jurisdiction of this bill in the Senate might have been
altered or in some way divided.
For that reason, I think there is a very valid argument for the
Banking Committee, because of the broader nature of the legislation
that came to the House, to participate in the conference.
Mr. LEAHY. Mr. President, which of the two Senators has the floor?
The PRESIDING OFFICER. The majority leader has the floor.
Mr. LOTT. Mr. President, I would be glad to yield to Senator Leahy,
and I will come back to Senator Abraham, if he desires to have some
additional time.
Mr. LEAHY. I wish to ask a question. Were we referring to the
Abraham-Leahy substitute as it passed the Senate on digital signature?
Is that what we are referring to? I ask that question of either
Senator.
The PRESIDING OFFICER. The Senate is considering nominations.
Mr. LEAHY. I thank the distinguished majority leader for yielding. I
ask the question of either the Senator from Michigan or the Senator
from Mississippi: Are we referring to the Abraham-Leahy substitute that
passed the Senate on digital signature?
Mr. LOTT. Mr. President, if I could try to respond, is the Senator a
cosponsor of the legislation?
Mr. LEAHY. I believe so, with the substitute that I authored along
with the Senator from Michigan.
Mr. LOTT. As is our tradition around here, it could be the Abraham-
Leahy bill, or the Lott-Daschle bill, or something other bill.
Mr. LEAHY. That is what I am asking.
Mr. LOTT. I assume the Senator has been interested and involved in
this.
Mr. LEAHY. I ask the question of the Senator from Michigan: Am I
correct that the House only appointed members of the Commerce
Committee, as opposed to the Banking Committee?
Mr. LOTT. They appointed only five.
Mr. LEAHY. They did not appoint anyone from the Banking Committee?
Mr. LOTT. They did not appoint anybody from the Banking Committee, as
I understand it.
Mr. LEAHY. I thank the Senator.
Obviously, as one of the authors of this legislation, along with the
distinguished Senator from Michigan, I would like to see the law in its
present form. I just wanted to make sure, having spent enormous amounts
of time with the Senator from Michigan and others to work out a
compromise that allowed it to pass unanimously from this body. Had we
not done otherwise, we would be in a position of having to make sure
improvements made in this body were preserved within the legislation.

Mr. LOTT. I think that clearly would be the intent of our conferees.
Therefore, I assume Senator Leahy would support getting conferees
appointed and going to conference. Is that correct?
Mr. LEAHY. I would be supportive of the Leahy-Abraham compromise.
Mr. LOTT. I yield to the Senator from Michigan. Senator Daschle is on
the floor. He may want to get involved in this.
Mr. ABRAHAM. Mr. President, point of clarification: In the process of
the appointment of conferees, obviously each Chamber has to appoint
them based on the respective jurisdictions of the parts of this bill
that are before us; that is, the House bill as it finished the House
and the Senate bill as it finished the Senate. Although I don't have an
intricate knowledge of the jurisdictions of various areas in the House,
it is my understanding that matters that pertain to the SEC and
securities-related issues in the House fall under the Commerce
Committee's jurisdiction, whereas in the Senate they fall under the
Banking Committee's jurisdiction.
I think that may explain the problem a little bit because in the
House it is perfectly reasonable and appropriate that the Commerce
Committee alone be represented. They have jurisdiction over those
provisions that are securities-related as well as those that are
related to the technology side of this. In the Senate, that is not the
case. Our Banking Committee, not the Commerce Committee, has
responsibility for those areas. I think that is part of the problem.
Mr. LOTT. Mr. President, I would be glad to yield to Senator Daschle
or yield the floor, if he wants to speak on his own time.
Mr. DASCHLE. Mr. President, I appreciate the leader yielding to me.
As we go through our daily schedules and responsibilities, I bet I do
a lot of things which are a source of concern for the majority leader.
I am sure he is not surprised that the way this matter has been handled
is a source of concern to me. We talk daily. Sometimes we talk hourly.
Sometimes I am sure we talk more than he would like. But, nonetheless,
we talk. To say we were surprised and disappointed that a unanimous
consent request could be propounded without any notification is an
understatement. It is disappointing.
I hope we can avoid surprising one another. But, of course, we do it.
That is understandable. Certainly, the majority leader has every right
to proceed in any way he sees most appropriate. I think it is a
violation of the trust and communication that we try to maintain. And I
am very disappointed he sought to come to the floor without any
notification of the issue.
Let me say three things.
Mr. LOTT. Mr. President, if the Senator will yield, I apologize to
Senator Daschle for what led him to make his comments.
First of all, the Senator will recall that last week we discussed on
a couple of occasions how we could work through getting the conferees'
names agreed to and through the body. This morning--I don't remember
the exact hour--we decided to have a colloquy on this issue. I assumed
he had been notified and that all of you were aware we were going to
try to get the conferees appointed and have a colloquy. I first
realized it had not been done when I saw the expression on one of our
staff members' face when I stood up and made the unanimous consent
request. I assumed he had been notified, as he is when we do this sort
of thing. I don't shift the blame to staff; I accept the
responsibility. I apologize to Senator Daschle because he should have
been notified. I assure him we have done a lot of things already this
year together and I always notify him. We should have done that.

