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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Electronic Notarization in a Digital World

Should Minnesota follow other states on webcam notarization?

Like powdered wigs and law libraries filled with hardcover Westlaw treatises, the requirement of a notarized signature faces a slow demise in Minnesota courts. In 2014, Minnesota eliminated the need for most court documents to be notarized, provided the person signing the document declares immediately above the signature, “I declare under penalty of perjury that everything I have stated in this document is true and correct.”1 The document must contain the signature date, along with the county and state where the document was signed. This change was made to Minnesota law to further the transition to a fully electronic court filing system.

Certain documents continue to require notarization. For instance, a document requiring a signature under penalty of perjury, or an affidavit executed in Minnesota but filed in a court system, still require a notarized signature. Increasingly, when presented with an electronic document for notarization, the notary will utilize an electronic notary stamp and signature. The statutory framework for electronic signatures and electronic notaries was established through two significant pieces of legislation: the Uniform Electronic Transactions Act (UETA) and the Electronic Signatures in Global and National Commerce Act (E-Sign Act). In addition, Minnesota enacted legislation in 2006 expressly allowing electronic notarization pursuant to Minnesota Statutes 358 and 359.

Minnesota enacted the UETA, which removed restrictions to electronic commerce by creating equal legal status between electronic transactions and signatures and those documented in paper form.2 UETA, as enacted in Minnesota, defined an “electronic signature” as: “an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.”3 UETA also established that an electronic notarization will satisfy statutory requirements for the notary’s paper-and-ink signature: “If a law requires a signature or record to be notarized, acknowledged, verified, or made under oath, the requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable law, is attached to or logically associated with the signature or record.”4

The E-Sign Act, signed into law on June 30, 2000, removed barriers to electronic commerce for interstate and international financial transactions.5 The E-Sign Act allowed the use of electronic records to satisfy any statute, regulation, or rule of law requiring that such information be provided in writing. The law also established that the requirements for notarization and acknowledgment of an electronic document will be satisfied if the electronic signature of the notary, along with all other required information, are attached to or logically associated with the signature or record.6

The process for electronic notarization largely follows the traditional notarization process. The notary is responsible for verifying a person’s identity and following all existing notary rules, including being in the physical presence of the person signing the document.7 Even though the signer and the notary are both operating via a computer, they must be physically in the same space, face-to-face, at the time of the notarization. The person signing the document cannot be in Mankato if the notary is attesting the signature in Bemidji. (As discussed later in this article, the physical presence rule is evolving in some jurisdictions.)

Electronic notarization diverges from the traditional notarization process in that the document is notarized in digital form, and the notary signs with an electronic signature. The notary’s seal may be placed on the electronic do cument as a graphic image or by other available means. Minnesota’s notary law expressly lays out what is required of a notary’s stamp and specifically allows for electronic notary stamps.8 While electronic notarization is provided for under Minnesota law, a notary must register the capability to notarize electronically with the Minnesota secretary of state.9 To apply for e-notarization, notaries must be currently registered as an active Minnesota notary and have the capability to notarize electronically before requesting authorization to perform electronic notarizations.10

In 2006, the National Association of Secretaries of State (NASS) created e-notarization Standards to protect signature credibility, avoid identity fraud, and provide accountability to the public in order to promote secure electronic commerce.11 The NASS standards expanded on UETA’s and E-Sign’s definition of the notary’s electronic signature, by requiring that it is:

  • unique to the notary;
  • capable of independent authentication;
  • retained under the notary’s sole control;
  • attached to or logically associated with the electronic document; and
  • linked to the underlying electronic document in a manner that ensures any subsequent alterations to the document or electronic notarial certificate are detectable.12
Webcam notarization

Although Minnesota allows for electronic notaries, it is not on the cutting edge of notary law. In 2011, Virginia became the first state to allow the use of video and audio technology to perform electronic notarizations, commonly referred to as webcam notarization.13 A small handful of states have followed Virginia’s lead.14 Under a webcam notarization, the signer could be in Mankato, while the notary is sitting on Virginia Beach. Under Minnesota’s full faith and credit notary statute, a webcam notarization from Virginia is honored and enforceable in a Minnesota court.15 A cottage industry of webcam notaries has sprung up to provide notary services that are performed entirely over the internet.16 In 2017, legislation was introduced in Minnesota to enact the Uniform Law Commission’s updated Revised Uniform Law on Notarial Acts (RULONA) to allow webcam notarizations for individuals residing outside of the United States.17 The proposed legislation would not allow for webcam notarizations if the signor and notary are within the state of Minnesota.

When enacting its law to allow for webcam notaries, Virginia created The Virginia Electronic Notarization Assurance Standard.18 The Virginia standard referenced the NASS standards for verifying the authenticity of an electronic notarization. In addition, the Virginia standard emphasized the importance of allowing relying parties to verify the authenticity and validity of an electronic notary’s official electronic signature and seal.19

Allowing webcam notarization in Minnesota would be a significant change to the established way of doing business. However, as more states allow for webcam notarization, an increasing number of documents signed in Minnesota will be notarized by out-of-state notaries, beyond the enforcement powers of Minnesota authorities.


MICHAEL D. JOHNSON is the director of litigation with Lawgix Inc. Lawgix Inc. is a cloud-based web application that helps banks, financial institutions, and insurers deploy mass-litigation across their footprint using customizable workflows and a marketplace of select, experienced legal professionals.


Notes

1 Minn. Stat. 358.116

2 Minn. Stat. 325L. Uniform Electronic Transactions Act

3 Minn. Stat. 325L.02(h)

4 Minn. Stat. 325L.11 Notarization and Acknowledgment.

5 15 U.S. Code Chapter 96 – Electronic Signatures in Global and National Commerce

6 15 U.S.C. §7001(g)

7 http://www.sos.state.mn.us/media/1399/notary-brochure-2015.pdf

8 Minn. Stat. 359.03(2)(b)(4) “Notarial stamp may be affixed electronically. The information required by this section may be affixed electronically and shall be logically and securely affixed or associated with the electronic record being notarized.”

9 Minn. Stat. 359.01(5)

10 http://www.sos.state.mn.us/media/2000/e-notarization_-application.pdf

11 http://www.asnnotary.org/img/NASS%20Natl%20Standards%20on%20ENotarization%20July%202006.pdf

12 http://www.asnnotary.org/?form=enotary

13 https://www.nationalnotary.org/notary-bulletin/blog/2015/12/webcam-notarizations-legislative-trends-2016

14 http://www.notarylaw.com/Education.php

15 Minn. Stat. 358.44 Notarial Acts in Other Jurisdictions of the United States.

16 https://notarize.com/faq/

17 https://www.revisor.mn.gov/bills/bill.php?f=SF893&y=2017&ssn=0&b=senate

18 https://commonwealth.virginia.gov/media/2090/VAe-NotarizationStandard2013Version10.pdf

19 Virginia Code §47.1-16

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