The E-Sign Act & Demonstrable Consent.
The E-Sign Act & Demonstrable Consent.
The Electronic Signatures in Global and National Commerce Act (E-Sign Act), signed into law on June 30, 2000, provides a general rule of validity for electronic records and signatures for transactions in or affecting interstate or foreign commerce. The E-Sign Act allows the use of electronic records to satisfy any statute, regulation, or rule of law requiring that such information be provided in writing if the consumer has affirmatively consented to such use and has not withdrawn such consent. Subject to certain exceptions, the substantive provisions of the law were effective on October 1, 2000.
From time to time, we (IMM) receive questions from prospective or client Financial Institutions regarding the element of the E-Sign act commonly referred to as “Demonstrable Consent”. Section 101 (c) makes reference to the when and if the consumer consents electronically, or confirms his or her consent electronically, it must be in a manner that reasonably demonstrates the consumer can access information in the electronic form that will be used to provide the information that is the subject of the consent.
So how does a Financial Institution ensure that they are meeting that requirement today? Here we will share how our solution (IMMeSign) allows a Financial Institution to satisfy the demonstrable consent element of the E-Sign Act.
1. Technology Matters
An important aspect of understanding the original provision of demonstrable consent was due to the state of the technology landscape at the time. In 2000, E-Sign technology was generally proprietary requirement special hardware or software to view and eSign documents. This is in particular what drove the demonstrable consent requirement when the act was written.
In today’s technology (and as it has been for a number of years now) HTML5 is now a pervasive internet technology language that is contained within all commercially popular internet browsers and on all devices that support internet browsers.
IMMeSign leverages HTML5 for the viewing and signing of documents during a consumer signing ceremony. The document is displayed using HTML5 in a “view-only” mode, allowing the consumer to view and sign documents using any modern technology device supporting an internet browser. Through this technology approach, there is no special hardware or software required for the consumer to perform the viewing and signing of documents electronically.
2. The Consumer Consent
IMMeSign’s transaction process flow requires the consumer to explicitly consent to the use of Electronic Records and Signatures before they can view and/or sign the documents. Our philosophy is to capture the consent for each and every transaction. This consent, like the entire IMMeSign consumer experience, occurs using the same industry-standard HTML5 technology reviewed above.
The consumer also has the option to opt-out of the electronic transaction and express their desire to complete the transaction using traditional paper and wet-signature processes. Such consent (or opt-out) is captured and recorded in the transaction history audit file that is generated and stored for future reference and research as required.
3. Can’t View. Can’t Consent.
The manner in which IMMeSign satisfies the demonstrable consent is that if the consumer has been able to view the consent and accepts such consent (checking a box and then selecting the “Accept” button), then they will also be able to view the documents since both occur using the same HTML5 technology.
The recordation of the consumer consent actions in the transaction history audit file then become reasonable evidence that the consumer could view the documents that they were subsequently asked to sign, thereby satisfying the demonstrable consent aspect of the E-Sign Act.