Wednesday, November 16, 2016

New Notary Law and Electronic Documents

Earlier this month, I wrote about the new Massachusetts law on notaries public (Chapter 289 of the Acts of 2016). The law covers many things but is silent on electronic acknowledgements which I believe is an unfortunate oversight rather than an indirect rejection of the concept.

Electronic recording has been embraced by our users. Fifty percent of all documents and sixty-five percent of all mortgages at this registry are recorded that way. The march towards electronic recording will inevitably lead to electronic documents and electronic signatures, both of which were legalized back in 2007 by the Massachusetts Uniform Electronic Transactions Act (MGL ch. 110G).

An impediment to electronic documents (as opposed to paper documents that are then scanned) is the silence on our notary public rules on electronic acknowledgements. There's no point to having a client sign a document that only exists as an image on a glass screen if the notary public must affix an inked stamp to it.

The solution to this problem can be a very simple one. Just permit the notary to sign the document electronically and require the notary's name, office, jurisdiction of appointment, and expiration date of commission to also appear. The only thing that can't be done electronically is to put all that information in the form of a stamp that also includes the seal of the Commonwealth.

Much that has been written about electronic notaries dives deeply into complex technologies that would, among other things, render the acknowledged document tamper-proof and unalterable. While such a feature would be desirable, it is not essential to fulfilling the core function of a notary in taking an acknowledgement, which is to certify that the person signing the document is indeed the person he purports to be. All of the aspects now part of the notarial act - having the person signing the document appear in person before the notary, having that person identify him or herself with a drivers license or other reliable form of identification, can easily be carried over to the type of electronic notarization contemplated here.

No comments: