noyary notarizing

If you've ever bought a house, you've been down that road. Hours of signing documents at the title company, with many of them requiring a notarized signature.

But for the disabled or for people in rural communities, access to a notary for that transaction and for hundreds of others isn't always easy or accessible.

That's where remote notaries come in, and although they have been available from other states for years, Coloradans have not been able to participate because concerns over data privacy had torpedoed proposed legislation.

The time may have finally come, thanks to compromise that involves two Colorado Springs Republican lawmakers, Sen. Bob Gardner and Rep. Terri Carver. 

A remote notary transaction begins when the person who needs notarized documents provides government-issued identification to prove they are who they say they are. That would happen over the Internet and recorded through audio-visual equipment. It's what happens next that had Gardner and Carver at odds for years.  

A bill Carver will sponsor in the House, Senate Bill 96, won unanimous approval on Feb. 12 from the Senate Judiciary Committee, on which Gardner serves.

That was a big step if you look at the history of the issue. In 2017, a Gardner-sponsored bill to update the state's laws on notaries included an amendment from Gardner on the remote issue. When the bill got to the House, however, that language was replaced with one that asked for a working group, to be convened by the Secretary of State. The bill passed unanimously in both the House and Senate and was signed into law by the governor.

Gardner then sponsored a stand-alone remote notary bill in 2018 with the information from the working group, and that's when the issue of transaction privacy became a focal point. It was one line in that bill, SB 109 — allowing a remote notary to sell information obtained in transaction with the informed consent of the consumer — that troubled consumer privacy advocates.

Who really reads all of those documents with lots of fine print? That was a worry for Carver and privacy advocates back then, which continues today. "We have seen 20-plus pages of terms and conditions, where the consent to use the data is hidden" among hundreds of provisions. "That's not true informed consent," Carver said.

In 2019, Carver and Gardner ran competing bills, with Gardner's fashioned after the Uniform Law Commission's model legislation and Carver's bill taking a different road that had stronger language on privacy.

Both bills died in the Senate.

The 2020 version may finally put to an end the back-and-forth over the privacy issue.

In other states, Carver told Colorado Politics, documents signed in a remote notary transaction have been part of the record, and that can include financial records and other information someone might want to keep private. The notaries could either share that information with a third party or sell it. 

To prevent that in Colorado, SB 96 limits the recording to the act of signing the document itself, not what's on the document, Carver said. The bill also places prohibitions against even that identity information being sold, transferred to an affiliated company or otherwise used for commercial gain.

What the bill doesn't do is mention specific technologies, Carver said, since technology changes so often. 

During the Feb. 12 hearing, judiciary chair Sen. Pete Lee, D-Colorado Springs, raised the issue of data privacy. 

"How can we be comfortable that information from real estate transactions, which includes bank records, financial statements, verification of income, isn’t going to be breached" and subject to "nefarious purposes?" Lee asked.

Terry Jones of the Mortgage Lenders Association said that the best way to prevent data from being misused is to make sure it isn’t there in the first place. That's why SB 96 limits the information retained in a remote transaction. "That’s our first line of defense against data breaches," Jones said.

How long that identity information will be retained will be up to the Secretary of State, although 10 years has been recommended in the past. The Secretary of State has authority over notaries, and if the bill passes will conduct rulemaking to conform with the law.

"We are fine with the Secretary of State's oversight," which Carver said will ensure companies aren't using that data inappropriately, that the process will be done with integrity and includes the important data privacy protections. 

Gardner told Colorado Politics Friday that the bill is "workable. I would have preferred to have the Uniform Law version, but it's not much different" from that in its mechanics, he said.

His position and that of the Uniform Law Commission has always been "that the privacy concerns are legitimate but go far beyond remote notary and should be addressed in a comprehensive privacy bill," which Gardner said could yet surface in the 2020 session.

Gardner pointed out that there's massive data collection on every person, obtained from smartphones and internet searches, and that data is for sale. For example, Gardner noted a Wall Street Journal report from Feb. 7 that said the Trump administration is buying commercial data that it can't get legally without a court order to "map the movements of millions of cellphones in America" and tied to the administration's efforts on immigration and border enforcement.

A Washington Post editorial last Sunday said that the federal government can't subpoena "geographic data directly from cellphone companies without going through the courts, precisely because of that data’s 'depth, breadth, and comprehensive reach.'" That's based on a 2017 Supreme Court decision, the editorial said. The workaround: the government is buying that data on the open market.

"There are around 6,000 or 7,000 discrete pieces of data on just about every one of us," Gardner said. And it's identifiable by person. That allows, for example, for political parties to specifically target voters. "Everyone enjoys the internet but you're creating a lot of data patterns. That was the concern for the remote notary people," Gardner said.

SB 96 "is an acceptable compromise. I'm glad we got there and we won't have to fight about it again next year."

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