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International Cybernotaries and Electronic Commerce

By Clayton J. Joffrion

The Florida Legislature has enacted a law directed toward electronic commerce and digital notarization. The hallmark of the law is the recognition of digital signatures in a commercial setting and an encrypted means of validating, personalizing, and authenticating an electronic document. Section 282.73, Florida Statutes, provides that an electronic signature may be used to sign a writing and shall have the same effect as a written signature.

Asymmetric Cryptosystem

Digital signature technology, also called Public Key Infrastructure, uses an asymmetric cryptosystem to encrypt a message. One party has a "private key" which is an encrypted message identifying that person. The receiving party has a "public key" which decodes the "private key" message to identify the sender but which does not decode the secret encrypted signature. To add an additional level of security, "certification authorities" can be used to issue a "public key certification" which is published along with the certifier's public key. Basically, the sender sends the message to a certifying authority who forwards it certifying that it contains the sender's signature. The Florida Legislature has authorized the Secretary of State to act as a certifying authority and to license and regulate private certification authorities.

United Nations Efforts

In 1996 the UNCITRAL (U.N. Commission on International Trade Law) Model Law on Electronic Commerce was offered to establish rules and norms to validate and recognize contracts formed through electronic means, to set default rules for contract formation and governance of electronic contract performance, to define the characteristics of a valid electronic writing, provide for the acceptability of electronic signatures for legal and commercial purposes, and for the admission of computer evidence in arbitration proceedings. In the U.S., Florida now joins Utah, California, Oregon, Washington, and Wyoming in implementing digital signature legislation in recognition of the federal government's Digital Signature Standards and the ABA's Digital Signature Guidelines.

Authentication Differences

An electronic document containing a digital signature or even a public key certification can now be the equivalent of a written paper document. However, a mere writing may not suffice for some legal documents. Documents such as wills, codicils, securities interests, et cetera must meet certain procedural and content requirements to be valid. This is not only true in the U.S., but there are fundamental differences in documentation authentication between other countries. The result has been the rejection by legal and recording authorities overseas of U.S.-executed documents. Electronic commerce would, therefore, not necessarily benefit international transactions. Therefore, the new act created a new quasi-public office known as the International Attorney - Notary whose role will be to offer technical and legal expertise in a single specialization.

International Cybernotaries

The new act authorizes the Florida Secretary of State to appoint International Attorney - Notaries. The power of the new international notary will be to authenticate instruments including the particulars and capacities to act of transacting parties, confirmation of the full text of the instrument, the signatures of the parties (or legal equivalent), and to affix the signature and seal of the Florida International Attorney - Notary.

According to the Florida Secretary of State, the cybernotary concept is designed to facilitate international business transactions between Florida and civil law countries where international transactions are executed by international attorney notaries. Presently, Florida notaries are statutory witnesses. In the civil tradition authentication by a notairie generally provides greater assurance of authenticity than acknowledgements before American notaries.

International Authority

Since 1982 for the United States, the U.N. Convention Abolishing Requirement of Legalization for Foreign Public Documents (TIAS 10072; 527 UNTS 189) has provided authority for contracting states to designate official authorities competent to issue certificates attesting to the authenticity and capacity of persons signing notarial acts and other public documents. In both Florida and Louisiana the Secretary of State has been designated as competent to issue certifications. Under the Florida plan, the International Attorney - Notary is appointed by the Secretary of State and receives international authority under the convention by virtue of the appointment.

The Protocol

The Florida act requires that each International Attorney - Notary ("IAN") maintain a protocol which is a registry in which the acts passed before or certified by the IAN are to be archived. The Florida Secretary of State is also authorized to adopt rules, prescribe procedures for the permanent archiving, set reasonable fees, and educational requirements and testing procedures. Strangely, the IAN does not have the authority to certify or execute documents for use in the United States. This could have confusing results if a foreign choice of law or forum provision was held not to apply thus leaving the United States as a proper forum. Out of an abundance of caution parties would have to have documents executed before an IAN and a regular notary. It does not make sense to expect a foreign country to accept a certification which is worthless in the country where it was executed. This ridiculous result probably arises because of the differences between regular Florida notaries and the new IANs. Since Louisiana notaries are already have more responsibility, a two-tiered notary system could be an alternative to Florida's scheme for IANs with no domestic authority.

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