One thing unchanged by the COVID-19 pandemic is California’s hesitancy to join the now nearly two-thirds of U.S. states authorizing some form of remote online notarization, or “RON,” whereby notaries and document-signers can communicate online using audiovisual technology rather than meet face-to-face.
California’s latest attempt to authorize RON—the “California Notary Protection Act,” or AB 1093—is stuck in the Legislature, suggesting that for at least another year, California notaries must continue to perform their duties in signers’ physical presence.
Socially Distant Notaries in 2020
As CEB reported last year, California lawmakers proposed, but never enacted, emergency COVID-19 notary legislation that would have permitted notaries public to register with California’s Secretary of State (SOS) to be a remote online notary public, at least for the duration of California’s declared state of emergency. The bill languished and eventually died, and California’s failure to adopt emergency RON measures amid COVID-19 made it just one of two states to do so (the other being South Carolina).
Also last year, the SOS, which regulates California’s 163,000+ notaries public, stopped short of declaring notaries “essential” amid the stay-at-home orders. But it nonetheless OK’d their ability to serve customers “from a safe distance,” and subject to CDC and other local guidelines.
Consequently, many California notaries went mobile in 2020 and onward, resorting to creatively distanced meetups like rendezvousing in parking lots and exchanging documents through car windows. Industry groups further issued specific safety guidelines, such as for thumbprints.
In addition to these mobile meetups, California also recognizes notary acknowledgments performed out of state, so long as they satisfy the legal requirements of the place where the acknowledgment is made. (See Civ. Code, §§ 1182, 1189(b).) Thus, Californians during the pandemic have had the option of obtaining out-of-state RONs—especially given that the majority of states now authorize RON.
California in the Minority as a Non-RON State
Many states in recent years, and perhaps spurred this past year in response to the COVID-19 pandemic, have permanently adopted some form of RON. The current count is 33 states as of April 2021 (although some authorizations have not yet fully taken effect), with Kansas being the most recent. Congress has also mulled minimum federal standards for electronic and remote notarizations affecting interstate commerce, via the Securing and Enabling Commerce Using Remote and Electronic Notarization Act (the “SECURE Notarization Act”), but its fate under the Biden administration is unclear.
California has a reputation for being ahead of the legislative curve on many issues (employment law, workplace safety, cannabis, etc.), but its delay in adapting to digital by allowing RONs is perhaps a notable outlier.
Bill Anderson, Vice President of Government Affairs for the National Notary Association (NNA), attributes the holdup in large part to California’s consumer protectionist stance and concerns over privacy, among other issues.
“I think it’s telling that so far New York, California, and Illinois haven’t done it [adopting RON],” he says, noting that these states are typically the most “protectionist of consumers.”
Anderson explains that while NNA doesn’t explicitly lobby, it did support AB 199 in the last session because it generally favors efforts that do not “limit” its notaries.
“California Notary Protection Act,” or AB 1093
As currently written, AB 1093, which was introduced by Assemblymember Reggie Jones-Sawyer in February, would bolster the California Government Code sections addressing notaries public (commencing with section 8200) and would authorize notaries to apply for registration with the SOS to become RONs (i.e., no longer requiring signers’ physical presence in the same room). The bill also authorizes the SOS to adopt further rules necessary to implement these provisions.
The bill observes that Californians are now able to use RONs from other states, thus “leaving California-based notaries at a disadvantage” (hence the bill’s title).
In April 2021, a committee hearing on AB 1093 was delayed over certain language concerns, meaning that the bill may not be considered by the full legislature until next year. The bill has been re-referred to the Committee on the Judiciary. (Assemblymember Jones-Sawyer’s office did not respond in time to provide comment for this article.)
Privacy and Other Concerns
The speed with which other states have adopted RON might suggest simplicity, but there are several factors to weigh in crafting RON legislation, including:
- how notaries shall identify signers (which may include credential analysis and/or knowledge-based identification);
- which types of documents may be notarized via RON;
- specific audio-visual requirements, including security, recording, and retention period requirements; and
- whether RON should be a separate commission from non-RON notaries.
(As one example of these complexities, last year Missouri considered RON as part of comprehensive notary reform and RON bills, totaling about 80 pages long, Anderson recalls.)
Privacy is of particular concern in California given RON’s audio-visual recording requirement. Currently, California notaries must log their notarial acts in sequential order in a journal, which “shall be kept in a locked and secured area, under the direct and exclusive control of the notary” (Govt. Code, § 8206). The NNA’s Anderson observes that if a notary follows this law, the risk of journal theft is low, and even if a journal were stolen, the loss would likely only affect a few people.
“But if you have millions and millions [of notarial entries] stored online, and they [a thief or hacker] can get into a RON system, the damage can be substantively greater,” Anderson said. However, he notes that most RON providers will claim to have “Fort-Knox-type cryptography.”
A related concern is what happens if or when a RON electronic storage provider goes out of business. How would those records then be retrieved? Other states have grappled with whether to allow notary storage providers to sell customers’ information.
In California, opponents of AB 1093 who have gone on record (including at a recent Zoom hearing) include the California League of Independent Notaries. Bill supporters include the California Land Title Association.
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