[lesterbuck]

I was disturbed to see that pg killed an earlier thread on this company, on a rather flimsy basis. The financial industry is obviously ripe for disruption, but if those being disrupted can kick up enough dust to have HN erase all memory of a new idea, we have a bigger problem.

[tzs]

It was not a flimsy basis. The site was specifically claiming online notarization was legal in all states, if I recall correctly[1].

It is NOT legal in California.

They now appear to have modified their claims. As far as I can see, they only say online signing is legal, not online notarization.

[1] The Internet Archive has not crawled them since 2009, when the domain appears to have been used for something completely different, so I can't check to be sure exactly what they said and what has changed.

[aisalwaysa]

You're not understanding the facts, online notarization IS legal in California... the notaries themselves can't be in California, but the signers can.

Signers can notarize from anywhere in the world, including California, since the notaries follow Virginia law. It's like how lenders and credit companies often use Utah law (but can lend elsewhere) or corporations incorporate in Delaware.

[tzs]

The California Secretary of State says: "California law requires a person to appear personally before a notary public to obtain notarial acts like acknowledgments or jurats".

[aisalwaysa]

Yes, if you are a CALIFORNIA NOTARY than you must follow their requirements. NOT if you are a Virginia Notary, then you follow Virginia Law, and your clients, wherever they are in the world, adhere to your Virginia requirements.

[tzs]

There have been many cases of state courts rejecting out of state notarizations that did not comply with the requirements of the state in which the court sits.

There was a bill a few years ago in Congress that tried to make it so that states would have to honor out of state notarizations, but this bill was vetoed. Until such a bill is signed into law, or either the 9th Circuit or the Supreme Court rules that states must accept out of state notarizations that do not meet the in-state notary requirements, then any notarization in which you are not present is questionable in California.

[rprasad]

No, online notarization is not legal anywhere in the world, except Virgnia.

This is not at all similar to how lenders can use Utah law but incorporate in Delaware. Choice of legal forum is a contractual issue between private parties.

Notorization is a legal issue involving the government. Notaries act as government agents when they notarize, so each legal jurisdiction gets to set the standards for legal notarization within their jurisdiction. States are not required to honor notarizations performed in another state under the Full Faith and Credit Clause because notarization is not considered a "public act" but most states will accept notarizations from other states if the standards in the other state are the same or stricter than the first state.

Hence, while signers can notarize from anywhere in the world using SignNow, they can't use this notarization for anything except for transactions governed by Virginia law and subject to the jurisdiction of Virginia courts. This makes the service effectively useless for anyone who does not live in Virginia, since other state courts do not have to accept the notarization.

[guan]

At the very least, the question of whether out-of-state notarization must be accepted is disputed. Here’s a document on the FTC website by the National Notary Assocation, which states that “[b]ecause of the Full Faith and Credit clause of the U.S. Constitution, notarial acts performed by a Notary in one state have the same force and effect as if performed by a Notary in the respective state.”

http://www.ftc.gov/os/comments/factaidt/FBI%20Evid%20Memo1.p...

I couldn’t find any federal or other court decisions that state that a notarial act is not considered a “public act” under the Full Faith and Credit clause. Can you provide a citation?

Here’s testimony before a House of Representatives committee which states that out-of-state notarizations are often rejected, but usually for formalistic and not substantive reasons:

http://commdocs.house.gov/committees/judiciary/hju26412.000/...

[rprasad]

It's tricky. A notarial act is not a "public act" under the Full Faith and Credit clause because Congress has not defined it as a public act for purposes of the Clause, nor has it set forth rules for proving the public act. (A public act for Constitutional purposes generally means an official act performed by an elected or appointed official, but this definition is expanded by statute to include actions performed by other persons acting in the capacity of the state.) Nonetheless, despite Congressional authorization, it is generally treated as a public act by most state and federal rules of evidence.

States still can and do reject out-of-state notarizations if it fails to satisfy procedural requirements for notarization in that state. Notarization is a formal process--it has very little actual substance--so this effectively swallows up the impact of the Full Faith and Credit Clause.

