How do we know that the customer can open the documents?
That's the purpose of ESIGN's demonstrable consent process. If you have to ask the question, then you need to get back to the basics and trace the two phases (pre-consent and consent) of your e-delivery system and check off the requirements one-by-one.
Your electronic signature evaluation is not a "compliance" test because ESIGN contains zero rules for e-signatures. This is a pure risk determination.
Pre-consent disclosures can be delivered in paper or electronic form. They apply only to consumers and require no signed acknowledgement of receipt. Remember, however, that you will need some kind of evidence that you complied with these notification rules.
Section 7001(c)(1) of ESIGN requires you to cover all of the following pre-consent items:
- Explain what, if any, right or option you give the consumer to have e-documents provided or made available on paper.
- State the consumer's right to withdraw consent for e-delivery of documents and list any conditions, consequences, or fees that will result.
- List the types of records that may be e-delivered.
- Explain the procedures the consumer must use to withdraw consent.
- Explain the procedures the consumer must use to update information needed to contact the consumer electronically.
- Explain how the consumer may request a paper copy of an e-document and the fee for this service.
- Provide a statement of the hardware and software requirements for access to and retention of e-documents.
- The consumer must provide his/her consent electronically. (Alternately, consent obtained on paper documents must be confirmed electronically.)
- Consent must be affirmative (opt-outs or other cram-downs are not valid).
- The act of providing consent must demonstrate the customer's capability to navigate your system and successfully access a test document of the type you will use for e-delivering "live" content.
If your vendor's system for obtaining consent does not cover everything above, then demand an explanation and don't quit until you are convinced that everything is in place. Remember, you may have to answer all of these questions for a critical bank examiner or in a court proceeding.