OAKLAND – California Attorney General Rob Bonta today announced sending a letter to California Senators Dianne Feinstein and Alex Padilla expressing his strong concerns with the Securing and Enabling Commerce Using Remote and Electronic (SECURE) Notarization Act, which would preempt state notarization laws. In the letter, Attorney General Bonta argues that any federal legal framework for remote online notarization should allow flexibility for states to monitor and prevent data breaches, fraud, and other abuses. This is best achieved through federal legislation that embraces, rather than preempts, more robust and protective state notarization laws that states may have in place now or in the future.
“As remote online notarization gains popularity, California is working to safeguard consumer privacy and prevent fraud by enacting and enforcing robust notarization laws,” said Attorney General Bonta. “Congress should set a federal floor, not a ceiling, for consumer protections related to online notarization. As California Attorney General, I'm committed to protecting vulnerable Californians from fraud and other abuses. That will be made more difficult if California's notarization laws are preempted.”
The primary goal of notarization is to ensure the proper identity of those whose signatures are used to document life-changing transactions – for example, the creation of advance healthcare directives, the granting of powers of attorney, or real estate sales and purchases. The events that require notarization are rare occurrences in most people’s lives, and the consequences of a related fraud can be profound.
The rules regarding notarizations have long been governed by the states. California, for example, has an extensive body of state law governing notaries and notarial acts, including the registration, eligibility, and duties of notaries; the identity authentication process; the preservation of private California information related to the notarial act; and regulatory oversight by the California Secretary of State. Changes to state notarization law, including with respect to online notarization, are undertaken with a careful consideration of their long-term effects, particularly with respect to fraud and privacy issues.
By contrast, the SECURE Notarization Act is a blunt object that broadly preempts state notarization law in the emerging area of remote online notarization. If signed into law, the SECURE Notarization Act would require states to recognize remote online notarizations that meet certain minimum standards, with forced reciprocity that would inevitably result in a race to the bottom regarding consumer protections. The SECURE Notarization Act also lacks guidance relating to the preservation of electronic recordings and other sensitive personal information, which could be subject to data breaches or other misuse. This data – likely to be retained by notaries as a result of remote online notarizations – had not previously been collected during the traditional notarization process.
A copy of the letter is available here.