[[Page S1208]]

Nevertheless, it doesn't diminish the need to get an agreement on
conferees. I will be glad to work with him to get this done because
this is a bill that really is important to a large segment of our
society.
My own son is also harassing me about how he wants to do e-commerce.
He is concerned about what he can do. He is doing business in Kentucky.
We are not only hearing from House Democrats and Republicans, asking,
Where are your conferees? This is also something my son is harassing me
about.
We have to get this worked out some way and real quick.
I think the Senator is entitled to an apology because of the way this
was handled. I would expect him to be notified.
Mr. DASCHLE. Mr. President, I appreciate the majority leader's
graciousness and accept the apology.
As I say, we have had a great working relationship this year already
on a lot of different issues. I appreciate very much the manner in
which he has expressed himself on this particular situation.
Let me say to the issue, as he noted, we have attempted to resolve
this in the past. I give Senator Lott great credit for trying to find
as many innovative ways in which to address what has been an
irresolvable conflict.
We have indicated a willingness to go to conference so long as it
involves the committee that was responsible for passing this
legislation. The Commerce Committee held hearings. They marked up the
bill. They passed it. We are now at a point where the conference
includes conferees from the Commerce Committee in the House, and we are
prepared as we move to conference to accept conferees from the Commerce
Committee.
The problem is, the chairman of the Banking Committee wants to be
part
of the conference, and, frankly, the Banking Committee didn't have
jurisdiction.
The Banking Committee is not represented on the House side. There is
no reason that we can understand why the Banking Committee, in and of
itself, ought to be involved in the conference when they didn't have
jurisdiction.
Certainly, the chairman ought to be heard and he ought to be
recognized as one who certainly has every right to express himself to
the conferees, as other Members. Let him go to the conference and
express himself. Let him offer suggestions on the Senate floor.
But to make him a conferee when we have already agreed that the
Commerce Committee could move forward, could accomplish what I think is
unanimous support for the legislation--I am sure we could achieve that
at some point, and it would be the fastest and most meaningful way with
which to get it done.
I am hopeful we can do that. There is no reason for this legislation
to be delayed anymore. Let's have the conferees work their will. Let's
get this legislation passed. Like Senator Lott, I think there are a lot
of people out there, including his son, who ought to see the Senate
act. I desire that no less than he. Hopefully, we can do it soon.
Mr. LOTT. Mr. President, I note the House bill includes an entire
title pertaining to the use of electronic signatures in securities
transactions. That language falls under the jurisdiction of the House
Commerce Committee, but in the Senate, the jurisdiction is in the
Banking Committee. Clearly, there is Banking Committee jurisdiction in
this legislation in the House bill.
Also, let me get specific about what and whom we are talking about.
We are talking about three very thoughtful Members of the Senate who
have a real interest in these electronic signatures and securities
transactions. They are: Senator Gramm, the chairman of the Banking
Committee from Texas; Senator Bennett from Utah, who had been very much
involved in our efforts to pass the Y2K legislation last year and in a
number of areas, including cyberterrorism--he is very knowledgeable in
this whole area--and Senator Sarbanes, the ranking member on the
Banking Committee.
These are not three Senators who would be anything but instructive in
sharing information in an area in which they have a greater knowledge
than the Members of the Commerce Committee.
Did the Senator from Michigan wish to comment further?
Mr. ABRAHAM. I think the majority leader has outlined the
jurisdictional situation well.
I reiterate, had the bill that the House passed been the bill that
was introduced here, clearly the jurisdiction on the Senate side would
have been differently arranged in some fashion. I don't know if it is
called sequential jurisdiction or what, but provisions would have
fallen under the Banking Committee's domain.
Mr. LOTT. Let me conclude by saying again to Senator Daschle, we
talked last week and we both tried a couple of innovative ideas as to
how to work this out. I will continue to do that because I think we
need to get the conferees appointed. I don't recall any situation quite
like this, in the last year or two anyway. We ought to be able to find
a way to get the conferees appointed.
I yield the floor.
Mr. DASCHLE. I share the desire expressed by the majority leader to
get this done. I want to publicly, again, commend Senator Leahy for all
of his leadership and effort to get the Senate to this point. He spoke
earlier and I appreciate very much his willingness to stay committed
and his persistence in getting the Senate to a point where we actually
could see this become law.
Maybe there is a way, if we go beyond Commerce jurisdiction, to
include the leadership of the Judiciary Committee and the leadership of
the Banking Committee and maybe expand it to include a lot more Members
than just Commerce Committee members.
As Senator Lott noted, we can perhaps try to find another innovative
mix of participants. Certainly if this happens, the distinguished
Senator from Vermont ought to be a part of the conference. I am sure we
can work it out at some point.
I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. ABRAHAM. Before we conclude, I ask unanimous consent to have
printed letters from a number of organizations that have called on the
Senate to move to appoint conferees.
There being no objection, the letters were ordered to be printed in
the Record, as follows:

