PREFILED JAN 09 2019
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REFERENCE TITLE: remote online notarization; registration |
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State of Arizona Senate Fifty-fourth Legislature First Regular Session 2019
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SB 1030 |
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Introduced by Senator Leach: Representative Dunn
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AN ACT
amending Title 41, chapter 2, Arizona Revised Statutes, by adding article 4; amending section 44-7011, Arizona Revised Statutes; relating to notaries public.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 41, chapter 2, Arizona Revised Statutes, is amended by adding article 4, to read:
ARTICLE 4. REMOTE ONLINE NOTARIZATION
41-371. Definitions
In this article, unless the context otherwise requires:
1. "Communication technology" means an electronic device or process that allows a notary public and a remotely located individual to communicate with each other simultaneously by sight and sound.
2. "Credential analysis" means a process or service that meets the standards established under section 41-372 through which a third person affirms the validity of an identification credential through review of public or private data sources.
3. "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities.
4. "Electronic record" means information that is created, generated, sent, communicated, received or stored by electronic means.
5. "Electronic seal" means an electronic image that contains information attached to or logically associated with an electronic record and that contains the words "notary public", the name of the county in which the notary public is commissioned, the notary public's name as it appears on the notarial commission and the expiration date of the notarial commission.
6. "Electronic signature" has the same meaning prescribed in section 41‑351.
7. "Foreign state" means a jurisdiction other than the United States, a state or a federally recognized Indian tribe.
8. "Identity proofing" means a process or service that meets the standards established under section 41-372 through which a third person affirms the identity of a remotely located individual by a review of personal information from public or private data sources.
9. "Notarial act" means an act that is performed by a notary public of this state pursuant to section 41-313, subsection A.
10. "Outside the United States" means a location outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands and any territory, insular possession or other location subject to the jurisdiction of the United States.
11. "Person" means an individual, corporation, business trust, statutory trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency or instrumentality or any other legal or commercial entity.
12. "Personal knowledge" has the same meaning prescribed in section 41-311.
13. "Principal" means a remotely located individual whose signature is notarized in a remote online notarization, whether in an individual or representative capacity, or who makes an oath, affirmation or acknowledgment in a remote online notarization, other than in the capacity of a witness.
14. "Remotely located individual" means an individual who is not in the physical presence of the notary public performing a remote online notarization.
15. "Remote online notarization" or "remote online notarial act" means a notarial act performed by means of communication technology.
16. "Remote presentation" means transmission to a notary public through communication technology of an image of a remotely located individual's identification credential that is of sufficient quality to enable the notary public to reasonably identify the remotely located individual and to perform credential analysis.
17. "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States.
41-372. Rules; standards
A. On or before December 31, 2019, the secretary of state shall adopt rules to facilitate remote online notarizations. The rules shall include sufficient forms of notarial certificates for remote online notarizations and standards for communication technology, credential analysis, identity proofing and retention of the audio and visual recording created under section 41-375.
B. In adopting standards, the secretary of state may review and consider standards adopted by national standard-setting organizations.
41-373. Registration requirements
A. A notary public who is commissioned under section 41-312 may perform remote online notarizations if authorized by the secretary of state. Before a notary public performs an initial remote online notarization, the notary public shall register with the secretary of state, identify the technology that the notary public intends to use for remote online notarizations and receive written authorization from the secretary of state under subsection D of this section.
B. Unless earlier terminated pursuant to this chapter, the term of a notary public's authorization to perform remote online notarizations begins on the authorization date set by the secretary of state and continues as long as the notary public's commission remains valid. The renewal of a notary public's commission under section 41-312 constitutes the renewal of the notary public's authorization to perform remote online notarizations under this article.
C. A notary public who registers to perform remote online notarizations shall submit an application to the secretary of state in a form prescribed by the secretary of state that includes the following information:
1. The notary public's full legal name and official name used when acting as a notary public.
2. A description of the technology the notary public intends to use in performing remote online notarizations.
3. A certification that the notary public will comply with the rules adopted pursuant to section 41-372.
4. The notary public's e-mail address.
5. A disclosure of any license or commission revocations or other professional disciplinary actions taken against the notary public.
6. Any other information the secretary of state may require.
D. If the technology identified by the notary public conforms to the standards adopted under section 41-372 and the notary public satisfies the requirements of this section, the secretary of state shall approve the use of the technology and issue to the notary public written authorization to perform remote online notarizations during the term of the notary public's commission.
