Notarizing Remotely!

QUESTION:    HOW CAN REMOTE ONLINE NOTARIZATION WORK?

ANSWER:      MANY STEPS ARE REQUIRED TO ASSURE THE ACCURACY AND INTEGRITY OF THE NOTARIZATION AND SIGNING PROCESSES.

How could remote online notarization go awry?

           During my career I have been able to prove at least two fraudulent notarizations when the rules required pen and paper signatures in the physical presence of notaries. I probably also dealt with a few fraudulent notarizations that I suspected, but could not prove. The most blatant fraud was the time the notary’s certificate expiration stamp indicated that the notary’s certification had expired prior to the purported date of the signature.

           Will electronic and remote online notarizations be more dependable? Look at the news about the frequency and diversity of cyber-fraud and cyber-crime! Why would remote online notarizations be exempt from such schemes?

Can we use remote online notarizations now in Arizona?

           Arizona Senate Bill 1030 authorizing Remote Online Notarizations would have taken effect July 1, 2020, but by Executive Order 2020-26, Governor Doug Ducey made the law effective April 10, 2020. Under the law, signers and notaries can “meet” using internet and audio/video technology. 

Digital details of remote online notarizations.

           Arizona notaries must apply to become electronic and/or remote online notaries. The application is available at the website https://azsos.gov/business/notary/enotary (so I am told). 

           Certain steps must be taken prior to the application by the notary. For example, the notary must be a current, active Arizona notary public. In addition, the applying notary must review the applicable administrative rules before applying and comply with those rules.

“Electronic notarizations” or “remote online notarizations”?

           Electronic notaries and remote online notaries are not exactly the same. There are separate rules for electronic notaries and remote online notaries. Electronic notarizations were legal in Arizona prior to 2020, but the new legislation and Executive Order have slightly altered some of the rules even for electronic notarizations.

 Remote online notarization rules.

           A remote online notarization takes place when a signer appears before the notary at the time of the notarization using audio/visual technology instead of being present in the same room as the notary. The notary must be physically present in the State of Arizona at the time of notarization. The notary must verify that the remotely located signer is authentic by either personal knowledge of the signer, the signer’s remote presentation of satisfactory identification evidence, credential analysis and identifying proofing, or by the use of a credible witness.

           The notary must securely maintain an audio and video recording and backup of the remote online notarization act. Additionally, the remote online notary must keep an electronic, rather than paper, journal of the remote online notarization acts performed.

           The statutes and regulations require the notary’s certificate and/or acknowledgements to state that the remote online notarization involved the use of communication technology. The form of the statement required from the notary varies depending upon the purposes of the signature and notarization. 

           For remote online notarizations, the notary must contract with a vendor capable of providing a remote online notarization. The Arizona Secretary of State’s website provides a sample list of current providers, which is not an exhaustive list. A notary may contract with any vendor that can satisfy the technology requirements set forth in the rules.

           The application by the notary to the Arizona Secretary of State’s office must provide a description of the technologies to be used and the application must provide the name and website of the vendor supplying the technologies to be used.

           Once the application is complete, it must be processed by the Secretary of State’s office before any remote online notarizations may begin. 

           Additional information can be found in Arizona Revised Statutes §§ 41-371 through 41-380. The Arizona administrative regulations implementing these statutes are R2-12-1201 et seq. and R2-12-1301 et seq.

Electronic notarization differentiated.

           Electronic notarization is defined as “a notarial act performed with respect to an electronic record in accordance with [the statute] while the signer is in the physical presence of the notary public.” R2-12-1201(5). The electronic record must be made using technology that would preserve evidence of tampering. The electronic record must also use a consistent unique electronic seal. The signature and notarization acts must be noted using a valid digital certificate, which must be obtained and renewed from a qualified certificate authority (in Arizona the Secretary of State). 

Are we there yet?

           One day soon, remote online notarizations may be readily available and secure. Stranger things have happened! If you have any questions about electronic transactions or electronic notarizations, please call me (because I don’t really trust the email).  

Michael R. King Gammage &Burnham, Attorneys at Law

[email protected] 602-256-4405

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