Congress proposes federal remote notarization bill — what Notaries need to know
In February, Congress introduced the SECURE Notarization Act, a bill that could have a major impact on interstate in-person electronic (IPEN) and remote online notarizations (RON) if it becomes law. Here’s what Notaries should know: What is the SECURE Notarization Act? How will the Act affect Notaries if it becomes law? What’s the current status of the Act? Does the NNA support or oppose the Act? What is the SECURE Notarization Act? The “Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2023” (SECURE Notarization Act) was introduced in the 2023 Congress in February. It would authorize Notaries nationwide to perform IPENs and RONs if the notarization occurs in or affects interstate commerce, even if the Notary’s home state does not have in-person electronic or remote online notarization laws on the books. Back to Top How will the Act affect Notaries if it becomes law? If the Act becomes law, Notaries in states without in-person electronic or remote online notarization laws would have blanket authorization to perform IPENs and RONs exclusively for transactions involving interstate commerce. Notaries in states that have existing IPEN and RON laws would continue to perform these notarizations under the authority of their state law. The Act would further set minimum federal standards for performing technology-based notarizations. For in-person electronic notarizations, Notaries would be required to attach or logically associate their electronic signature and all other required information to the electronic record (for example, the Notary’s printed name, commission expiration date, and electronic seal) in a manner that produces evidence of any change after the notarization is performed. For remote online notarizations, the remotely located signer would have to personally appear at the time of notarization before the Notary Public using communication technology. Notaries must identify a remotely located signer through (1) at least 2 distinct processes or services to verify the identity of the remotely located signer, (2) the oath or affirmation of a credible witness who is either physically present before the Notary or present before the Notary using communication technology, or (3) the Notary’s personal knowledge. In addition, Notaries would have to create and retain a recording of the notarization and confirm that the signer’s statement and/or signature was made on the same document that was notarized. If enacted, the SECURE Notarization Act may preempt the in-person electronic or remote online notarization laws of states that do not contain the minimum standards in the Act, affecting how Notaries in preempted states perform these notarizations. Two examples are Alabama and South Dakota. Alabama’s law does not conform to the minimum identification standards under the SECURE Notarization Act. South Dakota’s law does not require the Notary or the Notary’s agent to create and maintain a recording of each remote notarization. In addition, state laws giving greater legal effect to the implementation or application of a specific technology or technical specification would be preempted by the Act. This could require states to rewrite their laws. Back to Top What’s the current status of the Act? It was introduced on February 17, 2023, passed the U.S. House of Representatives on February 27, and is currently in the U.S. Senate and assigned to the Senate Committee on the Judiciary. If you’d like to read more about the bill, Congress.gov has information on the SECURE Notarization Act’s current text and status. Back to Top Does the NNA support or oppose the SECURE Notarization Act? The NNA has not taken a position on the SECURE Notarization Act. The NNA believes the interstate recognition provision in the Act could be needed to protect the Notary Public office nationwide if bills seeking to undermine the acceptance of RONs across state lines currently being considered in California and Connecticut are enacted. On the other hand, the NNA does not support Congress in determining who may perform notarizations and how they are conducted. These matters traditionally have been determined individually by each state. The NNA also has questions about how the Act will affect Notary liability. For example, the Act allows a Notary of a state without a remote online notarization law to perform a RON if the notarization occurs in or affects interstate commerce. Could a Notary commissioned in a state that does not have a RON law be liable if a court decides later that the transaction wasn’t related to interstate commerce? The NNA invited industry experts to offer statements about why they support or oppose the bill: Statement from Renée Hunter, General Counsel of Notarize, supporting the SECURE Notarization Act: “As RON continues to grow in popularity, the benefits of the SECURE Notarization Act are clear. The legislation will provide greater clarity around remote notarizations and ensure that minimum standards are applied equally across all 50 states. It is important that the Act establish a floor while giving states the flexibility to implement additional standards — a crucial component of a state's role in regulating Notaries Public. SECURE will guarantee that Notaries nationwide can access RON and give the people they serve the confidence they deserve when traveling or doing business between states. While Notarize is committed to working with each state on implementing RON, companion legislation at the federal level is needed to deliver these important protections.” Statement from Timothy Reiniger, Director, Reiniger LLC, opposing the SECURE Notarization Act: “If enacted in its current form, the SECURE Act will cause serious damage to the notarial profession in the United States. By preventing (or preempting) states from setting technology performance requirements and, in effect, shifting technology determinations to the private sector, Notaries will be subject to using the multiple proprietary technology platforms and fee structures of the banking, land title insurance, and legal services industries. It is far more economical for Notaries to be able to select just one interoperable standards-based state technology that all sectors must recognize.”
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