Disclaimer: The Electronic Commerce Security Act (ECSA) was repealed and replaced with the Uniform Electronic Transaction Act (UETA), effective June 25, 2021. Please note that this change may affect the continued accuracy of this guidance as it pertains to the ECSA.

No, we do not believe that the E-SIGN Act requires you to obtain affirmative consent before sending communications electronically about your mobile or online banking platform to business or consumer customers, provided that those communications do not constitute a change in terms or other notice that must be provided in writing.

The E-SIGN Act requires you to make certain disclosures and obtain the recipient’s consent before sending certain documents electronically, but those requirements apply only to documents that are required to be in writing by another law (such as Regulation E, which requires change in terms notices to be provided in writing). Otherwise, the general rule under both federal and Illinois law is that documents may be transmitted electronically without the E-SIGN disclosures and consent. We are not aware of any other law or regulation that would require you to send communications regarding online or mobile banking platforms in writing.

For resources related to our guidance, please see:

• E-SIGN Act, 15 USC 7001(c) (“ . . . if a statute, regulation, or other rule of law requires that information . . . be provided or made available to a consumer in writing, the use of an electronic record to provide or make available (whichever is required) such information satisfies the requirement that such information be in writing if [among several other requirements] the consumer has affirmatively consented to such use and has not withdrawn such consent; . . .”)

• E-SIGN Act, 15 USC 7001(a)(1) (“In general. Notwithstanding any statute, regulation, or other rule of law (other than this subchapter and subchapter II), with respect to any transaction in or affecting interstate or foreign commerce (1) a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and (2) a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation.”)

• Electronic Commerce Security Act, 5 ILCS 175/5-110 (“Information, records, and signatures shall not be denied legal effect, validity, or enforceability solely on the grounds that they are in electronic form.”)