Remote Online Notarization may be Causing More Problems than It's Solving
Should states legalize remote online notarization with today’s ongoing issues surrounding data preservation, enforceability, liability, evidentiary access, and reliability and in doing so, potentially threaten the integrity of a key anti-fraud mechanism in our legal system?
Documents notarized traditionally have robust evidentiary value. Rather than providing similar assurances of evidentiary reliability for online notarization, this technology leaves serious issues of long-term data retention, liability, security, evidentiary reliability and accessibility, and data privacy unaddressed. Ultimately, without tackling these crucial issues, remote online notarization may be endangering the integrity of document authentication and retention practices by prioritizing short-term convenience over proven in-person fraud prevention.
The purpose of the notarial system is not efficiency. Its purpose is to help ensure the validity of signatures used to document certain vital, life-altering transactions and events, such as real estate transactions, the granting of powers of attorney, and the creation of advance health care directives. These events and transactions occur in most people’s lives at least once. And lawsuits challenging the legality of these transactions and events regularly turn to proof that a signature was, or was not, validly notarized. To make significant changes in today’s notary laws will have significant implications for our civil justice system, and should be undertaken with caution and the utmost care. The fundamental premise is that states should act cautiously in order to ensure and require that the evidentiary reliability of online notarization is at least equal to, if not better than, traditional in-person notarization.
What happens to notarized data if a notary platform were to go out of business without first securing or transferring data; if data were corrupted, or if data were lost? What happens if one of these companies goes out of business? Notarize, one of the leading platforms and supporter of RON, runs its remote online notary service on Amazon Web Services (AWS). AWS provides robust backup services and is a popular option for many leading Internet companies. But what would happen if Notarize ran out of money and was unable to pay its AWS bills? Would the records of the notarizations that it facilitated disappear for good? What would litigants do if they needed records of one of these notarizations? Likewise, what would happen if AWS were hacked and data were corrupted or stolen? And what if other online notary services use systems that are less robust and simply abandoned their businesses? Our present system relies on thousands of private notaries public to safeguard and maintain their journals. But a single lost notary journal imperils the records of, at most, a few hundred transactions. How many records could be lost if one of the platform companies failed? How many transactions could that imperil? Hundreds of thousands? Millions? This could be extremely detrimental and costly for consumers and businesses all over the globe.
Ultimately, states should consider whether the present notarial system is so broken that they cannot take adequate time to ensure that this technology implements an online system that is at least if not more robust and reliable as our current system for decades to come.