HI All,

Is it a requirement of E-Sign to get the customer's consent by electronic means (Electronic signature)? Or can I send the consent form by secure email have the customer download and print the form sign and send the consent form back to the bank as proof of consent?

Consent is not legal unless it is obtained or confirmed by electronic means. ESIGN legalizes "electronic signatures" but never offers a clue as to what does or does not qualify as an "electronic signature."

In order for an electronic document to become the legal equivalent of a paper document, you must:
1. devise your own e-delivery mechanism,
2. explain your mechanism to consumers who may be willing to accept e-documents as an alternative to paper documents, and
3. put each e-delivery candidate through a test drive that will demonstrate that the candidate has the hardware, software, and savvy to retrieve, open, and read the contents of a sample e-document of the type to be used for official e-deliveries.

You have total flexibility in the design of your e-delivery mechanism. For the foreseeable future, all mechanisms will fall into one of two categories: push or pull. A typical "push" system will include or attach some type of e-document to an email message that you deliver (push) to the consumer's email box. A "pull" system requires the consumer to navigate to a URL where the e-document is waiting to be downloaded by the consumer. As part of a "pull" system, you may choose (but are not required) to send a courtesy email message, text message, or some other type of electronic alert when an e-document becomes available.

ESIGN requires your pre-consent explanation to cover several items--including hardware and software minimums, availability of redundant or replacement e-documents in paper form, and several other items listed in Section 7001(c)(1) of the ESIGN Act.

Consent must be included as part of the "test drive"--in a fashion that is very similar to the highway part of a driver's license exam. In order to pass, each e-delivery candidate must demonstrate the ability to navigate your e-delivery mechanism successfully. Please note that a "declaration" is not the same thing as a "demonstration." Like student drivers, e-delivery candidates must actually "climb behind the wheel" and prove their ability to operate the e-delivery mechanism you designed.

We have discussed this approach in many threads and there are different opinions. ESIGN does not require forms, signatures, or the use of email. I can't buy any argument that the act of granting consent electronically can possibly involve a "print" button.

Consent is not legal unless it is obtained or confirmed by electronic means. ESIGN legalizes "electronic signatures" but never offers a clue as to what does or does not qualify as an "electronic signature." So does a read receipt confirmed by electronic means equal consent? I guess I am still having trouble how to obtain consent by electronic means is? Can you prove me with an example.

There is a big difference between electronic consent and an electronic signature.

I'm not getting a clear image of each step in your process and the timing. Walk us through a sample slowly & let's take a look.