In the process of overhauling the online banking agreement. Looking at some examples out there in cyber world. Some have Esign consent on the online agreement document and some don't. Our current online banking disclosure has some ESIGN verbiage but, in my opinion, is not complete. It doesn't address how to consent (clicking the box) or anything. So my questions are, Are we required to have ESIGN on the online banking disclosure? If not, is there any reason why it would be included on there? And if it does need to be included for some reason, do you have to make reference as to how they can consent? I.E., checking the box.

There is no requirement to include it. Including it without a format for the consumer to provide electronic consent is a worthless exercise.

Don't pay much attention to the way other institutions handle ESIGN. They could be doing it wrong, your system may be totally different, or both.

ESIGN deals with only two things: electronic signatures and electronic delivery of documents--neither of which can be forced on consumers. ESIGN permits no implementing regulations, so you have to work with Section 7001(a), (b), and (c)(1)(A), (B), and (C), located here: https://www.bankersonline.com/regulations/esign-7001 .

ESIGN legalizes (but does not require) electronic signatures and doesn't define or regulate what is or is not an electronic signature. Although that simplifies the rule, you are left with all the risks.

ESIGN also legalizes (but does not require) e-delivery of documents, PROVIDED you conduct the proper "handshake"--spelled out in Section 7001(c)(1)(A), (B), and (C). Within the banking industry, we frequently refer to the "handshake" as "informed demonstrable consent." When you and your customers (one-by-one) have completed this consent exercise, the e-documents you send to these consenting customers become the legal equivalent of paper. Obviously, it's VERY important that the law recognizes your e-documents as "written" when the content of the document is dictated by Reg. E, DD, Z, or some other federal law or regulation that requires you to deliver the documents' content "in writing."

There are lots of old threads (going all the way back to 2000) dealing with the right and wrong ways to deliver ESIGN's pre-consent disclosures and conduct the "test drive" that validates the consumer's consent. As you study the Act and old threads, you should notice that ESIGN consent works more like the system by which you obtained your driver's license than a typical banking regulation.

Thank you both very much!