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.
Although remote online notarization may be convenient for some consumers, it is critical that states be able to implement safeguards to protect their residents with respect to the authentication process and the security and retention of private, sensitive information. As currently written, this bill would effectively prevent states from enforcing their own consumer protections for remote online notarizations.
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. Not only does this diminish the rights of consumers, but it would also create significant enforcement problems, as states do not have regulatory oversight of out-of-state notaries.
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. 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.
