The SECURE Notarization Act Will Create a Race to the Bottom for Privacy

guest · Sep 3, 2022

By India McKinney @imck82 - August 31, 2022

Earlier this week, EFF, the Center for Democracy and Technology, and Demand Progress sent a letter to the Senate expressing our concerns about H.R. 3962, The Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2021 or SECURE Notarization Act. This bill would require states to recognize remote online notarizations that meet a weak minimum federal standard—regardless of whether those notarizations meet potentially stronger pre-existing state standards.

This bill fails to require strong minimum privacy standards while simultaneously requiring the collection and retention of personally identifying and necessarily sensitive information that notaries normally wouldn’t collect in the first place. And, crucially, the bill does not prohibit the sale or disclosure of the data collected during an online notarization.
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If passed as written, the SECURE Notarization Act would require states to recognize out-of-state notarizations that do not comply with potentially stronger state standards. This encourages a race to the bottom. States will have a clear incentive to establish the weakest possible standards in a bid to attract notary businesses to their state.

People need to use notaries for some of life’s most significant transactions, such as end-of-life planning and real estate purchases or sales. These transactions have long-lasting consequences for individuals and their families.
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As COVID-19 has forced millions of consumers and businesses to rethink digital security and identity safeguards, it is critical that Congress consider how to best maintain robust protections necessary to protect against abuse and fraud. Preempting state law is not the answer.
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H.R.3962 - Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2022

This bill allows a notary public commissioned under state law to remotely notarize electronic records and perform notarizations for remotely located individuals. The bill provides technical requirements for such notarizations, including the creation and retention of video and audio recordings and the use of communication technologies (i.e., video chat).

Additionally, the bill requires U.S. courts and states to recognize notarizations—including remote notarizations of electronic records and notarizations of remotely-located individuals—that occur in or affect interstate commerce and are performed by a notary public commissioned under the laws of other states.
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The bill also allows a notary public to remotely notarize electronic records involving an individual located outside of the United States, subject to certain requirements.
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The SECURE Notarization Act Will Create a Race to the Bottom for Privacy

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