Is a fax subject to E-Sign?

I'm wondering if a fax falls under the definition of "electronic" for E-Sign: "The term “electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities." I was thinking that it does not, unless it is a fax delivered via e-mail. But others disagree because it is an image. I'd appreciate some advice on this, as I know our mortgage department is faxing some scanned disclosures to consumers without jumping through the E-sign hoops.

Thanks!

Good question. I don't think Congress had FAXs in mind when it enacted ESIGN, but there's nothing in the statute that addresses them one way or another.

I'd question the security of such transactions and how you verify it is your customer. If you are satisfied with that, it is moot. My own opinion is that it is a more traditional wet ink transaction and not E-Sign. But I can see the argument.