E-SIGN Act and the Definition of "Email"

Answered by:

Question:

I know that Reg X allows for E-SIGN use but I cannot find in any of the Regs the definition of "email." Reg X allows for the delivery of corrected disclosures in the cure process. There are time frames to meet to make the delivery effective and email is nearly instant. It seems though that anything other than handing the corrected disclosure to the applicant is considered mailed. Can we email these corrections when time is short?

Answer:

Answer from Randy: Without demonstrable consent, just sending an attachment in an e-mail does not meet the E-SIGN requirements and therefore the delivery from a regulatory standpoint never happened.

Answer:

Answer from Andy: The CAN-SPAM Act is as close as you'll find to having a definition as open and closed systems are discussed and treated differently. But E-SIGN won't "borrow" from CAN-SPAM. Email is email, but as Randy noted unless the consumer has consented to receipt of notices in this manner and you have complied with the E-SIGN requirements in that process, email is not a valid form of delivery. Allow that many people check email when they expect something and otherwise do not access it. They wouldn't expect a correction and without E-SIGN compliance, you need to follow the more traditional means of sending notices and disclosures.

First published on BankersOnline.com 8/13/12