Question:

Are there any banks that allow a customer to complete an online application using a bank terminal? In addition, as part of E-SIGN do you allow the customer to consent to E-SIGN using a bank terminal?

Are they going to have to come back to the terminal to get their documents? They have to consent on a device that they have access too and on the one on which they can receive the documents.

RLCarey-

Thank you for the response. I am having "discussions" with others within my bank. Besides the regulation, which is gray on this, are there any other citations I can provide? The argument presented is - the customer is reading the consent agreement which clearly states they have a current version of a program that accurately reads and displays PDF files, as well as all the other system requirements. The customer states they meet all system requirements, clicks they agree and consents to E-SIGN, then why can it not be at a bank terminal? How would we know the customer is not completing the application on some public computer, or one that is not their own?

I know Richard Insley's response about taking a driving exam, but with the regulation not clearly defining "demonstrable consent", then it is hard to pose an opposing argument.

How does clicking on a button on the terminal agreeing to what you have outlined above meet the following legal requirement?

(ii) consents electronically, or confirms his or her consent electronically, in a manner that reasonably demonstrates that the consumer can access information in the electronic form that will be used to provide the information that is the subject of the consent;

How does that reasonably demonstrate that they can actually see the documents and retain them if they are using a bank terminal.

It is a two pronged requirement and you appear to be meeting only the first prong:

(i) prior to consenting, is provided with a statement of the hardware and software requirements for access to and retention of the electronic records;

The argument given back is that by including in the consent agreement the requirements to be able to read the disclosures, the customer knows what is needed and, by clicking agree, they are "reasonably demonstrating" they can access the information. Again, with E-SIGN being weak on defining what "reasonably demonstrates" means it is hard to fight the opposing view. Additionally, technology has advanced so much since E-SIGN was first established, unless a document is being presented in some rare file type most computers/browsers have the capability to read most any document.

Not trying to argue the point, but expressing what I am getting back.

I feel your pain. They might too if the regulators deem that you failed to deliver any of the required written documents to your customers. Making them agree on a bank terminal might also be a borderline UDAAP also.

I'm not sure how much more plainly it can be explained. Maybe show them this ABA Q&A #1:

http://bankingjournal.aba.com/2016/06/aba-compliance-center-inbox-julyaugust-2016/

All they are doing is demonstrating that they can do so from your terminals in your controlled environment. Does your management 'reasonably' believe and expect your customers to come into the branch and access their online banking only during your business hours? No, you need to be able to have them demonstrate that they can access their online banking from sources they wish outside of your banking environment.

Your management is partially correct that they may be on some random public computer and that is fine, but it should be outside of your bank's control (times, access, current required technology in place).

Follow-up question for you and your management: can any of you off the top of your head verify and prove away from your normal standard terminal access, that you in fact have met all of the system requirements, without having access to the system environment you will use? Doubtful.

Let me add an additional approach. What if the "disclosures" that are sent are provided within the email itself (not as an attachement or link). If the email doesn't "bounce-back" you can reasonably believe the customer received the email and is viewing the message. Similar to how marketing emails are sent.
Just another alternative thought.

Where's the demonstrable consent?? What do you mean in the e-mail itself?

The law requires certain steps to be taken before you can legally substitute electrons for paper and ink. Start by reading the law.