FWD: Meeting agenda, updates, and corrections

["jmessing" <jmessing@law-on-line.com>]

This TC is meeting in conjunction with the ABA eTrust subcommittee.

---------- Original Message ----------------------------------
From:         jmessing <jmessing@law-on-line.com>
Reply-To:     jmessing <jmessing@law-on-line.com>
Date:          Sat, 14 Feb 2004 13:33:35 -0500

This message contains some corrections and additions to the previous meeting notice, puts forth an agenda for the February 17 meeting, and requests certain actions of interested members before the meeting.

1. New member Benjamin Snipes has cordially informed me that a previous introduction of him to the list was somewhat incorrect and that he is actually the Coordinator of the National Association of Civil-law Notaries.

For those who are interested in finding out more about NACLN, please visit the website, www.nacln.org.

Many thanks to Mr. Snipes for the corrected information.

Coincidentally, there was an informative description of the role of Civil Law Notaries in Alabama posted to the Notary Administrator list last week in response to a request for information from another secratary of state's office. I have requested permission from the author to post it to our list, and will do so if and when the permission is granted.

2. New member Mike Shea of the Secretary of State's office in Colorado has sent a description of an eNotarization process being considered by his office which has been sent out for review and comment prior to implementation. I am attaching the description from Mr. Shea, with his permission. Please post comments to the list which seem relevant to our work and direct other communications directly to Mr. Shea. If in doubt about the relevance to our work, please copy me at jmessing@law-on-line.com on any private email communication to Mr. Shea.

3. Correction to Draft Minutes of our last meeting. Bill Anderson graciously took notes during our secretary Eric Cohen's illness at the last meeting and has sent me certain corrections to the draft minutes which were prepared and distributed. Many thanks to Bill. I am attaching corrected minutes for your consideration and approval during the February 17 meeting.

4. Agenda for February 17 meeting

a. Roll call

b. Approval of minutes of last meeting

c. Continued work on the Mission Statement - NB, Please review section 5 of this message prior to the meeting.

     1. Advisability and content of definitions
     2. Scope of mission statement
     3. Content of mission statement

d. Scoping of article/symposium project for publication and agreed list of action items in connection therewith.

e. New business

f. Adjourn

As a reminder, the next call will take place on February 17, 2004 at 1 PM EST and 10 AM PST.

Leader's Name: John Messing
Conference Dial-in: 512-225-3050
Conference Guest Code: 84759#
Maximum Duration of the call: 1.5 Hours
Leader's Phone Number: 520-547-7933

5. Meeting preparation

We are beginning to close in on our proposed mission statement. It would be helpful to come to the meeting apprised of the issues with the action items to be discussed in mind and clarified. As an aid, please review the following.

a. Richard Hansberger has proposed the following:

     1. Terms and Definitions

Where "notarization" is understood to mean a notarial act performed by a commissioned Notary Public, and where "authentication" is understood to mean the process of identifying an individual either to establish a relationship with that individual or in connection with the individual's participation in a transaction.

     2. Mission

           A. Identify best practices for electronic transactions where notarization is required or desirable.

           B. Identify best practices for electronic transactions that require a level of authentication, but not necessarily notarization.

            C. Recommend standards to be used for e-notarizations, as appropriate, beginning with XML standards.

Tom Wrosch agrees on the usefulness of stating definitions and has suggested broadening the scope to include official acts of other commissioned officials qualified to authenticate documents and administer oaths, who may not technically be notaries, which leaves open a questions of whether and within which category to include authentications of notaries performed as apostilles by Secretaries of States.

In this regard, we may also wish to consider the Judicial profile being considered by the Digital Signature Services (DSS) Technical Committee of OASIS, to be used for server signing of documents by judicial officials and clerks of court, who also do not need necessarily to be notarial officials.

The Discussion portion of the DSS Judicial Profile, which explains the purposes, states as follows:

"This profile is intended to map to the DSS standard the existing and traditional American practice, using paper documents, of having the clerk of a court authenticate a document signed by a judge of the court. In conventional paper-based practice, the clerk does this by attesting that the judge is in fact a judge of the court. The clerk signs the attestation and affixes a seal of the court.

