Electronic and Remote Online Notarization – Preserving the Assurances of Notarial Acts
by Kathleen Butler, Executive Director, American Society of Notaries
Notaries Public and their notarial acts matter. Notaries are impartial, trusted witnesses to the execution of documents. They give relying parties confidence in the myriad, daily transactions that smooth the operation of government, commerce, the judicial system and our private lives. Since their inception, notarial acts have fulfilled their purpose so reliably that their formalities and core requirements remain virtually unchanged.
The same cannot be said for the tools Notaries use to perform their official acts.
Electronic Notarization, Remote Online Notarization
Electronic notarization and remote online notarization are transforming traditional notary tools and facilitating document workflows in ways that only electronic transactions can.
Electronic notarization, or “e-notarization,” is legal in most jurisdictions across the United States. This is due to widespread state adoption of the Uniform Electronic Transactions Act (UETA), and Congress’ enactment of the federal Electronic Signatures in Global and National Commerce Act (ESIGN).
Oddly, and despite our society’s complete integration of electronic processes and technologies into our daily lives, notarial acts have lingered in the paper realm. The average person or business would say it’s unusual for their notarizations to be performed electronically, on electronic documents. Yet most notarizations performed in American still involve a paper document, wet-ink signatures and the notary’s ink-stamp or embossing seal.
Thankfully, state enactments of the Uniform Law Commission’s Revised Uniform Law on Notarial Acts (RULONA) and subsequent updates have given electronic notarization a welcome boost. The 2010 RULONA update unified the treatment of tangible (paper) and electronic documents by incorporating them in the definition of “record” and authorizing notarial acts to be performed on “records,” thus authorizing electronic notarization. Since 2010, there have been multiple state introductions and enactments of RULONA, demonstrating the growing nationwide interest in explicitly authorizing electronic notarization.
Enter remote online notarization—notarial acts performed for a remotely located signer present by means of audio-video communications technology. Remote online notarization is rapidly gaining traction thanks to high interest in its perceived efficiencies and benefits. In the last two legislative sessions alone, eighteen states have enacted remote online notarization, a marked increase over the four states that authorized it from 2011 to the end of 2017. In some enacting states, remote online notarizations are allowed on electronic or tangible (paper) documents, but most specify its use solely for electronic documents.
Significantly, the Uniform Law Commission’s 2018 update of the RULONA created a new section authorizing remote online notarization of electronic or tangible documents, placing this new method of notarizing more affirmatively in the mainstream. Because remote online notarization primarily involves electronic documents, electronic notarization is receiving more attention, as well.
What are the distinguishing elements of traditional electronic notarization and remote online notarization? (These are broad descriptions that do not reflect the varied requirements of enacting states’ laws or administrative rules, especially with regard to remote online notarization.)
Traditional electronic notarization:
- Notarization of electronic documents with the signer in the physical presence of the Notary.
- Both Notary and signer are located in the Notary’s commissioning state or jurisdiction for performance of the notarial act. Both interact, together, with an electronic document displayed onscreen. Both use their respective electronic signatures to sign the electronic document, and the Notary (if required) uses an electronic notary seal.
- The electronic document presented for notarization, as well as the Notary’s electronic signature, may be available locally (for example, on a thumb drive) or accessed and securely retrieved from a server. The Notary’s use of a full-featured electronic notarization platform can be a matter of choice or a requirement of the commissioning state.
- Because the signer is physically present, the Notary uses some notary methods and tools common to paper-based notarizations: identifying the signer by personal knowledge, review of tangible ID credentials or use of a present identifying witness (where allowed), and often a paper journal instead of or in addition to any electronic journal that may be included in an e-notarization solution.
Remote online notarization:
- Notarial acts performed for a remotely located signer using audio-video communications technology to satisfy the mandate to appear before the Notary.
- The Notary is located in his or her commissioning state for performance of the notarization, but the signer may be anywhere.
- The notarization is deemed to be performed in the Notary’s state of commission; this fact is reflected in the venue portion of the Notary’s completed certificate.
- Most remote online notarizations performed today occur over a web-based platform incorporating the various technologies needed for authenticating participant access to the notarization session, such as verifying the signer’s presence, identifying the signer, electronically signing the document (both signer and Notary), completing the notarial act, creating a journal record, and recording the audio-video communications session to supplement the journal entry.