[mchusma]

The National Association of Secretaries of State disagree with you, including in the following public report "Issues and Trends in State Notary Regulation: NASS Report on State Notarization Policies and Practice" found here: http://www.nass.org/index.php?option=com_content&view=ar...

Key Quotes Regarding electronic notarization: “New state and federal laws, such as the 2000 Electronic Signatures in Global and National Commerce Act (E-SIGN), authorize every state-commissioned notary in the nation to use electronic signatures in performing official acts.”

Regarding Out Of State Acceptance “State laws...already recognize the validity of out-of-state notarizations, the state and federal evidence rules that recognize notarial acts as self-authenticating, and the Full Faith and Credit Clause of the U.S. Constitution.”

States would have to pass legislation against online notarization to prevent its acceptance.

Several states have put out warnings, including the state of California. This notice was published prior to the legal change and has apparently not been reviewed by state counsel. We have received clarification, consistent with all communication from other states, that they are only concerned with online notarization conducted by their notaries.

[tzs]

> The National Association of Secretaries of State disagree with you, including in the following public report "Issues and Trends in State Notary Regulation: NASS Report on State Notarization Policies and Practice" found here: http://www.nass.org/index.php?option=com_content&view=ar....

> Key Quotes Regarding electronic notarization: “New state and federal laws, such as the 2000 Electronic Signatures in Global and National Commerce Act (E-SIGN), authorize every state-commissioned notary in the nation to use electronic signatures in performing official acts.”

You are misunderstanding the issue California and other states have with electronic notarization. As the document you cite notes, but you appear to have overlooked:

   As previously mentioned, all states require that an individual seeking
   to have a document electronically notarized appear in person before the
   notary at the time of notarization. Colorado’s law specifically emphasizes
   that electronic notarization is not remote notarization–the signer must
   appear in the presence of the notary and swear, affirm, or acknowledge
   the electronic document being notarized.

The laws that have made electronic signatures valid in many contexts, including notarization, just deal with using electronic signatures to replace paper signatures and other physical records. For instance, again from the document you cited:

   Therefore, UETA permits a notary public and other authorized officers
   to act electronically, effectively removing the stamp/seal requirements.
   However, it does not eliminate any of the other requirements of notarial
   laws. The process of notarization remains the same under UETA. Only the
   technology used to make a signature is different.

More:

   Under the NASS electronic notarization standards, RULONA, and the most
   recent version of the Model Notary Act, an electronic notarization must
   meet the same basic standards as a paper-based notarization. The traditional
   components remain present, including the notary certificate, the notary
   signature and the notary seal information. In most states, the signer must
   still appear before the notary public face to face in the same room.
   Requiring personal appearance allows a notary to interact with and affirm
   the identity of the signer, ensuring that he or she is authorized to sign
   and is not doing so under duress.

[rprasad]

The National Tobacco Association claims that cigarretes aren't cancerous. The secretaries of state license notaries, so this is no different than an interested trade group pushing the economic interests of its members.

Despite the NASS stance on out-of-state notarization, the states themselves, and the courts, actually get to decide whether an out-of-state notarization can be used in the jurisdiction. Many routinely reject out-of-state notarizations which fail to satisfy the standards for notarizations within that state. (Federal courts are different--they will accept notarizations if the notarization would be valid under the laws of the forum state.)

[mchusma]

Comparing the Association of Secretaries of State to the Tobacco lobby is misleading. The Secretaries of State represent the state, and their opinion that out-of-state notarizations are valid everywhere means the regulators are saying they think this is true. In other words, in your tobacco analogy, Secretaries of State are closer to the FDA than the Tobacco Association.

[lesterbuck]

The exact legal details of is so/is not is hardly to be decided on Hacker News. I am disturbed that one side gets its opinion heard and -- poof! -- down the memory hole that topic goes. It's really just a small version of SOPA in our community. PayPal, when it launched, was illegal in all fifty states. Would Hacker News have suppressed discussions of PayPal's business model?

[mchusma]

Good point. Virginia certainly seems to think that it is legal for notaries to notarize across state lines. Perhaps CA disagrees, but they have never really stated as such.

[mchusma]

You are not recalling correctly, never stated it was legal for notaries in all states.