Just below the title of this page, click the link (tiny print) titled "Click to Read a Reg." You will find the link to the text of the ESIGN act in the section labeled "OTHER IMPORTANT LAWS AND REGULATIONS."
If you are familiar with banking regulations, forget everything you know when you're dealing with ESIGN. It's a horse of a different color:
1. There are no ESIGN regulations. In fact, Congress prohibited
ESIGN regulations by any agency.
2. ESIGN has no penalty or civil liability provisions.
3. ESIGN is entirely beneficial--it only permits things--there are no prohibitions or restrictions on any business activity.
4. ESIGN is optional. If you don't want to use e-signatures or e-documents, ESIGN is irrelevant.
5. ESIGN is universal, applying the same way to all kinds of businesses.
ESIGN only does two things:
1. Legalize electronic signatures, and
2. Legalize electronic documents as an alternative to paper documents.
ESIGN doesn't tell you what is or isn't a legitimate electronic signature. That's left to you. Any decision to use electronic signatures MUST be based on a careful risk assessment, however. Setting up some kind of a system to use e-signatures is easy. Much harder will be proving to a judge that your method is sufficiently reliable and foolproof so as to bind that customer to the terms of whatever agreement that was signed electronically.
ESIGN also doesn't tell you what is or isn't a legitimate electronic document. It's up to you to choose what works best and is well-received by your customers. Unlike the wide-open permission to use electronic signatures, you must jump through a few hoops in order to take advantage of the e-document option. These "hoops" consist of a handful of pre-consent disclosures that explain your e-document delivery system and a one-time "test drive" that will demonstrate beyond any doubt the the consenting customer has the necessary hardware, software, and savvy to receive, open, and use your e-documents.
So....with the CliffsNotes overview of ESIGN out of the way, the answer to your question becomes a bit clearer.
Does general communication fall under the ESign Act or is it just the delivery of disclosures?
Whether or not something "falls under ESIGN" depends on you. Should you require the customer's signature (a signed receipt, for example) in connection with a general communication or document delivery, ESIGN permits you to allow the customer to sign electronically. Should you desire to send your customer any type of e-document, ESIGN permits it, BUT before you march the customer through the "informed demonstrable consent" drill, stop and decide whether that's necessary.
You hand deliver or send lots of communications to your customers. Some of these communications (including a few types of disclosures) need not be "in writing." For this group, the "ESIGN seal of approval" would be overkill. They don't have to stand up in court or pass muster with your regulator. Other types of communications must qualify as "in writing" because you may need to take them to court as evidence or produce them for regulators. Many of the disclosures required by the various consumer protection laws and regulations fall in this category. Consumer deposit account statements are included, for example, because they are the vehicle you use to deliver Reg. E and DD disclosures and these two regs require delivery "in writing." In order to switch this group from electrons to paper, you need to obtain the customer's consent to make the change. To obtain bulletproof consent, you have to follow the "informed demonstrable consent" procedure laid out in Section 7001(c)(1) of ESIGN.
Since "general communications" aren't subject to any federal laws or regulations and you won't need to produce them "in writing", there's no need to put these customers through an ESIGN opt-in.