NASS promulgates enotarization standards and implementation guide

February 28th, 2018

NASS Publishes E-notarization Guide

On February 18, 2017, the National Association of Secretaries of State (NASS) adopted an eNotarization Implementation Guide, a document designed to help authorities that regulate notary publics by offering strategies for the important decision points involved with administering e-notarization legislation. The organization also amended and adopted national standards for electronic notarization originally put in place in 2006.

The new guide sets out both policy and practical considerations in several categories and circumstances. Policy considerations include whether to enact robust laws with less rulemaking or the opposite – less forceful laws with more rulemaking. Practical considerations concern whether any notary should be permitted to e-notarize, or whether authorization should include separate qualifications, fees, and other requirements. They also include deciding on the requirements to create and store the relevant audio-video recording securely, since e-notarization may involve them.

The standards still require a personal appearance by the document signer, but that requirement has been redefined and expanded to include appearing via audio-video communication. The standards for remote electronic notarization require that notaries verify the document signer’s identity in multiple ways beyond the conventional state credential analysis to include one or more of “dynamic knowledge-based authentication assessment” (DKBA), “identity proofing,” and use of a valid public key certificate.

Because DKBA is a set of questions designed to be difficult for an imposter to answer, it provides a solid way to confirm identity. The questions pertain to the individual’s life history, circumstances, and credit information rather than something more easily found in public records, such as a mother’s maiden name. For example: “What make of car did you own in 1997?”

Identity proofing verifies identity through a government entity or third party.

Public key certificates are a harder to duplicate electronic means of identifying the individual associated with an electronic signature. Because of that, they help authenticate that the certificate subject is the intended signer. A public key certificate is issued to a person based upon a coupling with a private key that is securely created by the intended signer. The private key information is used for signing while the public key is used to validate the private key.

The standards also provide many security features, including:

  1. Only proper parties have access to the live audio-video sessions.
  2. They prevent unauthorized access to the stored video, documents, and credential verification data.
  3. The storage method for notarized documents and notary seals is tamper-evident.

One issue is whether storing the notary’s seal in electronic form is a potential violation of some states’ requirements that the seal be securely stored and whether it violates the NASS standard’s requirement that the seal be under the notary public’s sole control.

Another issue that has not been sufficiently discussed is the means by which a recorder may identify a printed document that was electronically notarized as an “original” for purposes of recording in states where an original is required. The filer’s certification via electronic recording can overcome this issue, but when electronic recording isn’t available, the issue needs to be addressed.

Pennsylvania and Indiana currently have pending legislation regarding e-notarization (SB 595 and SB 372, respectively), Ohio has proposed legislation, and Kentucky is likely to re-introduce legislation despite HB 218’s failure. Guidance from their respective secretaries of state will be necessary to clear up lingering issues that remain.