Demonstrative consent: more common questions about the suddenly hot E-SIGN Act

As mentioned in our last blog post about E-SIGN, AffirmX has received numerous questions about the E-SIGN Act over the past few months. In this post, we turn our attention to similar recurring questions centered around one somewhat simple phrase in the regulation: “reasonably demonstrate.”

In context, the regulation states that the institution should obtain consumer consent “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.” The point of that statement was to ensure that novice computer users were able to access their disclosures and electronic documents. This is a legitimate concern, because spam filters, pop-up blockers or changes in browser configurations could prevent electronic records from being received or opened.

Here are some common questions we’re hearing about demonstrative consent:

  • When statements and disclosures are provided via a PDF, what method do you recommend to “reasonably demonstrate” access, and what evidence should we retain to prove it? Our core processor’s system does not include any kind of method to force the user to “reasonably demonstrate” access, so it appears not all institutions are doing this.
  • Can you provide some examples of what actions would be considered acceptable to meet the requirement to “reasonably demonstrate” consumers can access information in electronic form?
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