Answer by Andy Zavoina: E-SIGN applies when you make disclosures which are required to be written under federal law, electronically. Some disclosures, but very few, don't require E-SIGN in advance. If you are not allowing any electronic transfers if the acceptance of both agreements is not acknowledged, the disclosure isn't required.
If this is viewed as "forcing" the consumer to accept E-SIGN that is a separate issue as that isn't allowed. You are though, more so restricting the product or features available. That may not be against the E-SIGN law, but it may restrict the market you offer your product to, placing you at a marketing disadvantage. My senior citizen father has no computer and couldn't do anything in e-form. That is his choice. Since he has government benefits via direct deposit, your scenario may prohibit him from banking with you.
Answer by Richard Insley: I've heard a lot of questions of this kind since ESIGN was enacted in 2000. Upon discussion, in many cases, "one click ESIGN compliance" turns out to be grossly inadequate--usually lacking an effective "test drive". Since the beginning of BOL, we have discussed this topic frequently and in great detail. Unless you are absolutely sure that your entire ESIGN consent process (including the parts you didn't include in this brief question) measures up to the requirements of Section 7001(c)(1) of ESIGN, take some time and review a number of those threads.
First published on BankersOnline.com 4/29/13.