Updated 2-14-23. Collecting signer thumbprints for a journal entry has long been considered an effective way to deter fraud. But Notaries must always respect and protect a signer's privacy when requesting a thumbprint.
The case for Notaries collecting thumbprints
According to the Federal Bureau of Investigation, biometrics, such as thumbprints, are the "measurable biological (anatomical or physiological) or behavioral characteristics used for the identification of an individual."
As a biometric identifier, a signer's thumbprint affixed in a journal of notarial acts offers irrefutable identification of the signer and helps Notaries prevent impersonation and/or forgery. It is for this reason that the practice is still heralded in some areas, particularly for transactions involving real estate and powers of attorney documents.
However, currently only one state, California, requires a journal thumbprint record for all documents affecting real property, as well as all powers of attorney. (Government Code, Section 8206.)
California law enforcement and public prosecutors have lauded the value of thumbprints as effective in preventing and prosecuting frauds.
Notary privacy issues and collecting signer thumbprints
Despite the value of collecting thumbprints as a safeguard against fraud, there are issues associated with the practice; namely, privacy concerns and tightening regulations regarding the collection of such biometric data.
We now live in an age filled with high-tech fraud, identity theft and corporate data breaches that can, in an instant, expose the personal and financial information of millions of consumers. This ongoing concern over individuals' private information, particularly regarding the collection, use and storage of certain biometric identifiers, has become a major problem — one that some states and even private businesses are looking to regulate. Several of these changes directly impact how Notaries are allowed to collect and retain signer thumbprints.
Texas law, for example, prohibits Notaries from recording biometric information such as a thumbprint in a journal entry (1 TAC 87.50[a][3]). Texas Notaries who are authorized to perform remote online notarizations may not release audiovisual recordings of a notarization that includes a person's biometric information unless the person gives permission or the record is requested by a court or the Secretary of State (1 TAC 87.52[b]).
Utah's remote online notarization law requires a remote Notary to keep an electronic journal, including an audio and video recording, of each notarization the remote Notary performs. The electronic journal entry must include a description of the dynamic knowledge-based authentication or biometric data (such as a fingerprint) that was used to provide satisfactory evidence of identity [UCA] Subsection 46-1-2(19)(a)(ii).
And it's not just state governments that are seeking to regulate the collection of thumbprints. A major mortgage lender issued a bulletin prohibiting the Notary Signing Agents handling its loans from collecting thumbprints in their journals if they did not have a Notary commission in a state that required it (only California at present). In states that do not have a thumbprint requirement such as Florida, Notaries may not refuse to notarize because a signer does not wish to provide a thumbprint.
Given this heightened caution about guarding personal identifying information, it is important for Notaries to know ahead of time if their state allows or regulates the collection and usage of signer thumbprints and proceed accordingly. NNA members can contact the Notary Hotline anytime they are unsure of their state’s regulations regarding thumbprinting.