There is a significant push to
move the process of notarizing documents from in-person to over the internet
(coining it as the “RON movement” which means Remote Online Notary
movement). The organizations pushing for this move are marketing online notarization
as bringing the “old school” process of in-person notarization into a
“modern convenient”, “business transformation” over the
internet notarization that will result in “real estate savings”.
But at what cost?
Consumers, courts, and law
officials understand that Notaries Public are trusted individuals commissioned
by their states to help protect the public from fraud when they place their
seal on documents. “Through the process of notarization, Notaries deter
fraud and establish that the signer knows what document they’re signing and
that they’re a willing participant in the transaction.” (Citation from NNA)
There are particular screening processes the notaries take to determine a
signer’s identity and their understanding of what they are signing and
willingness to sign. Doing this type of screening over the internet makes
the screening process more difficult. And the current security processes the
RON movement utilize for notarizing real estate transactions have yet to be
tested in any court of law.
Notarization (“RON”) has yet to prove it deters fraud.
In an online notarization, the
process to identify a customer shifts away from notaries public to a third
party process that utilizes “modern tools that validate identity online,
such as credential analysis and knowledge-based authentication” Notarize.com citation. However,
these “modern tools” can be manipulated by “modern”
identity theft fraudsters who use the internet to find the security question
answers to bypass the validation mechanisms used in RON. With online
notarizations, the notary public doesn’t have the ability to physically examine
identification to independently authenticate the identity of the signer. And
with another high-tech fakery like “deep fake” video,
the notary public can be fooled into certifying the signature of a
it difficult for notaries to provide evidence for law enforcement.
The National Notary Association
has indicated in their the 2017 “MODEL ELECTRONIC NOTARIZATION
ACT” the need for online notarization to require the capture of
principals’ and witnesses’ thumbprints for all real property documents. (Ch 9, § 9-4 Journal Entries,
pg. 51) NNA asserts that many impostors will be deterred from
committing forgery because they will not want to leave a thumbprint behind in
the notary’s journal as proof of their attempted crime. Prosecutors often use
the journal evidence to bring forgers to justice. Currently, no RON
implementation has provided the ability to obtain thumbprints. California
currently requires notaries to obtain thumbprints for notarizations dealing
with deeds and power of attorneys. However, the current California online
notarization bill, AB 199, has removed this requirement. If this bill passes
into law as it is currently written, it will be more difficult to provide
evidence of fraudulent notarized transactions.
diminishes the ability for Notaries Public to determine the willingness of
To determine signers understand
what they are signing and their willingness to sign, notaries public observe
the nuances of the signers’ non-verbal communication because nonverbal
communication tends to do the work of communicating emotions more than
verbal. In the online environment, it is more difficult to pick up
what is being communicated nonverbally. Notaries may not be able to hear
the signer’s tone of voice, see their gestures, or know if someone else in the
room is intimidating them. The ability to determine the signers’ willingness
and understanding to sign is therefore diminished when the parties engage over
Why the Rush?
As the Vice President of Old Republic Title National Underwriting Counsel wrote: “Caution is the watchword here. State, federal and bankruptcy courts have invalidated mortgages and other documents due to defective notarizations. When that happens, the lender’s lien position is not only jeopardized but the enforceability of the mortgage itself is put at risk.” Current processes used by RON are not entirely equipped to handle safeguarding fraudsters in the way in-person notarizations are. The process of notarizing documents has been going on for hundreds of years and there is no upcoming end to this process. Before states hop on the bandwagon of RON, the lawmakers should assess their current process and determine if the movement to online notarizations will benefit or provide a detriment to their current process.
Federal laws in recent years have pushed to protect consumer privacy and security, lawmakers would benefit to consider the costs and benefits of RON for their constituents. Notaries Public are trusted by the public at large, courts, businesses, and law enforcement. There should be no reason to rush towards an untested process that may very well create more consumer fraud and abuse which can lead to distrust of the notary public profession.
How notaries serve the public seems to be working just fine going on several hundred years now. Let’s take a step back and focus on considering all avenues to safeguard the consumer in every way. When it comes to notarization, consumer protection is the ultimate purpose.