Making Online Notarization Legal

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.)

> 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.

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.

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.