Legality, Technology of Electronic Notarization At Issue
A May Hague Conference on Private International Law forum will address a potential fight over the seemingly innocuous issue of electronic notarization of public documents. Some say e-notarizations and e-apostils which authenticate notary signatures in documents sent abroad -- are legal under various U.S. and model laws. But U.S. notaries say those laws only pave the way for eventual e-notarization. Opinions vary over whether to use a particular technology and whether e-notarizations and e-apostils should come under more stringent requirements than paper counterparts.
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The conference will consider whether e-notarizations and e-apostils fall under the Apostille Convention. It also will look at technologies being developed for e- notarization and whether they're relevant to e-apostils.
Four main issues surround e-notarization, said Conn. lawyer Houston Lowry. Though not complex, he said, problems arise when people try to exploit them. The first is whether e-notarization is legally doable. Lowry thinks it is under the United Nations Commission on International Trade Law Model Law on Electronic Commerce, the Uniform Electronic Transactions Act (UETA) and the U.S. Electronic Signatures in Global and National Commerce (E-Sign) Act.
Then there’s the question of whether there should there be e-apostils under the Hague Legalization Convention. “I would say yes, although there presently is no affirmative legal instrument on point,” Lowry said. The Hague Conference will likely issue guidelines on this soon, he said.
The 3rd issue is whether one technology should be favored over another for e-notarizations and e-apostils, Lowry said. “Past experience indicates no, but I expect there will be a fight on this issue.” He expects the U.S. govt. to push for use of Adobe’s electronic signing feature, which lets digital signatures be verified with free software, making it easier to use than mechanisms with proprietary systems.
The final issue is whether e-notarizations should come under special requirements not imposed on paper counterparts, Lowry said. In the past, the U.S. position has been “no,” he said, but each vendor wants its system adopted exclusively. U.S. law bars requirements on electronic matters from being more onerous than those opposed on paper-base systems, he said: “However, the notaries seem to feel to the contrary.”
The National Notary Assn. (NNA) says neither UETA nor E-Sign permits electronic notarization, a spokesman said. Their intent is “really to provide electronic signatures the same legal guarantees that pen-and-ink signatures have; therefore, UETA and E-Sign allow for the eventual practice of electronic notarization,” he said.
A few states have passed laws purporting to permit e- notarization, the NNA spokesman said, but in fact these laws merely let people use digital certificate technology to sign an e-document instead of appearing before a notary. Because those laws violated core principles of notarization -- in particular, the signer’s physical presence before the notary -- and because digital certificate technology never took off in the U.S., the laws didn’t trigger long-term programs, he said.
Since adopting UETA and E-Sign, most states have reserved the right to impose more specific laws and rules to govern notaries performing e-notarization, the NNA spokesman said. “Because the public must trust notaries, states have wisely, in our opinion, taken time to review and consider both the benefits and security concerns surrounding electronic signatures to support electronic notarization,” he said. The NNA “supports this cautious approach.”
Notaries believe industry and govt. will come up with multiple technologies for performing secure e- notarizations, the NNA spokesman said. However, he said, because notaries are criminally and civilly liable for the acts they perform, “we encourage notaries to care very much about the technologies they choose to use.” The NNA wants consistent, state-sponsored e-notarization rules that reflect emerging and existing standards while keeping the important safeguards of traditional notarial customs and practice in mind, the spokesman said.
Digital signatures are sound technology when used properly, the NNA spokesman said. But the group is concerned that digital signatures not be issued haphazardly. While they can “be an excellent fraud- deterring instrument in the hands of a bona fide notary public,” he said, the same technology can foster fraud in the hands of a criminal.
E-notarization isn’t as advanced in Europe as in the U.S., said Tomasz Kozlowski, secy.-gen. of AVRIO-Advocati, a European-based legal network. European notaries public have much greater responsibilities than their U.S. counterparts, he said. U.S. notaries certify only that a particular person has signed a document; European notaries also are responsible for document content, Kozlowski said. E-notarization isn’t likely to happen soon in Europe, he said, because there’s no agreement on a specific technology.
The Hague Conference forum is May 30-31 in Las Vegas. It’s hosted by NNA and the International Union of Latin Notaries.