- Most enacting states allow remote online notarization for electronic documents only, but some also allow its use for tangible (paper) documents.
- Remote online notarizations employ multiple factors of identity authentication. The Notary identifies a remotely located signer by personal knowledge or an identifying (credible) witness and digital identity proofing technologies that are in common use for authenticating participants in sensitive online transactions.
Because these forms of notarization enable fully electronic, end-to-end document transactions and workflows, both—remote online notarization in particular—are subject to additional performance standards and regulations aimed at enhancing the security and authenticity of notarial acts and documents executed in a digital medium. Specific standards and regulations vary by state and typically are set by administrative rules of the state Notary commissioning officer.
While traditional notarization involving paper and ink will continue to thrive, electronic and remote online notarization offer benefits that make it an appealing option for businesses and other entities that regularly handle transactions requiring a notarial act.
- Tamper-evidence. A key component of both electronic notarization and remote online notarization is tamper-evident technology. This technology enables an electronic signature (the Notary’s and/or the document signer’s) to be affixed to an electronic document in a way that will indicate whether any changes are made to the document after the notarization is complete.
- More robust participant identification authentication (remote online notarization’s technology-assisted methods of identifying signers and other participants).
- Electronic audit trail of a document’s transactional life cycle.
- Streamlined workflows, centralized records processing and reduced paper-related costs.
- Fewer Notary errors. Electronic and remote online notarization technologies alert the Notary to missed data fields in the notarial certificate and journal entry.
- Enhanced notarial records. For example, remote online notaries must make and securely retain the entire audio-video communications session with the remotely located signer.
Becoming an Electronic or Remote Online Notary
State requirements and procedures vary so widely that they cannot be clearly summarized. Following are some typical policies, steps and requirements (not every requirement is applicable in every jurisdiction).
- Holding or obtaining a traditional Notary Public commission.
- Informing the commissioning officer of the intent to electronically notarize, filing for an “authorization” to electronically or remotely notarize, or obtaining a separate electronic Notary commission or remote online Notary commission.
- Paying application fees to the commissioning officer.
- Obtaining specialized training in electronic notarization or remote online notarization, as applicable.
- Obtaining a separate surety bond or assurance or increasing the limits of an existing bond.
- Choosing electronic or remote notarization technology that complies with statutory and administrative rule requirements or selecting from a list of providers approved by the commissioning officer. The Notary’s electronic signature and seal are often included with complete electronic notarization or remote online notarization technology solutions.
Impact on Notaries
What does adoption of electronic and remote online notarization mean for America’s Notaries? Well, in a world moving to replace human activity with robots and digital processes, it is gratifying that a flesh-and-blood Notary Public is the utterly essential component of these technology-driven procedures.
More importantly, neither electronic notarization nor remote online notarization change the formalities of a notarial act or the assurances those acts have provided for centuries.
No matter which authorized method of notarization is used, the Notary performs these procedural formalities:
- Requires the signer to personally appear in the Notary’s presence for performance of the notarial act.
- Positively identifies the document signer based on personal knowledge of the signer’s identity and/or review of satisfactory evidence of identification.
- Screens the signer for his or her voluntary intent to sign the document and apparent comprehension of the act of signing.
- Completes a signed and sealed notarial certificate.
With these formalities at their core, electronic and remote online notarizations give relying parties important, transactional assurances: that the named document signer and the person who appeared before the Notary and executed the document were one and the same; the signer executed the document willingly and with comprehension of his or her act; the Notary’s completed certificate is prima facie evidence of the facts stated in it (it can be presented as evidence in a legal proceeding without additional corroboration); and the Notary’s act will be recognized and accepted across U.S. state and international borders, without regard for differences in governing notary laws.
Explore these resources for more information about electronic notarization, remote online notarization and legislative activity.
- Notary Public Administrators Section of the National Association of Secretaries of State, Electronic Notarization: http://npa-section.com/electronic-notarization.html and eNotary Technology Providers (NPA Section Industry Member Directory): http://npa-section.com/industry-member-directory.html
- National Association of Secretaries of State; Remote Electronic Notarization: https://www.nass.org/initiatives/remote-electronic-notarization
- “Online Notarization – Implications for the Real Property Bar” by Tim Reiniger: https://cdn.ymaws.com/acrel.site-ym.com/resource/resmgr/news_and_notes/2019_august/2019-08_online_notarization-.pdf
Copyright 2019, American Society of Notaries