Compliance Q&A: ESign Requirements and Demonstrable Consent

Q: What constitutes “demonstrable consent” when meeting ESign requirements? Are banks required to collect information that the consumer actually read the disclosure apart from just acknowledgement?

A:  The statutory requirement can be found in 15 USC §7001, and reads as follows:

“[T]he consumer—

(i) prior to consenting, is provided with a statement of the hardware and software requirements for access to and retention of the electronic records; and

(ii) consents electronically, or confirms his or her consent electronically, in a manner that reasonably demonstrates that the consumer can access information in the electronic form that will be used to provide the information that is the subject of the consent[.]”

Technically, the statute does not require that the consumer actually read the statement of hardware and software requirements–the consumer just needs to be presented with them.

As for “demonstrable consent,” typically the consumer must either first consent, or later confirm any prior consent they gave, using the same method of delivery by which they’ll be receiving the disclosures. C/A considers that to be a manner that “reasonably demonstrates” a consumer’s ability to access electronic information, in accordance with the statutory requirement above. Best practice would be for the consumer to show some evidence that they viewed the actual e-SIGN disclosure (such as by including a numeric code in the document and then asking them to enter that code when providing consent), but it is not absolutely required to do that as long as the process meets the bare minimum statutory requirements.


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