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April 23, 2020

Document Execution at a Distance: Validation of Electronic Signatures and Remote Online Notarizations

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The COVID-19 national emergency has brought to the fore the need for legal recognition of electronic means to execute documents, including those that, by federal or state law, must be in writing and/or notarized. Prior to the COVID-19 outbreak, all of the states and the District of Columbia already had some form of law validating the use of electronic signatures, and some had adopted or proposed legislation authorizing the use of remote online notarizations (RONs). But within the past month, Congress, state legislatures and both federal and state executive authorities have ramped up efforts to add to the existing laws, recognizing that requirements for in-person notarizations and paper ("wet") signatures could detrimentally impede a wide range of significant activities during the COVID-19 social distancing period.

In Congress, a bipartisan push to permit RONs is being led by Senators Mark Warner (D-VA) and Kevin Cramer (R-ND). Their proposed Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2020 (SECURE Act) would authorize every notary in the United States to perform RONs. The SECURE Act has garnered support from, among others, the American Financial Services Association, American Land Title Association, Mortgage Bankers Association, and National Association of Insurance and Financial Advisors.

As shown in the chart at the end of this Advisory, as of this writing, 44 states (and counting) currently permit RONs pursuant to legislation and/or temporary emergency measures. Further, Alaska's legislature has passed a bill that is pending the Governor's execution. California, Massachusetts, North Carolina, Oregon, South Carolina and the District of Columbia have yet to enact RON legislation or temporary emergency measures.

© Arnold & Porter Kaye Scholer LLP 2020 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.