Notary Law on the Usage of Biometric Identifiers

When I first saw the title “Biometric Identifiers,” I thought I had received some information by mistake. I wondered what biometric identifiers could possibly have to do with notary work. However, as I continued to read the information, I quickly learned that Texas law (Chapter 503, Subtitle A., Section 503.001 of the Business & Commerce Code) describes a biometric identifier as a retina or iris scan, fingerprint, voiceprint, or record of hand or face geometry.

For the purposes of this article, I will be referring to how Texas laws affects the use of biometric identifiers. I would encourage you to learn how the laws of your state affect the capture and use of biometric identifiers. As a notary public instructor, I always stress to my students that ignorance of the law is no excuse.

You may wonder why these laws are important. Well, as notaries public, especially in states where we are required to maintain journals, we all know there is a thumbprint box in the notary journal for each notarial transaction. Some states, such as California, still require fingerprints for notary transactions, while in other states, such as Texas and New Mexico, it’s no longer required. Yet some habits are hard to break. A few weeks ago, I ran across a Texas notary who still requires thumbprints from individuals for whom he provides notarizations. He happily shared his fingerprint-smudged notary journal with me.

Why is this relevant? The same Texas law referenced above also states that a person may not capture a biometric identifier of an individual without (1) informing him or her (2) receiving the individual’s consent and (3) destroying the biometric identifier not later than the first anniversary of the date collecting it. I imagine it could be argued that persons seeking notarizations from Texas notaries who still require thumbprints are doing so because they believe it is a requirement for notarization and not an option. If that is the case, it cannot be automatically assumed that individual consent was received.

The same Texas law referenced earlier also provides instructions for biometric identifiers captured for commercial purposes. Is capturing a thumbprint of a person seeking document notarization considered a commercial transaction? I guess it could be since we usually charge for the service. I am not an attorney, nor am I biometrics expert, so basically everything in this article is written from a Texas notary public perspective. I do see this as something requiring further investigation.

The referenced Texas law provides some detailed information on what measures should be taken to protect the confidentiality of an individual’s commercially captured biometric information, including how the captured information can be used, how it should be stored, and how it should be destroyed.

Texas notaries, please take heed of the information shared in this article. Again, I also encourage notaries from other states to familiarize themselves with their state laws concerning biometric identification. As stated above, the referenced Texas law requires individuals to protect this information just as they would any other confidential information. In the state of Texas, any violation of this law could result in a civil penalty of up to $25,000 per violation.

Phyllis Traylor, U.S. Army Retired is a Contributing Writer with the American Association of Notaries.