Answer:
Leaping the E-SIGN hurdles certainly qualifies, if the consumer's agreement to accept electronic records includes disclosure information in general, in addition to statements in particular. However, for the opt-in disclosure and confirmation, you don't need to get the full-blown E-SIGN handshake and demonstrable consent. All you need is a nod, a signature, a statement in an email or some other indication that your customer agreed to receive the disclosure electronically. For example, if you provide a link on your online banking page that says: "Click here for important information about overdraft services," you can treat the consumer's click on the link as an agreement to receive the disclosure electronically. Similarly, if the same customer clicks on a link on your opt-in form that agrees to your overdraft service for card transactions, the opt-in form itself could include a statement that the consumer agrees to receive a confirmation electronically, and the confirmation could be delivered as the next screen, and include the required notice that the consumer can revoke the opt-in at any time, etc.
You will be asked to demonstrate your compliance with the regulation. Since there is no prescribed format for the customer's consent, you may or may not have a document that you can retain. However, your procedures should be well-documented, so that you can point to them to demonstrate the way or ways in which you obtain customer consent for the electronic disclosures.
First published on BankersOnline.com 3/15/10
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