Digital signatures, facial ID, thumbprints, crypto-keys, and two-factor identification are all methods of verifying identity. It sometimes seems that an ink signature, in the 21st century, is something quaint and nostalgic. Perhaps we’ll reach a point when we’ve moved beyond written verifications. Florida is the latest state to adopt an electronic notary statute. Will it improve the pace and authenticity of transactions?
We encounter the need for notaries constantly in today’s age. Documents relating to estate planning, real property transactions, permitting, and titling all commonly require the signature and seal of a notary. One function of a notary is to simply prevent fraud; the notary states that a signature on a document is signed by the person who purports to have signed it. Notarization often requires the expense of time since we have to physically appear before a notary to have him or her sign and stamp the documents.
Beginning on January 1, 2020, Remote Online Notarization (RON) will be legal in the State of Florida. The Bill allows for the notarization of documents to occur electronically. Sounds great, yet there are several layers to peel back before we can predict whether this makes things simpler or more complicated; practical or theoretical; secure or uncertain.
What Does the Bill Really Say?
The Bill allows notaries to affix their signature and seal to documents that are signed out of their presence if they witness a client’s signature via live, two-way audio-video communication technology. The Bill defines audio-video communication technology as technology in compliance with applicable law which enables real-time, two-way communication using electronic means in which participants are able to see, hear, and communicate with one another. It seems like the requirement for audio-video communication technology can easily be satisfied by applications like FaceTime and Skype. All that’s demanded of the client is to learn to use the applications and have the relevant documents ready. But, matters get more complicated for the notary before this type of communication can occur.
Currently, to become a notary, you have to take a free course online provided by the Florida Department of State, complete and mail in the Florida Notary application, and purchase a four-year $7,500 Florida Notary bond. The new Bill requires the notary to complete an additional online notary course, provide a $25,000 bond, keep an electronic journal of all online notarizations, and to work with a RON services provider to screen clients for credential analysis and identity proofing. For many notaries, the black and white version of online notary opens doors and streamlines work, allowing online notaries to differentiate themselves in the market. Additionally, for attorneys who work with clients outside of Florida, the Bill makes a big difference as it can be time-consuming and expensive to meet with them in person.
Many supporters of the Bill state that it brings Florida “into the year 2019” regarding the law of signing documents. Despite the credential analysis and identity proofing software required by the Bill, there are critics who still worry about fraud, coercion and undue influence. Traditional notarization allows for that unique face-to-face interaction between the notary and client, in which the signing is limited to what goes on in that room. Naturally, we still face contests in light of the traditional notarization process. RON widens the gap for potential off-camera coercion and ways to game the system. With that comes the potential for floods of litigation brought in Florida by out-of-staters and internationals. Let’s not forget that Florida (unfortunately) is one of the country’s leaders in reported cases of identity theft and fraud. With the Florida courts already as loaded as they are, who would want to see more lawsuits here?
What We Think at Yolofsky Law
We agree that RON provides the benefits of a streamlined and convenient notarization process. However, we feel it is best not to be a first mover into this new age of notary. A back-seat approach might be the better route, from which we can analyze the implementation and results of RON after the new year. On its face: RON sounds simple because it can be accomplished with applications like FaceTime and Skype; RON seems practical because it allows for notaries to serve clients at a greater reach; and RON is secure due to the credential analysis and identity proofing services. At the same time, until strong controls and minimum standards are implemented, it seems better to stick with the tried-and-true, in-person, notary, who has their stamp and pen ready to help.