The Basic Legal Structures Behind E-Notarization

Increasingly, states are making laws to regulate e-commerce and e-notarization, and this has made it necessary for notaries to have a better grasp of the basics of e-notarization. Whether you are interested in performing e-notarization or not, you can benefit from having a fair understanding of its basic legal structures. Here are some basic terminologies that should normally be familiar to any notary:

UETA ( or Uniform Electronics Transactions Act)

This act was enacted in 1999, and it aims at removing barriers to e-commerce by ensuring that electronic signatures and transactions have the same legal implications as those that are done on paper. The act has been adopted by nearly all the states, even though some of them have made some revisions.

The act empowers notaries and signers of documents to use any electronic symbol, sound or procedure that they plan to make their legal signature when signing documents. The act does not address explicitly the question of a notarial seal, but the importance of a notarial seal remains unchanged. On this, the act requires that the information on the seal must be attached to the electronic signature(or e-signature) or record. This essentially means that a notary can simply type the information on their certificate (which includes seal information and signature) onto the particular e-document (or electronic document) that is being notarized

Nonetheless, it is unclear how these e-notarization procedures can comply with the current statutory notarization requirements. This will need to be clarified further to notaries depending on their state.

E-SIGN

E-SIGN was passed by the US congress in 2000.It was meant to eliminate barriers to e-commerce financial transactions across states and countries. Just like UETA, the act meant that paper transactions and properly processed electronic transactions can have equivalent status and implications in the eyes of the law. The act also held that notarization and acknowledgment requirements for an e-document will be met once the e-signature of the notary and other requisite information (like seal information and notary certificate) are logically associated or attached to the record or signature. Being a federal law, it is mandatory for all states, unlike UETA which is voluntary.

Under E-SIGN, just as in UETA, the e-notarization process must also conform to the existing legal procedures that govern the paper-based process. The evolution of the e-notarization legal structures has given rise to other related issues-for instance, methods of ensuring security when transmitting e-notarized documents, authenticating the e-signature of the signer (notary) and securing the document against tampering after the e-notarization process is complete.

URPERA(or Uniform real property electronics recording Act)

This act was enacted in 2004, and its adoption is voluntary among the states. Currently, only a handful of them has actually adopted it. The act gave further clarification on the issue of the authority held by recording officials when receiving, recording and retrieving electronic land information and records.

NASS Standards

These are e-notarization standards that were formulated and approved in 2006.The key point about these standards is that they go beyond E-SIGN and UETA when defining a notary’s e-signature. They require that it must be unique, amenable to independent authentication, must be under the sole control of the notary and it should be attached to an e-document in such a way that any alterations to the e-document are detectable.

In essence, these standards aim at addressing security and reliability issues surrounding the e-notarization process. The standards promote the usage of e-signatures that use more complex technology than what was envisaged under E-SIGN or UETA.

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