State: Virginia

Summary:

House Bill 2064 now authorizes a credible witness to identify a remote signer for a remote online notarization (RON) or requires two forms of “identity proofing.” It also requires new information to be included in the notarial certificate for a RON.

Signed:  March 11, 2021

Effective:  March 11, 2021

Chapter: 78

Affects:
Amends Sections 47.1-2 and 47.1-16 of the Code of Virginia.

Changes:

1. Defines “credential analysis,” “identity proofing,” and “remote online notarization.”
2. Modifies the identification requirements for remote online notarization by requiring the Notary to have (a) personal knowledge of the principal, (b) the oath or affirmation of a credible witness, or (c) at least two of the following: (i) credential analysis of an unexpired government-issued identification bearing a photograph of the principal’s face and signature, (ii) identity proofing by an antecedent in-person identity proofing process in accordance with the specifications of the Federal Bridge Certification Authority, (iii) another identity proofing method authorized in guidance documents, regulations, or standards adopted pursuant to COV 2.2-436, or (iv) a valid digital certificate accessed by biometric data or by use of an interoperable Personal Identity Verification card.
3. Requires a notarial certificate for a remote online notarization to include the county in Virginia where the electronic Notary was physically located at the time of the notarial act.
4. Requires a notarial certificate for a remote online notarization to include a statement whether the notarization was done in person or by remote online notarization.
5. Makes technical changes.

Analysis:

In 2012, Virginia was the first state to enact and implement remote online notarization. It was the state that started the most significant legislative trend in the history of the U.S. Notary Public office. Twenty-nine states have followed Virginia’s lead. In the intervening years, voices in the Notary community criticized Virginia’s RON statute for being weak on identification and not requiring a notarial certificate for a RON to explicitly state that a RON was performed. At the time Virginia enacted its bill, technologists were starting to figure out how to verify the identity of remotely located individuals. Virginia law only allowed a Notary to use personal knowledge, a digital certificate accessed by biometric data that complied with the prevalent federal standard, or an antecedent in-person identity proofing process in accordance with the specifications of the Federal Bridge Certification Authority. States that followed Virginia in enacting RON moved to a different set of methods to identify individuals remotely, including “credential analysis” of a government-issued identification document such as a passport or driver’s license. House Bill 2064 now brings its methods of identification in line with other states by allowing a credible witness to identify a remote signer or requiring two forms of “identity proofing.” In another change, the notarial certificate for a RON now must indicate the name of the city or county in Virginia where the electronic Notary was located when they performed the RON and a statement indicating either that the notarial act was performed in person or by a RON.

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In 1998, the National Notary Association introduced the first-ever comprehensive and detailed code of ethical and professional conduct for America’s Notaries: The Notary Public Code of Professional Responsibility. The Code addresses common problems, issues and questions encountered by today’s Notaries by prescribing principles, standards and rules and applying them in helpful specific examples.

The Code is designed to guide Notaries Public when state statutes, regulations and official directives fall short in guiding notaries to perform their official duties. It also serves these functions:

• Educates Non-Notaries – The Code may be handed to an employer, a coworker, a customer or any other user of notarial services to explain the Notary’s proper role.
• Catalyst for Change – For lawmaker and administrators, the Codeis a moral imperative for progressive change and a catalyst for improving notarial statutes and conventions.
• Reduces Fraud, Litigation – Widespread implementation of the Code will reduce fraud and the volume of civil and criminal lawsuits.
• Fosters Confidence – Any Notary’s adherence to the standards of the Code brings confidence that he or she is acting in accordance with the highest professional and ethical traditions of the Notary office.
• Engenders Respect – Widespread adherence to the standards of the Code will heighten professionalism and engender respect and recognition for the Notary office in this nation and abroad.

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