American Electronics Association,

Washington, DC, March 3, 2000.
Hon. Thomas A. Daschle,
Senate Democratic Leader, Hart Senate Office Building,
Washington, DC.
Dear Senator Daschle: On behalf of the American Electronics
Association (AEA), I urge you to appoint conferees on S. 761,
the Electronic Signatures in Global and National Commerce Act
(``E-Sign''), which was passed by the Senate by unanimous
consent on November 19, 1999. As you know, the House passed
its version of E-Sign by a margin of 356-66 on November 9,
1999.
AEA is the largest high-technology trade association in
America, representing over 3,000 companies who develop and
manufacture software, electronics and high-technology
products. Our member companies range from industry leaders
such as Intel, Motorola, Compaq, Microsoft and America
Online, to small and medium sized high-technology start up
ventures.
Passage of the E-Sign bill is one of AEA's top legislative
priorities for this session of Congress. As you know, our
members conduct a tremendous amount of business online. In
order to continue the growth of online commerce, companies
need to know that they are operating in an atmosphere of
legal certainty. The E-Sign bill would establish certainty in
online contracting and promote e-commerce by recognizing the
validity and enforceability of electronic signatures and
records.
It is now time to move forward with this legislation. The
Senate Democratic leadership needs to appoint conferees and
move the process along. If there are any legitimate consumer
concerns they can be ably addressed in conference.
Thank you again for your leadership on this most important
matter. Please feel free to contact me if I may be of any
assistance to you and I look forward to working with you on
this and other issues of concern to the high-technology
community.
Very Truly Yours,
William T. Archey.
____

