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Remote Notarization Laws in Pennsylvania and New Jersey Enacted Due to COVID-19 And Privacy Concerns

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April 27, 2020 | Legal Alert
Donna Urban, Krishna Jani

Pennsylvania and New Jersey have recently enacted remote notarization laws to comport with social distancing and quarantine measures put in place by both states to combat the spread of COVID-19. Knowing the requirements for notaries under each state’s laws, and knowing how the laws differ, could be important for your business. Additionally, due to recording requirements, these new laws could raise privacy concerns. In this alert, we cover similarities and differences in the state laws followed by a list of Frequently Asked Questions to help guide you in navigating this new terrain.

Main Takeaways & Best Practices

When it comes down to it, the Pennsylvania and New Jersey laws (key aspects of both laws are explained in more detail below) are not that different. For example, both states:

Although there are many similarities between the two laws, there are some important differences detailed below.

The Specifics: Pennsylvania’s Remote Notarization Law

Pennsylvania passed Senate Bill 841, which provides that a remotely-located individual may comply with Pennsylvania’s notary laws by appearing before a notary public by means of communication technology. This Bill shall be in effect only until 60 days after the termination of the COVID-19 disaster emergency. A notary public located in Pennsylvania may perform a notarial act facilitated by communication technology for a remotely-located individual if all of the following criteria are met.

Lastly, in Pennsylvania, a notary public is required to notify the Department of State that the notary public will be performing notarial acts facilitated by communication technology and identify the technology. If the Department has established standards for approval of communication technology or identity proofing, the communication technology and identity proofing must conform to the standards. You should ensure that an attorney or notary public you work with has done this prior to performing any remote notarization.

The Specifics: New Jersey’s Remote Notarization Law

Similarly, on April 14, New Jersey enacted A. 3903 enabling remote online notarization in the state for the duration of the COVID-19 pandemic. This Act will expire upon the rescission of Executive Order No. 103 by Governor Murphy. On March 19, the New Jersey Legislature passed Bill A. 3864 enabling remote online notarization. As of April 23, 2020, the bill awaits signature by the Governor and would become effective 90 days after enactment.

A notary public in New Jersey may perform remote notarizations if all of the following criteria are met:

FAQs

At this time, there does not appear to be a workaround for this legal requirement. The notary public should explain why the audiovisual recording is required by law and confirm that any recording will only be used for business purposes in connection with the matter at hand. There does not appear to be an exception for persons who lack access to the requisite technology. 

We will continue to track these developments and update this guidance as necessary.

Yes. DocVerify recommends vetting a remotely located individual with the following questions because if he or she cannot pass the identification verification requirements, he or she will not be able to complete the remote notarization using DocVerify. Vetting the individual up front will ultimately be a time saver because the third-party providers require the information below to generate at least five questions they need to answer. Even if the individual has most of the following information, if five questions cannot be generated, he or she will not be able to continue. 

1. Is he or she a United States citizen?

2. Does he or she have a valid state driver's license?

3. Does he or she have a valid social security number?

4. Does he or she have a credit history that spans 5 to 10 years?

5. Is he or she old enough to have enough history?

No. It only records the actual signature. This is why you should continue to record the entire session on a virtual meeting platform like Skype, Zoom, or Microsoft Teams to cover all bases and to be able to resolve potential issues of fact down the line. Moreover, Pennsylvania specifically requires a recording of the notarial act, including all interactions between the notary public and the remotely located individual.

We do not recommend using a public internet connection to perform remote notarizations. Not only are public internet connections typically not secure but the connections are very unpredictable. If a remotely located individual must use a public connection, then the notary public should be prepared for issues such as video dropping, bandwidth throttling, blocking, and any other methods that might be used to control their users (such as time limitations on free internet connectivity). These issues may adversely affect the quality of service and security of the remote notarization (e.g., Zoom-bombing the audiovisual recording).

Therefore, to the extent practicable, notaries should attempt to utilize secure and private internet connections on both ends of the remote notarizations.

Start over! For example, if any connections drop or are disconnected, DocVerify recommends starting the entire session over to protect not only the transaction, but the possibility that signers could switch during the time it is disconnected. Moreover, if a DocVerify account is cancelled, and is no longer a paid account, then the recording may be permanently removed from the system. Accordingly, it is the responsibility of the notary public to maintain the recording as DocVerify will only maintain the recording for as long as the account is paid and current.

We recommend using a virtual meeting platform to audiovisually record each session in its entirety, and store the recorded sessions on your protected document storage system.

Stay safe, everyone!

If you have any questions, please feel free to reach out to Donna Urban, Krishna Jani, or any member of Flaster Greenberg’s Telecommunications or Privacy & Data Security Groups.  

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