Online notaries public and electronic notarizations, granting rule-making authority, and providing a penalty. (FE)

Every official act of a notary public must be attested by the notary public's written signature or electronic signature, and the seal or stamp must be applied to notarized deeds or other written instruments that are acknowledged or sworn to. Under the Uniform Electronic Transactions Act, as adopted in this state, if a law requires a person's signature or a record (which may be tangible or electronic) to be notarized, this requirement is satisfied if the electronic signature of a notary public, together with any other information required to be included, is attached to or logically associated with the person's signature or the record.

Current law also includes the Uniform Law on Notarial Acts, as adopted in this state, which applies to notaries public and others authorized by law to perform notarial acts. Under the uniform law, a “notarial act” includes, among other actions, 1) taking an acknowledgment (which is a declaration that a person has executed an instrument and, if executed in a representative capacity, that the person signed the instrument with proper authority), 2) administering an oath or affirmation, 3) taking a verification upon oath or affirmation (which is a declaration that a statement is true, made by a person upon oath or affirmation), and 4) witnessing or attesting a signature. The uniform law specifies certain requirements for performing notarials acts, including verification of the identity of the person for whom the notarial act is performed. When performed by a notary public, a notarial act must be evidenced by a certificate of notarial act signed and dated by the notary public that includes identification of the jurisdiction in which the notarial act is performed and the date of expiration, if any, of the notary public's commission. The uniform law includes various forms for certificates of notarial acts that provide for the notary public's seal or stamp to be affixed and include other information. By executing a certificate of a notarial act, a notary public certifies that he or she has satisfied the requirements for performing that notarial act.

Under this bill, a person who holds a commission from DFI as a notary public and who meets certain eligibility requirements may obtain an additional commission as an online notary public. The term of this commission is four years. An online notary public who is physically located in this state may perform an online notarial act for a person who is physically located in the United States or for a person who is physically located outside the United States if certain conditions are satisfied. An online notarial act is a notarial act, as described above, performed by means of communication technology that meets standards established by DFI.

“Communication technology” means an electronic device or process that allows an individual physically in one location and a notary public physically located at another location in this state to communicate with each other in real time by sight and sound. An online notary public must verify the identity of the person for whom the notarial act is performed (principal) using certain prescribed procedures. A person for whom an online notarial act is performed is considered to appear personally before the online notary public at the time of the online notarial act. An online notary public must use an electronic notarial seal for an online notarial act and must prepare an electronic certificate of notarial act that satisfies certain requirements. An online notary public must keep specified electronic records for online notarized documents and must maintain the security of these records. The online notary public must also create an audio and video copy of the performance of the online notarial act. The online notary public must take reasonable steps to ensure the integrity and security of online notarizations, maintain a backup for all electronic records, and protect the backup records from unauthorized use. The online notary public may, however, designate a repository to maintain the electronic records and the audio and video recordings, and if such a designation is made the repository is subject to these requirements.

The bill also requires any person that offers the services of an electronic notarization system (online notarization system provider) to register with DFI. An online notarization system provider may authorize only DFI-commissioned online notaries public to use its electronic notarization system and must notify DFI of each online notary public authorized to use its system. The system must incorporate security measures.

The bill also authorizes any notary public to use an electronic signature and electronic seal for notarial acts performed in the physical presence of the principal.

The bill provides for rule making by DFI relating to online notaries public and online notarial acts.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report.