Advancing Remote Online Notarization Across the U.S.
Remote online notarization (RON) laws are continuing to gain momentum across the United States, the first having been passed in 2011 by the Commonwealth of Virginia. Many other states have since followed suit with over 38 having enacted permanent remote online notarization (RON) laws, and eight enacting new statutes in 2021 alone. The Governor of New York recently signed a bill to allow remote online notarization (RON), scheduled to go into effect in June 2022.
At this time, some states, such as California, have not yet passed RON legislation. In early 2021, Assembly member Reggie Jones-Sawyer introduced State of California Assembly Bill 1093 (AB 1093) which would rectify this situation by authorizing notaries public registered in California to be able to perform remote online notarization in the state.
In our recent webinar, California State Assembly member Jones-Sawyer highlighted the increasingly important role of notaries public since the beginning of the COVID-19 pandemic:
“California notaries public are a vital component of everyday life who perform invaluable services for the business, nonprofit, legal and real estate community. These industries cannot function without notaries public. However, during the pandemic, mobile notaries services performed an often unseen essential service ensuring that our businesses and nonprofits were able to continue serving consumers throughout the state. The COVID-19 pandemic has highlighted the need for more flexible options for accessing notary services.”
In this blog, we’ll look at how remote online notarization is different from traditional notarization, and why it’s important for additional states, such as California, to pass RON legislation.
What is RON vs. traditional notarization?
Notarization is an identity-based, anti-fraud measure performed by a government-authorized person called a notary public. A notary public’s role is to verify a document signer’s identity, to witness the signing of a legal document and to provide an independent check on the mental capacity of the signer. Notaries public affirm their completion of these critically important tasks by affixing their signature and notarial stamp or seal to the signed document. Such notarizations are considered self-authenticating court evidence that a document was properly signed.
When allowed under state law, remote online notarization (RON) is an efficient and effective alternative to traditional in-person notarization. It’s especially beneficial to those individuals, who are unable to easily travel to access notarial services, like active-duty military stationed overseas, child and elder caregivers, sick or elderly persons; those who have limited transportation options; and those exercising social distancing measures.
A RON solution validates a signer’s identity remotely in the following ways:
- Dynamic knowledge-based authentication (KBA)
- Automated credential analysis of government-issued identification
- Remote presentation (presenting a government-issued ID via webcam)
Many existing RON laws require notaries public to use at least two of the identification methods, but most require all three, thereby addressing any perceived deficiencies in any one specific method. These states typically also allow the notary public to identify a signer based on the notary public's personal knowledge of the signer’s identity or through the oath or affirmation of a credible witness, just like for a paper notarization.
The means for identifying signers, the associated digital workflows used to perform RON acts and the ability to collect additional evidence of the signing act, such as video recording the signing and notarization acts, produces greater evidentiary confidence of a person's identity and reduces the risk of fraud, than using a traditional paper notarization process. According to the National Notary Association, the leading authority on the American Notary office, with today's communication technologies, a notary can make determinations of a signer's willingness and mental competence just as well as a notary public who is physically present with the signer. Further, the recording of the signing and notarization ceremony provides both the signers and the notary public with greater confidence that additional evidentiary information is collected for immediate use if any sort of dispute later ensues.
How does remote online notarization work?
Let’s look at how RON technology provides notaries public and consumers the ability to complete a notarial act virtually in a safe, secure, online environment. In an example shared in our webinar, a state’s Department of Transportation project manager is helping a grantor complete a quitclaim deed. Using the RON solution, the project manager creates a “notary group” in which she assigns a notary public and one or more signers of the deed. She then tags the deed with all of the necessary fields to capture signer and notary public data. The signers and notary public are then invited to join a secure, audio-visual notarization session.
The RON solution proceeds to guide the signers through an audio-video system check, identity verification, document review and signing process. During the live audio-visual session, the signers and notary public can speak freely, ask questions and make sure the information looks accurate. Once ready, the notary public witnesses the electronic signing of the agreement, completes the electronic journal and affixes his or her electronic notary seal to the document. Within minutes, they’re able to sign and notarize the deed completely remotely.
