AnalysisHouse Bill 2318/Senate Bill 827 departs from settled Notary law and practice by allowing a Virginia Electronic Notary Public to dispense with the physical presence requirement and conduct an electronic notarization with the signer “appearing” via video-conference. (Note: In this analysis, the term “videconference” includes both video and audio.) Any videoconference eNotarization must conform to standards for criminal trials and proceedings as specified in the criminal statutes of the Code of Virginia. Proponents of the bills argued that if the Supreme Court of Virginia allows court hearings and proceedings to occur via video-conference for criminal defendants whose constitutional rights must be protected, then electronic notarial acts surely can be allowed using videoconference. The NNA vigorously opposed this legislation and mounted several grassroots campaigns urging Virginia Notaries to oppose these bills. Ultimately, large majorities in both chambers of the Virginia General Assembly voted to approve the measures. Last year, the NNA was successful in killing a similar bill after it had passed the House of Delegates.
A number of things must be kept in perspective with respect to these videoconference electronic notarizations. First, only electronic notarizations may be performed by video-conference. A Notary performing a paper notarization may not utilize this technology. Second, in order to perform electronic notarizations by videoconference, a person must be commissioned as an Electronic Notary. A regular Notary commission does not authorize a Notary to perform electronic notarial acts. A separate electronic commission must be obtained. Third, the video-conference provision is permissive. That is, electronic Notaries may perform an electronic notarial act via video-conference but are not required to do so. Virginia statute expressly allows a Notary to decline to notarize a document (COV 47.1-15), and the NNA will strongly recommend that Virginia Electronic Notaries not utilize videoconference and always require the signer to physically appear in the eNotary’s presence. Fifth, Electronic Notaries using video-conference must record and archive the complete video and audio of an electronic notarization for a period of five years in addition to keeping an electronic journal for each eNotarization previously required by statute.
So how does an electronic Notary actually identify a signer appearing via video-conference? An Electronic Notary who uses videoconference technology must identify the signer on the other end of the video feed either by personal knowledge or one of two brand new electronic identification methods. One is known as an “antecedent in-person identity proofing.” According to the standards for issuing digital certificates in conformance with the Federal Bridge Certification Authority, an applicant for a digital certificate may be identified using knowledge-based authentication questions that only the person would be able to know. Most people who use the Internet have been asked to answer knowledge-based questions such as, “what is your mother’s maiden name,” to authenticate to a Web site. However, the “antecedent knowledge” required by the Federal Bridge involves specific questions that would be virtually impossible for the average person to know or guess correctly. Incidentally, the new notarial act of “verification of fact” authorized by HB 2318/SB 827 permits a Notary to review public or vital records to ascertain or confirm facts regarding a person's identity or validate an identity credential on which satisfactory evidence of identity may be based. The bills’ proponents clearly intended this new power to be used precisely for accessing the credit reports and other databases containing the questions and answers used to establish a person’s identity for videoconference electronic notarizations. A second new form of identification an Electronic Notary may use to identify a signer via video-conference is a digital certificate accessed by a biometric (a thumbprint, facial or iris scan, for example) or which is accessed by means of a Personal Identity Verification (PIV) smartcard issued to federal employees. This latter form of identification provides a clue that government contractors doing business with technology firms in Northern Virginia may have been behind the enactment of HB 2318/SB 827. It is important to note that an Electronic Notary may not use any other traditional identification credential, such as a passport or driver’s license, to identify a person appearing via videoconference. In addition, credible witnesses may not be used. Most Notaries will never have heard of these new forms of identification, much less know how to use them, and the bill does not require Electronic Notaries to be educated in these new forms of electronic identification. This is a major shortcoming of the legislation and demonstrates that in the end, HB 2318 and SB 827 were intended to be used by a small fraction of Virginia Electronic Notaries having this knowledge and capability.
Curiously, this legislation also clarifies that in performing an electronic notarization, a Notary must exercise a high degree of care in identifying the signers of these acts. The NNA finds it ironic that untested means of identification will now become the basis for the standard of care used by Notaries in establishing personal identification for important financial documents such as mortgages, deeds, trusts and wills, and personal documents such as powers of attorney in the electronic world.
The architects of this legislation clearly intended to allow people all over the U.S. and even the world to appear before a Virginia Electronic Notary via videoconference. This will have implications for the choice of venue in disputes arising over these electronic notarizations. Out-of-state signers appearing via videoconference will have to accept that any electronic notarization shall be deemed to have been performed in Virginia and subject to the law and courts of Virginia.
The two bills also contain a few other noteworthy changes that have received less attention. First, changes have been made to the application process for an Electronic Notary commission. Second, prior law allowed a Virginia Notary Public to notarize outside of Virginia if the document was to be admitted for record within Virginia. The statute now allows Notaries to notarize out of state as long as the notarial act is performed according to Virginia law and not the law of the state where the notarization was performed.
In a concession to the NNA and others who expressed concern over the videoconference provisions of HB 2318/SB 827, the effective date for this provision was pushed back to July 1, 2011, in order to make the videoconference provisions secure. The NNA had fought for the bills to contain a reenactment clause requiring the General Assembly to pass the bills next year for them to become effective.
Finally, COV 47.1-6.1, a new statute enacted in 2009 after concerns were raised by the Virginia Governor about the security of electronic notarizations, requires the Secretary of the Commonwealth to develop standards for electronic notarization and the Virginia Information Technologies Agency to provide assistance to the Secretary relating to the equipment, security, and technological aspects of the electronic notarization standards. The NNA believes that rules implementing the video and audio conference provisions of this new law will be required in order to ensure that electronic notarizations performed via video and audio technology are secure.
Read House Bill 2318.
Read Senate Bill 827.