Is there anything in the E-Sign Act that requires that the Bank be able to prove that the customer is able to open disclosures sent by email?

A proposal has been put forth to send customer who open accounts online their account disclosures by email in PDF format. Our current E-Sign disclosure lists Adobe Acrobat 7.0 and access to printer or ability to download documents and informs the customer how to obtain a paper copy if they wish. A concern has been raised that E-Sign requires that we be able to prove that the customer is able to open the PDF in order to send the account disclosure by email.

Is this a requirement per the E-Sign Act or any other regulation governing deposit account opening disclosures?

Thank you

If you cannot prove that the customer can open the documents, then you do not have "demonstrable" consent:

15 USC 7001.

(c) CONSUMER DISCLOSURES.—(1) CONSENT TO ELECTRONIC RECORDS

(C)(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;

Our on-line deposit account opening software provides disclosures; it's odd to me that yours doesn't. While we don't have an issue with deposit accounts, we do have a similar situation with loans.

Maybe this will help. We use an email template on Outlook which is on loan officer desktops. The loan officer adds the customer's email address and Cc's their own email address. The cc to the DisclosureDept@abcbank.com and the Subject line automatically populate. The E-Sign Consent Agreement is also automatically attached. The instructions for the "Code" is the first thing the customer reads when they open the agreement (reply with D.O.B). When the customer reply's all with the proper code, the disclosure department emails the Loan Estimate, if the reply is not received by the next day, the disclosure department puts the loan estimate in the mail.

To: _______________
Cc: DisclosureDept@abcbank.com; __________

Subject: ABCbank - E-Sign Agreement

Attached: E-Sign AGREEMENT TO RECEIVE LOAN DOCUMENTS BY ELECTRONIC COMMUNICATION

You should print or otherwise retain a copy of the disclosures provided to you.

To receive your loan documents by electronic communication, you must open the attachment and “REPLY ALL” with the code found in the agreement.

You must respond to this e-mail within 24 hours of receiving it. If you do not respond with your “Code” within 24 hours, your disclosures will be placed in the U.S. mail.

Maybe not ideal, but it works. We hope to purchase a new LOS with a customer portal fairly soon; once we have that, delivery of disclosures will be much easier.