So, here I sit with a pretty awful sinus infection, cuddled up with my puppy in my recliner in the living room, with laptop on my lap and my apple cider vinegar next to me. Despite the fact that I feel awful, I can't stop thinking. There is a piece of proposed legislation that is being considered in the Louisiana House of Representatives and the Louisiana Senate right now. It could be voted on as early as Monday. And it's burning a hole in the notary part of my brain right now. So, being that I am a Louisiana notary, I am a successful notary exam prep educator, and... I am BatMandy, I have to voice my opinion about this bill.
Here's what is going on, and the problems I see with this bill.
House Bill No. 572 By Representative Magee Senate Bill No 358 By Senator Luneau
Creation of the Electronic Notary
Both proposed bills aim to amend La. CC Art. 1833, and Title 35 of the Louisiana Revised Statutes, to provide for the implementation of electronic notary services.
First, these bills direct the Secretary of State to develop, adopt, and maintain standards and rules for the facilitation of electronic notarial acts. Once these tasks are accomplished, notaries can apply to be appointed and commissioned as electronic notaries public.
The qualifications to become an electronic notary are the same as the qualifications for the office of, “pen and paper notary,” although this proposed legislation allows the Secretary of State to impose additional qualification requirements for the electronic notary.
The Problem with the Creation of the Electronic Notary
This same type of bill is being pushed in all 50 states. So far, only FIVE of them have actually adopted electronic notary legislation. According to the Notary Law Institute, the other forty-five states are completely opposed to this type of legislation, due to problems to be further discussed below. Who is pushing it? Signing companies, mortgage companies, and banks. They are trying to institute "Robo-signings." This would cut into the average full-time notary in Louisiana, in that signing companies, mortgage companies and banks would set this up in their institutions, and would not hire Notary Signing Agents anymore for their transactions. Notary signings encompass about 60% of my notary income. Therefore, 60% of my income would be lost to some faceless notary behind a computer, authenticating these acts remotely.
Additionally, people just needing a general signature witness (about 30% of my notary income) would be enticed to just go to the bank and have their signature authenticated, probably for less than I would charge to drive to meet them to witness their signature.
Performance of Duties
Under this proposed legislation, the electronic notary may draft and execute all types of notarial acts, including authentic acts. The electronic notary will be required to keep meticulous records, including identity verification, along with audio and video files that memorialize the signing. The bills require that these records be kept, secured, and backed up for a period of five years after the date of the transaction.
Not only will the files need to be secured, but all equipment involved in the electronic notary’s business will need to be secured as well.
Problem with the Performance of Duties
Really? Electronic notaries would execute authentic acts? Under CC Art. 1833, the procedure for an authentic act is to have the party/ies sign, in the presence of two witnesses, and a notary, and then those witnesses sign in the presence of the party/ies, and then the notary signs in front of all those people. What is the purpose? To have the act memorialized in a manner that is irrefutable, prima facie evidence, and that is self-proving.
In one case in particular, the witness was standing in the doorway of an office, watching the parties sign. The judge asked if she had seen the parties sign. She confirmed that she had seen them sign. The judge then asked how she knew they signed. The witness replied, "because I saw their hands moving on the paper." The judge went further, asking if she could really see what they were writing from ten feet away, and how she knew they didn't sign, "Mickey Mouse," or some other name. The witness replied that she could not see perfectly from ten feet away, and could not confirm that the parties did not sign someone else's name to the act.
If the parties, witnesses, and notary are all situated in different place, executing the act over the internet, how is everyone to attest to exactly what happened?
Electronic Notarial Act Procedures
The authentication of notarial acts via electronic means is stipulated to cross state lines. Therefore, neither the party nor the notary need to be physically located in Louisiana at the time of the signing. The notary will be required to verify the identity of the signer.
If the act is being notarized over the internet, audio and video recordings must be made, using equipment that is approved under these proposed laws. Additionally, the equipment and connections must be secured.
Problems with Electronic Notarial Act Procedures
Again, as stated above, if the camera is not positioned perfectly, how is a witness or notary supposed to validly attest to the signing and the circumstances surrounding same?
Furthermore, the equipment required to perform this type of authentication would be costly and expensive. Saving every single .mpeg file for 5 years will require a lot of storage. The security measures that would need to be taken would also be extremely expensive. The secured internet connection, the video cameras, the microphones, etc., would all be so costly that the only people able to afford this equipment would be banks or possibly public tag agencies. I know for a fact, that as an independent notary, I certainly would not be able to afford this equipment.
Termination of Commission
When the commission of an electronic notary ends, all equipment and software allowing the notary to affix their seal must be completely destroyed.
Problem with Termination of Commission
Simply put, what goes on the internet, stays on the internet. Is there really, truly any certain way to destroy your electronic seal?
Regardless of whether the parties are appearing personally and using pen and paper for the medium, whether the parties and notary are situated in front of a computer, or whether the authentication is completed over the internet, any writing executed by electronic means before an electronic notary public will be considered an authentic act under this proposed law.
The Problem with Authentic Acts
This portion of the bill, amending La. CC Art. 1833, totally undermines the very definition of the term, "Authentic Act."
But the real issue, and the primary reason forty-five other states have shot this type of legislation down previously, is that it opens up the notary, the parties, and the witnesses to prosecution due to fraud. Internet fraud, particularly identity theft, is a major issue in this day and age. Seriously, who hasn't received an email from some long-lost cousin in Nigeria asking them to wire money now so they can fly their grandfather to America to get extremely necessary medical treatment? It is becoming easier and easier to commit fraud over the internet. My identity has been stolen multiple times - as secure as I think my internet connection is, every once in a while, I get hacked. When it happens, I take more and more measures to protect myself, and then I'm good for a couple or three years. But with it being so easy to hack into someone's connection, and with it being so easy to commit internet fraud crimes, this legislation would open the electronic notary up to lawsuits surrounding the validation of identification and the circumstances surrounding the signing. I don't know about you, but if this passes, I don't think my $100,000 E&O policy will be enough to cover me for this kind of lawsuit.
PLEASE PLEASE PLEASE call your senators and representatives, as well as the senators and representatives who wrote this bill on Friday, March 23, 2018. This is possibly the last day we have to voice our opinions!!! This bill could be extremely detrimental to the Civil Law Notary Public, who is held to a much higher standard than the common law notaries in other states. We in Louisiana are unique and special! Help us keep it that way!