Electronic Signature Consent: Records and Intent

What is electronic signature consent?

Electronic signature consent can refer to different decisions. A person may agree to use electronic records, intend to sign an agreement, or authorize a particular information use. Those decisions should be identified rather than collapsed into one checkbox.

Three different questions

• Electronic-channel agreement: may the parties use the chosen electronic method or deliver records that way?
• Signing intent: did the person adopt the electronic action to sign the identified record?
• Other consent or authorization: does a privacy, healthcare or other rule require a distinct permission with its own content?

A disclosure about using electronic records does not, by its title alone, mean the person has agreed to every term in the underlying document.

When does ESIGN require consumer safeguards?

Under 15 USC 7001(c), the relevant trigger is electronically satisfying a legal requirement to provide information in writing to a consumer in a covered transaction. It is not a universal consumer-checkbox rule for every electronically signed business contract.

The safeguards include affirmative consent that has not been withdrawn, clear information on paper options and withdrawal, the records covered, how to update contact information and obtain paper copies, and hardware/software requirements for access and retention.

The person must consent electronically, or confirm consent electronically, in a way that reasonably demonstrates they can access the form of information that will be used. A change creating a material risk of losing access or retention ability can trigger further notice and withdrawal protections. The FDIC’s explanation of the consumer provisions sets out these requirements in its supervisory context.

Consent, withdrawal and the agreement

The scope and consequences of withdrawal must be understood; withdrawing electronic-delivery consent is not automatically the same as canceling an agreement already entered. Applicable law and the transaction’s terms determine those separate questions.

Consent rules are jurisdiction-specific. Under Australia’s federal Electronic Transactions Act, the relevant recipient or Commonwealth-entity conditions differ from ESIGN’s consumer-disclosure safeguards.

Also identify the relevant state framework, such as a UETA enactment, and any ESIGN exclusions. If health information is involved, a required HIPAA authorization has its own purpose and content. Identity checks, witnessing and representative powers cannot be established by a generic electronic-consent statement alone.