digital-contract
Could a voice response to (Amazon Echo) Alexa Skill be legally construed as a digital signature?
<p>I'm currently developing an Alexa Skill for a client and would like to add the ability for the Alexa Skill user (where the skill user is anonymous, i.e. the skill is not linked to an account) to be able to agree to accept email and/or text messages. In the US various laws (i.e. Can Spam), and more recent acts protect the public from unsolicited communications by email and SMS text messaging by commercial entities. It's my understanding that the user must specifically agree to this happening, and the agreement must use some form of digital signature - for example a verbal agreement to SMS/email to a customer service rep isn't sufficient. 
Any opinions on whether a digital acceptance could be legally acceptable using an Alexa response - although it's "verbal" the system is converting that speech utterance to text, i.e. it's not a conversational approval (which is prohibited) in the sense meant by the congressional acts.</p>

<p>Thanks</p>

<p>The <a href="https://www.ecfr.gov/cgi-bin/text-idx?SID=998a4ead0e21758f1c808b488eaf4cbb&amp;mc=true&amp;node=pt16.1.316&amp;rgn=div5#se16.1.316_13" rel="nofollow noreferrer">CAN-SPAM act</a>, enforced by the FTC, does not require prior permission to send email, but you cannot send a deceptive commercial message. If a message pretends to not be an advertisement (but is), it is deceptive – advertisements have to be clearly identified as advertisements. A customer can give prior affirmative consent for a sender to send an advertisement that is not clearly identified as an advertisement (the sender can send a "<a href="https://www.law.cornell.edu/definitions/uscode.php?width=840&amp;height=800&amp;iframe=true&amp;def_id=15-USC-2057680731-372951503&amp;term_occur=1&amp;term_src=title:15:chapter:103:section:7702" rel="nofollow noreferrer">relational</a>" email).</p>

<p>Assuming that you want to set things up so that emails from the vendor are in the relational and transactional bin (that is, it is legally not "a commercial message"), you need to get "affirmative consent", defined in 15 USC 7702(1):</p>

<blockquote>
  <p>(A) the recipient expressly consented to receive the message, either
  in response to a clear and conspicuous request for such consent or at
  the recipient’s own initiative; and</p>
  
  <p>(B) if the message is from a party other than the party to which the
  recipient communicated such consent, the recipient was given clear and
  conspicuous notice at the time the consent was communicated that the
  recipient’s electronic mail address could be transferred to such other
  party for the purpose of initiating commercial electronic mail
  messages.</p>
</blockquote>

<p>Nothing in the law requires that the consent be transmitted by email, that it be signed, or anything else. There simply has to be consent. Clarity and conspicuousness are what is most important. Subparagraph (B) is probably particularly applicable in this instance. There are special technological proof issues surrounding the question of whether a recipient has actually consented (see the most recent episode of the X-Files). This is presently beyond the reach of the law: if a person say "Okay" in response to Alexa saying something and this is stored as a pair of text stimulus + reponse string, there are major evidentiary issues which could be raised and at some point legislated. At present, there is no requirement that you record the voice exchange. The law does not say anything at all about a need to "prove" that you got consent. A digital signature is probably pretty clear evidence, but it is not legally required.</p>

<p>Turning to another area of communicative regulation, phone communication is regulated by the FCC (not the FTC), under the Telephone Consumer Protection Act of 1991. Applicable to voice or SMS calls, <a href="https://apps.fcc.gov/edocs_public/attachmatch/FCC-12-21A1.pdf" rel="nofollow noreferrer">CG Docket No. 02-278</a> of 15 Feb 2012 requires prior express written consent of the called party, under various conditions. <a href="https://www.law.cornell.edu/cfr/text/47/64.1200" rel="nofollow noreferrer">47 CFR 64.1200(f)(8)</a> states...</p>

<blockquote>
  <p>The term prior express written consent means an agreement, in writing,
  bearing the signature of the person called that clearly authorizes the
  seller to deliver or cause to be delivered to the person called
  advertisements or telemarketing messages using an automatic telephone
  dialing system or an artificial or prerecorded voice, and the
  telephone number to which the signatory authorizes such advertisements
  or telemarketing messages to be delivered.</p>
  
  <p>(i) The written agreement shall include a clear and conspicuous
  disclosure informing the person signing that:</p>
  
  <p>(A) By executing the agreement, such person authorizes the seller to
  deliver or cause to be delivered to the signatory telemarketing calls
  using an automatic telephone dialing system or an artificial or
  prerecorded voice; and</p>
  
  <p>(B) The person is not required to sign the agreement (directly or
  indirectly), or agree to enter into such an agreement as a condition
  of purchasing any property, goods, or services.</p>
  
  <p><strong>(ii) The term “signature” shall include an electronic or digital form
  of signature, to the extent that such form of signature is recognized
  as a valid signature under applicable federal law or state contract
  law.</strong></p>
</blockquote>

<p>"Writing" is, itself, undefined. However, para 32 of the order, which provides context for the regulation a propos the written agreement and signature requirement, makes it clear that the agreement must be written (which under the ordinary meaning of words does not include "spoken"). To confuse matters a bit, they also say</p>

<blockquote>
  <p>The FTC has determined that written agreements obtained in compliance
  with the E-SIGN Act will satisfy the requirements of its rule, such as, for example, agreements obtained via an email, website form, text message,
  telephone keypress, or <em>voice recording</em>.  Finally, under the TSR, the
  seller bears the burden of proving that a clear and conspicuous
  disclosure was provided, and that an unambiguous consent was obtained.</p>
</blockquote>

<p>The paragraph uses "agreement" in two ways (this is not unusual): the abstract thing that people are agreeing to, and the act of accepting or agreeing to that thing, typically indicated by a signature. In context, it is clear that the "terms" must be written, but the acceptance or signature can be email, form, SMS, keypress, or voice recording.</p>

<p>Para 34. further addresses the interpretation of "consent", saying</p>

<blockquote>
  <p>The FTC specifically found that consent obtained via an email, website
  form, text message, telephone keypress, or voice recording are in
  compliance with the E-SIGN Act and would satisfy the written consent
  requirement in the amended TSR</p>
</blockquote>

<p>About 4 times they reiterate a voice recording constitutes a signature (they are operating within the domain of the E-SIGN Act, and not generally redefining "written words" to include "spoken words").</p>
