From the American Land Title Association (ALTA)
In response to the COVID-19 pandemic and the need for social distancing, several states have issued executive orders allowing for the immediate use of remote online notarization.
New York, Wisconsin, New Hampshire and Connecticut have all issued these orders, allowing for the immediate use of remote online notarization using audio-video technology. Some of the orders provide better consumer protections and anti-fraud measures.
ALTA has identified several issues with using public-facing technologies such as FaceTime, Skype and Zoom to facilitate transactions. ALTA has noted that these types of platforms don’t
• Confirm identity: There wouldn’t be adequate evidence to validate a signer’s identity, in order to protect against fraud. Multi-factor authentication measures such as Knowledge Based Authentication questions and tools to verify a driver license or other ID is valid wouldn’t be used.
• Preserve a record of the signing: There wouldn’t be an audio-video recording of the signing event.
• Provide a signing or notarization feature: There is no way for a signer or notary to provide an electronic signature on documents.
• Be tamper evident: There would not be a tamper seal on documents associated with the notarization.
• Secure non-public information: Real estate transactions require the exchange of non-public information. This data exchange must comply with safe-guards under the Gramm-Leach-Bliley Act.
An option that provides better safeguards is the federal bipartisan Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2020, which was introduced by U.S. Sens. Kevin Cramer (R-N.D.) and Mark Warner (D-Va.) on March 18. S. 3533 permits immediate nationwide use of RON with minimum standards and provide certainty for the interstate recognition of RON.
The SECURE Notarization Act would:
1. Authorize every notary in the US to perform RON.
2. Require tamper-evident technology in electronic notarizations.
3. Provide fraud prevention through use of multifactor authentication for identity proofing and audio-visual recording of the notarial act.
4. Allow signers outside the US, such as military personnel and their families, to easily and securely notarize documents.
5. Complement existing state laws, while allowing states the flexibility and freedom to implement their own RON standards.
6. Builds on the foundations of the Interstate Recognition of Notarizations (IRON Act of 2011), while adding additional consumer safeguards.
7. Follow a similar structure of complementary state and federal legislation, such as the Electronic Signatures in Global and National Commerce Act (ESIGN) and the Uniform Electronic Transactions Act (UETA).
8. Implement 2018 Treasury Report recommendations that Congress consider legislation to provide a minimum uniform national standard for electronic and remote online notarizations. Noting federal legislation is not mutually exclusive with continued efforts at the state level to enact a framework governing the use of electronic methods for financial documents requiring notarization.
The SECURE Notarization Act wouldn’t:
1. Impede consumer choice.
2. Preempt state laws that adhere to uniform consumer protections, such as those laws based on the non-partisan model state law – Revised Uniform Law on Notarial Acts, 2018 – proposed by the Uniform Law Commission.
3. Infringe upon state data privacy laws.
4. Impact state law on testamentary wills and trusts.
5. Change state law governing the practice of law.
6. Favor specific technology or restrict the use of new and emerging advancements.
Contact ALTA at 202-296-3671 or email them.