RON provides a high level of security and privacy for all parties
Compared to traditional in-person notarial services, RON improves privacy and security by creating strong authorization through technology solutions that fulfill audio-visual capabilities, multifactor authentication of a signer and video recording of the signing and notarial acknowledgement.
- Multifactor authentication is the industry standard for identity proofing, as it requires a person to confirm their identity using at least two different methods of verification, which significantly reduces the chances for fraud. Multifactor authentication is used in remote online notarization unlike notaries performing a traditional paper notarization.
- Audio-visual recording is retained for the length of time required by state laws (generally 5 to 10 years) and accessed as needed by a party to the transaction, court or government entity. State privacy laws typically require the signer to provide affirmative consent to being recorded and limit the use of signer data to only effectuate the purpose of the underlying notarized transaction. Traditional paper notarization does not allow for such enhanced security and privacy controls, which can serve to capture subtleties in signer behavior that might detect, or even discourage, fraudulent behavior and also fails to consistently handle and secure an individual’s personal information.
- Digital audit trail is a series of electronic logs that document various aspects of the signing and notarization event including validating the method and the success of the multifactor authentication, visually recording individuals involved in the signing and notarization ceremony, and documenting additional information about the signers and the notary including state-required information, such as date/time of the ceremony, which can be incorporated into tamper-evident digital files that associate all of this information with one another. Such enhanced evidentiary information can be used in a dispute and is unavailable in traditional paper notarization.
- Secure, encrypted communication methods in RON solutions further protect individuals against unintended intrusion, which goes well beyond those methods used for traditional paper notarization.
RON laws do not exempt RON records from the purview of other state laws, such as state data privacy and security laws. Remote online technology vendors are specifically subject to such data privacy laws and are not exempt from associated consumer protections. In California, for example, the California Consumer Privacy Act (CCPA) and California Privacy Rights Act (CRPA) specifically protect such consumers and address privacy concerns.
RON reduces ambiguity in interstate notarization laws
By enacting RON legislation, in-state notaries public will be empowered to perform RON within their state just as out-of-state notaries public currently can perform RON sessions out of state, which are regularly recognized and accepted in those states that currently do not have RON laws.
Today, interstate notarization recognition statutes allow for out of state notarization to be recognized in states that do not have active RON legislation, such as California. However, some more conservative entities, such as government sponsored enterprises, may prefer to have in-state statutes that explicitly allow for the use of remotely-notarized documents.
Creating RON legislations in these states expressly allows for remotely-notarized documents to be performed, eliminating any potential ambiguity in this area of the law and also empowering California notaries public to offer this invaluable service in California just as their out of state colleagues can do today for California residents.
Acceptance of out-of-state notarization
States have laws recognizing the authority of notarial acts conducted by out-of-state notaries public. A notary public is authorized in a specific state and adherence to that state’s notarization requirements establishes the authority of that officer to perform a notarial act in that state, which then is recognized as effective in another state. At this time, documents notarized in one state are being accepted in other states whether RON legislation exists or not, pursuant to both the Interstate Commerce Clause set out in the US Constitution as well as specific state laws.
“It's not really the Secretary of State that controls what can or cannot be recorded in California, it's up to the County Recorders, and they've made a determination that RON-notarized documents from out-of-state, executed and notarized out-of-state, are acceptable for recordation,” shared Craig Page, executive vice president and council at California Land Title Association. “We'd like to see California notaries to be so empowered that they can actually do it within California, both within title companies, and independent notaries so that we can bring that notarization.”
Without the passage of RON legislation in states like California, this trend of using out-of-state notaries will only continue, thereby hurting notaries public who currently are not authorized to perform RON in states without active RON legislation. Further, without the passage of RON legislation, these states will have limited, if any, control over what out of state notaries notarize documents for in-state residents and what processes and protections are in place to protect such individuals. Passage of RON legislation has the potential of rectifying this situation.