Not considering the documentation requirements surrounding eSign, but for traditional online banking including BillPay, are Terms and Conditions only required to be provided without proof of the client’s acceptance? If Mobile RDC is added, is there a consent process that should be documented, or again, are those conditions deemed being accepted is a link to them is provided and the consumer uses the product?

If any of what you describe amounts to the addition of a new electronic fund transfer service, Section 1005.7(c) of Regulation E puts ESIGN back on the table. Regardless of any Reg. E issues, you must be sure your service agreements are enforceable--a matter to review with bank counsel.

Along these lines, can the Reg E disclosures and any agreements that apply for mobile banking be provided at the same time as the disclosures used for Internet banking and bill payment? My concern is that the customer may receive the Internet banking and bill payment disclosures and then utilize mobile banking, say, a year later. Does the treatment depend on if the use of mobile banking is a new electronic funds service or just an extension of Internet banking and bill payment services? For instance, if the customer must be already a customer of Internet banking and bill payment to receive mobile banking service, would this mean a new disclosure need not be delivered in close proximity of the mobile banking sign-up or use? Or does it also depend on if a new PIN or password is needed, a new access device, that would trigger new disclosures?

I am also curious about this. We are able to obtain a list of all new mobile banking customers each month. I believe that we need to use this list to send an EFT notice to the customer but am having a lot of push back because you must be an online banking customer to enroll in mobile banking (online banking customers must agree to an Electronic Services Agreement which includes the EFT disclosure). My interpretation is that mobile banking is a seperate EFT service and therefore, is subject to 12 CFR 205.7(c) regarding the addition of electronic fund transfer services. We recently changed our EFT notice so we would most likely need to provide the disclosure in accordance with 12 CFR 205.7(c). I think providing it to everyone is the safest way to ensure compliance rather than trying to determine whether they received the updated disclosure or the prior version.

Thanks in advance!

Even if you delivered an updated disclosure at account opening, you still have to deal with the "close proximity" rule:

"if an agreement for EFT services to be provided by an account- holding institution is directly between the consumer and the account-holding institution, disclosures must be given in close proximity to the event requiring disclosure, for example, when the consumer contracts for a new service."

So, if you can enroll in mobile banking through your on-line banking application, you would still need to comply with E-Sign to deliver the new Reg. E disclosure.

I think the key question is whether mobile banking is or is not simply an extension of -- a version of, if you will -- your bank's online banking service. Compare the features of the two and decide whether the mobile service provides different functionality. One item that springs to mind is the ability to capture pictures of checks for deposit (MRDC), which clearly isn't a function of your online service.

rlcarey (or anyone else),

If mobile banking is just a new medium/platform to perform the only same functions as online banking, is that really considered contracting for a new service?

Example: Traditional online banking via computer allows you to view balances, transfer funds between your own accounts and bill pay. We now introduce a mobile banking app so you can do the same things on your smartphone or tablet, no new features, other than it is configured for viewing on a smartphone or tablet. Customer who has had online banking for years now gets the app for the smartphone. Is this really a new service?

This now leads me to think of another question...does the E-sign agreement have to now list the app as software even though it is only an optional way to view? You still have to have traditional online banking to be able to actually use the app.

Thanks.

If all it is, is an extension of your on-line banking application, it is purely a matter of contract.

E-sign only comes into play if you are delivering documents required to be delivered in writing by one of the Federal regulations, unless the regulation exempts it from the E-Sign requirements.

Thanks rlcarey.