The Evolution of eNotarization in the
Marc L. Aronson
United States and Pennsylvania Notary Associations
• When did the U.S. courts first consider
• 1869 (Howley v. Whipple)
• “It makes no difference whether…his [the notary] pen be a
copper wire a thousand miles long…nor does it make any
difference…[if] a more subtle fluid, known as electricity,
performs the same office.”
• What constitutes a signature?
• What is a “writing” with due
consideration to the Statute of Frauds?
• What constitutes acceptance of a
• What constitutes “notice”?
• Among other issues…
• Utah passed the Utah Digital Signature Act
[U.C. §§46-3-11 to 46-3-104] in 1995
• Act defined digital signatures,
public/private keys and certificate
• Set regulations for digital certificates and
certificate authorities (issuers of digital
• Uniform Electronic Transactions Act
• Adopted by NCCUSL in 1999
• Passed in 46 states, D.C. and the Virgin Islands
• Exceptions : IL, NY, GA, WA
• Says if notarization is required, the requirement is
satisfied if electronic signature along with
information required to be included by other
applicable law, is attached to or logically
associated with the signature or record.
• This is an ‘overlay’ law
• Electronic Signatures in Global and National
• Federal act passed in 2000
• Also an ‘overlay’ law
• A signature is a sound, symbol or process
• National Conference of Commissioners on
Uniform State Laws (NCCUSL)
• American Land Title Association (ALTA)
• Mortgage Bankers Association (MBA)
• Mortgage Industry Service Maintenance
• Secure Identity Services Accreditation
• National Electronic Commerce Coordinating Council
• Standards and Procedures for Electronic Records and
• Organization for the Advancement of Structured
Information Standards (OASIS)
• Property Records Industry Association (PRIA)
• ABA’s eTrust Subcommittee-- eNotary Work Group
• ABA’s eTrust Subcommittee-- eNotary
» Signature and Seals
» Authenticity of Notarial Acts
» Laws and Regulations
» Technology and Security
» Passed eNotarization law in 2001. Passed rules and
regulations in June 2003
» Passed eNotary bill [H.B. 1300]
» Passed rules six months later
» Permits electronic notarization under UETA; has not
passed or adopted any additional laws or regulations
» Passed UETA in 1999, Passed eNotary bill in 2002. First
eNotarization November 13, 2006
» Title 1, Part 10 Department of Information Resources
» Chapter 203, Management of Electronic Transactions and
Traditional Notarial Roles …
• Identity verification (not validation)
• Observation of willingness and awareness
• Ensuring absence of duress
• Taking acknowledgments; administering oaths and
affirmations; certifying copies
An electronic document ...
• Could be a paper document scanned into an
• Could be a document originally created on a
» Microsoft Word documents
» HTML (web pages)
» E-mail messages
An electronic signature …
• A sound, symbol or process used to imply
» Text-based: a typed name at the bottom of
an E-mail message
» Digitized: an image of a handwritten
signature attached to a document
» Digital: a series of characters used in
conjunction with a digital certificate
» Not Internet based
» Multi-step process
• World Wide Notary/DigaSign
» Internet based
» Wizards to lead you through the process
» Auto creation of electronic journal entry
» Internet based
» PKI free
• Hippocrates’ Rule
» First, Do No Harm
• Follow E-SIGN/UETA spirit
• Preserve sanctity of contract law
• Permit private-public partnerships to set rules
• Most interested in transactional/document
• Don’t burden emergence of eTransactions
Excessive regulation …
• Often involves a level of prescription not seen
for ink/paper transactions
• Erodes E-SIGN & UETA uniformity and
• Creates legal uncertainty, which in turn leads to
transactional friction & inefficiencies and higher
• Ultimately impedes adoption
Concerns for the Notary?
• Notaries authenticate identities, NOT documents
• No physical seals needed
• Responsibility for the integrity of the transaction
» Notary law
» Notary bond
» Errors and Omissions Insurance
• Responsibility for the integrity of the document
• A notary is a notary is a notary!
» The Participants in the transaction?
» The Notary?
» The Notary’s technology vendor?
» The Certification Authority?
» The Registration Authority?
» The Recorder?
» The Recorder’s technology vendor?
» Title companies an closing attorneys?
» Who else?
» What will the court(s) say?
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