Implementing “Web-Cam Notarizations”
Back in June, 2012, the Constructive Notice Newsletter alerted readers to the then-upcoming implementation of “web-cam notarizations” in Virginia. Earlier this week, The Secretary of the Commonwealth unveiled The Virginia Electronic Notarization Standard.
According to the opening statement of “Scope and Intent,” “the goal of this Virginia Standard is to achieve recognition of Virginia electronic notary signatures and seals as well as electronic notarization systems that would facilitate acceptance of Virginia electronic notarial acts worldwide.” The document sets out in detail how the Virginia Standard reflects the standards established by the National Association of Secretaries of State, relies on “best practices” that appear on other States’ e-notarization statutes, and is consistent with the Federal E-SIGN act, the Uniform Electronic Transactions Act, and the Uniform Real Property Electronic Recording Act. Most of The Standard addresses issues such as the form and security of the Electronic Notary Seal and Signature, access to the Notary’s records, reliance on digital means for the authentication of the notarization, etc. An interesting wrinkle in this aspect of The Standard is that “The Secretary of the Commonwealth will not render an opinion or determination as to whether a particular electronic notarization system or technology used by a notary is in compliance with this Standard or the Code of Virginia. Responsibility for compliance is solely on the electronic notary” (Article 1.1(c)).
When it comes to “web cams,” The Standard requires that “The electronic notary shall take reasonable steps to ensure that the use of two-way live video and audio communication is secure from interception through unlawful means” (Article 3.4). As far as proving the identity of one who is “signing” from a remote location is concerned, The Standard isn’t very helpful. Pursuant to Article 3.2, when a remote signer is proving his or her identity using a “digital certificate or PIV [Personal Identity Verification] card,” the “electronic notarization system must ensure for the electronic notary” that the certificate or card has not expired or been revoked. Similarly, Article 3.3 provides that “antecedent proofing” of identity may only be done using a “process that conforms to the guidelines of the Federal Bridge Certification Authority.” This latter requirement is much more stringent than the official Virginia Notary Public Handbook, which states only that antecedent proofing “relies upon a prior trust relationship having been created between the signer and a third party [such as an employer, law firm or bank].”
Clearly, the Commonwealth of Virginia is trying to establish itself as the leader in implementing this emerging technology. But the tenor of the language used in the Virginia Standard, along with anecdotal evidence floating around the internet indicate that the path to implementation has been bumpy. It seems like the criteria for establishing identity used in “web-cam notarizations” have been tightened. (How many people do you know who have their own authenticated digital certificates or PIV cards or can organize a web cam transmission that conforms to FBCA requirements?) Perhaps “web-cam notarizations” will be limited to federal employees (to whom PIV cards are already issued) and Silicon Valley types who can comprehend and adhere to the security requirements.