by Jamie S. Blair, originally posted June 15, 2022
On March 20, 2020, then-governor of New York State Andrew Cuomo signed into law a temporary order allowing for the implementation of remote online notarization (RON) by all notaries public holding office within the state. The goal of this order was to help flatten the ongoing spread of COVID-19, a global pandemic that brought the economies of New York State – and indeed most of the world – to a near-sudden halt. By encouraging RON, the state’s lawmakers reasoned, fewer people would feel the need to venture away from their homes to seek out a notary, as there was a considerable effort made by governing bodies across the globe to keep people from interacting with each other except for strictly essential circumstances. The practice went hand in hand with having the global population maintain social distancing so as to curtail any potential spread of a novel virus that disease experts knew nothing about.
As the number of COVID cases dwindled with the passage of time, this temporary executive order was subsequently lifted on June 24 of the following year. Whether or not the order itself actually contributed in any way to the overall “flattening” of the curve in terms of the number of reported COVID deaths/hospitalizations remains a moot topic to this day. What the order DID accomplish was help usher in a new era for New York – infamous for being slow to adapt to changing times – to embrace technological advancement and increase efficiency within an industry that was in dire need of a makeover on both counts.
This new frontier seems to have finally arrived permanently: Governor Kathy Hochul signed Senate Bill 1780C into law, making RONs a permanent alternative to in-person notarization beginning – according to the DOS website – on February 25, 2022.
So wait a minute…what date was that? Are we sure it isn’t June 20, 2022? According to the bill itself, the act goes into effect 180 days after it “shall have become a law.” Granted, we are, at the time of writing this article, mere days away from June 20, so there really no need to fret about temporal accuracy in terms of these two dates. What does come across as particularly confusing is how, exactly, notaries who have decided to adopt RON as a preferred method will be confident that they are doing their job to the best of their ability and feel as though they are being compensated fairly for their work.
Beginning in January 2023, there will be a new set of rules and regulations in New York State by which remote notaries must abide. To New York State’s credit, their Department of State website lists several changes that will go into effect, such as requirements and length of time for recordkeeping methods, the eventual need to register with the state as an “electronic notary” (that term is a bit vague), and various other general rules in reference to permissible software, the maximum allowable fee to perform a RON, etc.
But this is where the useful information starts to go wanting. For starters, if there will be new rules that commence in January of next year, how can one be sure that any RONs performed between, say, now and January 2023 will not be invalidated due to unintentional non-compliance once these new rules take effect? The DOS states that any notary seeking to complete a notarial act through remote means must have “audio-visual communication technology”, This technology must have the ability to allow both the notary and the signor to interact with each other in “real-time.” Further, the notary must have a means of verifying the identity of a signor utilizing identity proofing and credential analysis.
Now, here are a few key points not covered by this summary of temporary guidelines:
Will certain notarial documents, i.e. acknowledgment certificates, need to be reworded in order to reflect the fact that the notarial act was accomplished via remote means? If so, how is it to be reworded?
Starting in January of 2023, RONs will have to pay an as-yet-undetermined fee to register with the state, separate from the registration and fee associated with being a notary public. RONs will also be facing new rules and regulations to be determined at that time. For both of these reasons, how does one even know whether the maximum allowable fee of $5.00 per remote act, which has already been decided upon, will be conducive to a sustainable income? Never mind that RON software platform companies – those that have made the decision to onboard New York notaries in the first place – charge exorbitant amounts of money for a notary to use their software. To make matters worse, these companies also can charge a monthly subscription fee or even a per-notarization fee!
The fact that the signor can be anywhere in the world so long as the notary is situated in New York State at first glance seems like a beneficial condition, but how is the time of the notarial act determined? For example, the notary can be in New York and it’s 8 pm Eastern Standard Time, while the signor might be in the Philippines where it’s 8 am – the following day! In this case, for purposes of electronic recordkeeping, now the day needs to be determined along with the time.
In conclusion, establishing best practices and defining a sustainable income stream for RON capabilities in New York State both have a ways to go. The above points need to be addressed in clear semantics, along with several others I haven’t even touched upon. We may now officially be in a post-COVID pandemic society, but perhaps it’s wise to wait out signing up to be a RON until all rules and guidelines are presented in a clear, finalized, and intelligible manner.
For more information on this daunting legislation, feel free to check out the following petition created by Change.org in conjunction with the New York Notary Alliance:
https://www.change.org/p/support-for-new-york-notary-public-questions-of-concern-for-updated-regulations