For any disclosures to which the E-Sign Act applies, we believe that you should obtain a consumer’s consent — following the E-Sign Act procedures and disclosure requirements for obtaining consent — before providing these disclosures. In general, the E-Sign Act requires that the consumer already “has affirmatively consented” to the use of electronic disclosures (and has not withdrawn the consent) before your institution begins using electronic disclosures. 15 USC 7001(c)(1).  Consequently, we recommend providing separate E-Sign disclosures and completing the E-Sign consent process separately and before providing other written account disclosures, subject to the exceptions mentioned below.

Note that the E-Sign consumer consent provisions apply to any information that is required to “be provided or made available to a consumer in writing.” 15 USC 7001(c)(1). Not all disclosures are required to be in writing, including most (if not all) of the disclosures required to be provided with an account application. For example, Regulation B does not require account applications to be in writing. See 12 CFR 1002.2(f)72 Fed. Reg. 63445, 63447 (November 9, 2007).

In addition, in 2007, the Federal Reserve created exceptions to the E-Sign Act for electronic applications. Under those changes, many application disclosures required to be provided in writing may be provided electronically to electronic applicants “without regard to the consumer consent or other provisions of the E-Sign Act.” This exception applies to electronic applications for credit cards, HELOCs, and adjustable rate mortgages (ARMs) under Regulation Z. 12 CFR 1026.5(a)(1)(iii), 12 CFR 1026.17(a), 12 CFR 1026.46(c)(3), 12 CFR 1026.58(f). This exception also applies to the Regulation B application disclosures, such as the disclosures for self-testing and the collection of government monitoring information. 12 CFR 1002.4(d)(2).

In addition, for institutions that provide disclosures in both paper and electronic form, “the duplicate electronic form” of these disclosures “may be provided . . . without regard to the consumer consent or other provisions of the E-Sign Act because the electronic form of the disclosure is not used to satisfy” the disclosure requirements. See Regulation BRegulation ERegulation ZRegulation MRegulation DD. However, due to the timing requirements, certain disclosures must be provided electronically for online applicants. For example, under Regulation Z, card issuers must provide electronic account disclosures for electronic applications, “in order to meet the requirement to provide disclosures in a timely manner on or with the application or solicitation.” Official Interpretations, 12 CFR 1026.60, Paragraph 60(a)(2), Comment 6.