Business Software Alliance,

Washington, DC, March 1, 2000.
Hon. Thomas A. Daschle,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Dear Senator Daschle: I am writing to you on behalf of the
Business Software Alliance* to urge prompt action by the
Senate on S. 761, the Millennium Digital Commerce Act. This
bill was passed by the Senate last November, and a similar
bill, H.R. 1714, The Electronic Signatures in Global and
National Commerce Act, was approved by the House. It is our
understanding that further action on these bills is now
awaiting

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the appointment of conferees by the Senate so that
reconciliation of the two bills can proceed. We urge you to
act quickly.
Electronic commerce is now a reality. Using electronic
networks to purchase goods and services, as well as conduct
financial transaction, has rapidly gained tremendous consumer
acceptance. A number of legal elements are needed to ensure
the continued development of the electronic marketplace. Key
among these is ensuring that digital signatures, and other
forms of digital authentication, receive substantially the
same legal treatment as their pen and ink counterparts.
Likewise, the authorization of electronic disclosures in e-
commerce transactions would be an important step forward. It
is critically important to clarify and update the law in
these areas, which would deliver a boost to e-commerce and
the economy.
S. 761 is one of the top legislative priorities for
software and computer companies for this Congress, and we
urge you to appoint conferees at the earliest possible date.
Sincerely,
Robert W. Holleyman II,
President and CEO.
____

Securities Industry Association,

Washington, DC, March 2, 2000.
Hon. Tom Daschle,
Minority Leader,
The Capitol, Washington, DC.
Dear Senator Daschle: On behalf of the Securities Industry
Association (SIA) and our member firms I am writing to urge
your prompt action on the conference committee to reconcile
pending electronic authentication legislation (H.R. 1714 and
S. 761). The House has appointed their conference committee
members and SIA encourages the Senate to do the same. We ask
that you do all within your power to appoint the committee
members as soon as possible.
After many delays this very important legislation is once
again being detained. Electronic authentication legislation
will play a vital role in expanding electronic commerce. It
will not only allow the business community to continue to
compete nationally and globally but it will also provide the
consumer with choices he did not have before.
Electronic authentication legislation, when completed and
signed into law, will be historic in the effects it will have
on the marketplace. But, quick action is needed and with each
delay another missed opportunity passes by. SIA thanks you
for your leadership and attention to this important issue and
encourages you to name conference committee members quickly.
Sincerely,
Steve Judge.
____

Coalition for E-Authentication,

Washington, DC, March 2, 2000.

Subject: Conference on Electronic Signature Legislation (S.
761/H.R. 1714)

Hon. Tom Daschle,
Minority Leader, U.S. Senate.

Hon. Harry Reid,
Minority Whip, U.S. Senate.
Dear Minority Leader Daschle and Minority Whip Reid: The
Coalition on Electronic Authentication (CEA), which includes
many of the Nation's leading electronic commerce companies,
is writing to urge you to take all steps necessary to
expeditiously begin the conference on the Electronic
Signature legislation passed by both Houses last Fall.
Now, with a tight legislative calendar, it is imperative
that the conference begins as soon as possible so Congress
can complete work on its most important high-tech legislative
initiative this year. The House has appointed conferees, as
have the Senate Republicans. Now it is time to complete
conferee selection so the conference can move forward.
When enacted, Electronic Signature legislation will be a
truly historic step. It will have an immediate and dramatic
impact on the growth of electronic commerce and the Internet
because it will create, for the first time, the legal
certainty required to permit electronic signatures to become
widely used nationally by both consumers and businesses.
Electronic Signature legislation is essential to help
businesses of all kinds expand their use of electronic
commerce and meet their customers' growing expectations on
how business should be transacted over the Internet. Most
importantly, consumers will benefit from the increased
security, convenience, and lower costs associated with online
business transactions. In addition, with this legislation,
businesses will be able to greatly expand their use of
business-to-business electronic commerce in ways that will
significantly lower their costs.
Therefore, we respectfully urge you to do everything
possible to appoint conferees expeditiously, so the
conference can meet and conclude its work as soon as
possible.
Sincerely,
Coalition for Electronic
Authentication.

The PRESIDING OFFICER. The Senator from Nevada.

____________________