"This practice originated in the 19th century when many judges were circuit judges who travelled from community to community, often on horseback, to hear cases. The clerks resided in their communities but the judges often did not. Therefore, to be sure an order or judgment was authentic, the clerk countersigned the orders and judgments attesting to the identity of the judge as a judge of the court.

"In more recent times, the practice has proven essential to the enforcement in different states of decrees rendered by courts of sister-states. This is in high use in interstate custody battles, where often a custodial spouse after divorce goes to a different state and a custody battle ensues. Because states are constitutionally bound within certain limits to respect and enforce the decrees of sister states, authenticating a judicial signature is a core feature of this type of legal practice.

"The profile is an attempt to express existing requirements for paper documents to parameters recognizable by a DSS."

A member/observer to the DSS Technical Committee has suggested broadening the profile to include other such official acts. From my experience as a lawyer, this brings to mind the practice of attesting to immigration documents, which may be notarized or otherwise attested to before an immigration officer, who need not necessarily officially be a notary.

Richard Hansberger has indicated that the definition of non-notarial authentications contained in his definitions owes much to Spers. Is it possible to post to our list or have available the Spers source for this definition and any other sources that may be relevant in preparation for the February 17 meeting?

Thanks and best regards to all. I look forward to a productive meeting on February 17.















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Internet communications are insecure. If you would like to initiate secure communications, these can be made available upon request.

The information contained in this message may be legally privileged and confidential.  It is intended to be read only by the individual or entity to whom it is addressed or by their designee. If the reader of this message is not the intended recipient, you are on notice that any distribution of this message, in any form, is strictly prohibited. 

If you have received this e-mail in error, please immediately notify the sender by "Reply" command and/or John H. Messing, P.C. by telephone at (520) 547-7933 and permanently delete the original and any copies or printouts thereof. Although this email and any attachments are believed to be free of any virus or other defect, it is the responsibility of the recipient to ensure that a message is virus free. John H. Messing, John H. Messing PC and Law-on-Line Inc. take no responsibility for any loss or damage.
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1. Roll call

Charles Gillam, ContentGuard
RJ Schleck, Mortgage Bankers Association (MBA)
Mark Ladd, Property Records Industry Association (PRIA)
Harry Gardner, MBA
Dave Weiztel, Mitretek
Marc Aaronson, United States Notary Association (USNA)
Lori Wetzel, USNA
Ozzie Stallworth, National Notary Association (NNA)
Rich Hansberger, NNA
Bill Anderson, NNA
Eric Cohen, Price Waterhouse
Dr. Leff, Western Indiana University
John Messing, Law-on-Line


2. Approval of minutes. The minutes of August 5-6, 2003 and December 2, 2003 were approved by acclamation.


3. Mission Statement and goals

A discussion centered on proposed language to be included in the mission statement. It was agreed that a basic distinction should be observed in the mission statement of the group between e-notarizations, which involved traditional in-person notarial functions, and other e-authentications for official purposes that did not necessarily involve in-person identification but could use automated identifications.

The work product of the group should include core standards to be used for identification and authentication professionals, with various profiles for activities to include e-notarizations, beginning with the residential mortgage industry on the one hand and real time electronic financial reporting requirements (Sarbanes-Oxley) not necessarily requiring in-person identifications on the other.

Examples that were given in the agenda to explain the various concepts involved as follows:

  Best Practice: Require a notary to obtain proof of ID.
  Standard:  IDs must be government issued, have a unique identifying number associated with the name and a photo.
  Best Practice: Require ID to be validated.
  Standard:  ID format must match state format, including background color and uid number and name must match in state DMV     records as not revoked, which records are current within 24 hours.
  XML Standard: Include the standard information in an XML schema or DTD to govern ways in which the standardized information     is communicated, stored and shared. This enables many different vendors to provide software and/or services     interoperably.

  Discussion

  In San Francisco we agreed as a group that there were two value propositions for continuing to use in person enotarizations on electronic recordings. The first value was a recognition that a live witness testifying about an actual in person identification was superior as a way of holding signers to their documents of title. The alternative, which relates to automated identification processes, would lead in our legal system almost inevitably to cumbersome and often costly expert testimony about the reliability of the automated processes and their foibles, which often would be inconclusive. Also, business people were accustomed to in person identifications by humans for notarizations, courts were used to credibiity determinations from live witnesses about actual events witnessed by them, and so electronic notarizations in the presence of a notary required less cultural adaptation than automated processes, as for example, a PKI. (AKA warm fuzzies). One member pointed out that!
  enotarizations would have to be fast, cheap, and seamless. Another pointed out that they needed to be streamlined to get rid of unnecessary notarizations for so many seemingly unimportant items. A third pointed out that they could be broadened to include the concept of an identification and authentication professional. A fourth pointed out that such an I & A professional could help in the financial world, where rules such as Sarbanes Oxley may require real time identification of sources of financial data..

Richard Hansberger has just joined NNA in the newly created position of eNotary Manager. Richard confirmed an intention of the NNA to create an eNotarization method for inclusion in a MISMO-PRIA packet destined for efiling. He also offered to draft a proposed mission statement containing a new subsection (c) covering other "authentications" that do not require notarization.


4. Legal status of eNotarization under state and federal law. Agreement was evident in the group for the proposition that ESign and UETA together provided sufficient legal authority to date without further legislation or regulation at the state or local level to enable immediate eNotarizations. A project to produce a scholarly paper presenting this thesis generated enthusiasm. An alternative proposal to expand such a project to include a compendium of various opposing views on the legal status of eNotarization was also considered. David Weitzel offered to act as the point person for outreach to other groups to seek contributors to a compendium of views. John Messing, Rich Hansberger, and after the call, John Jones of PRIA, offered to participate in an outline for a paper to be developed by the group, in conjunction with SPeRS to the extent practicable.


5. Progress on work of Subcommittees

None was reported.


6. Next call and face to face

The next call will take place on February 17, 2004 at 1 PM EST and 10 AM PST.
Leader's Name: John Messing
Conference Dial-in: 512-225-3050
Conference Guest Code: 84759#
Maximum Duration of the call: 1.5 Hours
Leader's Phone Number: 520-547-7933


7. New business

There was no new business reported.


8. The meeting adjourned at 1:57 EST.




Colorado is in the preliminary stages of adopting rules regarding e-notarization, specifically for the purposes of allowing electronic real estate transactions between the Title companies and the clerks and recorders.

We have reviewed the current state of PKI and have determined that: a) it hasn't been widely adopted, b) it's very expensive, c) it's extremely cumbersome to implement and d) the solution doesn't adequately address issues that are more notary specific.

Colorado is proposing a concept that is somewhere in-between a handwritten signature and PKI.  The concept involves the use of internal accounting numbers, coupled with a series of random numbers.  For example, a notary applicant receives what we refer to as a validation number.  The number would be in the form of (YYYYN######) where N is the internal code for the particular division in the department.  A notary would be assigned a number upon completion of the application process of 20045123456.  This number would stay with the notary throughout the four years of the commission and in any future renewal.  Additionally, when a notary applicant indicates that he or she wants to be an "electronic notary", the office will generate a series of random numbers.  An example would be 709241, 235972, 135234 etc.  When the notary signs electronically, she would use the combined number of 20045123456709241 for the first document notarized and 20045123456235972 as her electronic signatu!
 re for the next document notarized, and so on.  The electronic signature will also include the standard notarial information such as state, county, expiration date, etc. The Secretary of State's office will keep a copy of the random numbers generated for each notary commission.  For each document notarized, the notary will keep all of the required journal information next to the electronic signature for that document.

In the event that an electronic signature is questioned, the Secretary of State will be able to verify both the validation number of the notary and the fact that a particular random number was issued to that notary.  In the event that a document is in question, the notary will provide a copy of the journal to the Secretary of State and the notary, electronic signature and document, date and time can be validated.

This process is simple because it uses existing programs already in use by the Secretary of State.  The validation numbers are already issued as part of the accounting process.  Random numbers are currently being generated by the office for use in the testing of petitions for signatures.  Training of the notary will be the biggest part of the effort.

Mike Shea
Co-director
Licensing and Enforcement
Colorado Secretary of State