E. The secretary of state may reject a notary public's application for registration pursuant to section 41-330 or if any of the following applies:
1. The notary public fails to comply with this chapter or rules adopted under this chapter.
2. Any information on the application required under subsection C of this section is missing, inaccurate or incomplete.
3. The technology identified by the notary public does not conform to the standards adopted under section 41-372.
F. If a notary public's application for registration is rejected, the secretary of state shall notify the notary public within thirty days after receipt of the application and shall state the reasons for the rejection.
G. This section does not prohibit a notary public from receiving, installing or using a hardware or software update to the technology that the notary public identified under this section if the hardware or software update does not result in a technology that is materially different from the technology that the notary public identified.
41-374. Authority to perform remote online notarizations
A notary public who is physically located in this state and who is authorized to perform remote online notarizations under section 41-373 may perform a notarial act by means of communication technology for a remotely located individual who is physically located:
1. In this state.
2. Outside this state but not outside the United States.
3. Outside the United States if both of the following apply:
(a) The electronic record is either:
(i) To be filed with or relates to a matter before a court, governmental entity, public official or other entity subject to the jurisdiction of the United States.
(ii) Involves property that is located in the territorial jurisdiction of the United States or a transaction substantially connected to the United States.
(b) The notary public has no actual knowledge that the act of making the statement or signing the electronic record is prohibited by the foreign state in which the remotely located individual is located.
41-375. Electronic record of remote online notarizations
A. A notary public shall record each remote online notarial act performed by the notary public in the journal required by section 41-319. A notary public who is authorized to perform remote online notarizations under section 41‑373 may keep the journal required by section 41-319 in a permanent, tamper-evident electronic format that complies with the rules adopted by the secretary of state.
B. A notary public, or a person acting on behalf of the notary public, shall create an audio and visual recording of the performance of each remote online notarial act.
C. A notary public shall take reasonable steps to:
1. Ensure the integrity, security and authenticity of remote online notarizations.
2. Maintain a backup of the audio and visual recording required by subsection B of this section and, if applicable, the electronic journal kept by the notary public under subsection A of this section.
3. Protect the backup required by paragraph 2 of this subsection from unauthorized use.
D. A notary public or a guardian, conservator or agent of the notary public or a personal representative of a deceased notary public shall retain the audio and visual recording required by subsection B of this section or cause the recording to be retained by a depository designated by or on behalf of the person required to retain the recording. The recording shall be retained for at least ten years from the date of the remote online notarial act.
E. The audio and visual recording required by subsection B of this section is:
1. Subject to section 41-319 relating to public records.
2. Not subject to section 41-317.
41-376. Use of electronic signature and electronic seal
A. In performing a remote online notarization, a notary public shall attach or logically associate the notary public's electronic signature and electronic seal to the notarial certificate in a tamper‑evident format. The electronic seal must be capable of being copied together with the electronic record to which it is attached or with which it is logically associated. The notarial certificate must be attached to or logically associated with the electronic record that is the subject of the remote online notarial act. If the secretary of state establishes standards under section 41-352 or 41-372 for attaching or logically associating the electronic signature, electronic seal or notarial certificate, the process must conform to the standards.
B. A notary public's use of an electronic seal satisfies the requirement of section 41-313, subsection D, paragraph 3 to authenticate the remote online notarial act.
C. A notary public shall take reasonable steps to protect the notary public's electronic seal from unauthorized use. A notary public may not allow another person to use the notary public's electronic seal.
D. A notary public shall immediately notify an appropriate law enforcement agency and the secretary of state on actual knowledge of the theft or vandalism of the notary public's electronic seal or electronic journal. A notary public shall immediately notify the secretary of state on actual knowledge of the loss or use by another person of the notary public's electronic seal or electronic journal.
E. A notary public's possession or use of an electronic seal for an electronic notarization under article 3 of this chapter or for a remote online notarization is not a violation of section 41‑321, subsection B.
41-377. Remote online notarization procedures
A. Before performing a remote online notarization, a notary public shall:
1. Reasonably confirm that an electronic record before the notary public is the same electronic record in which the principal made a statement or on which the principal executed or adopted a signature.
2. Take reasonable steps to ensure that the communication technology used in the remote online notarization is secure from unauthorized interception.
B. In performing a remote online notarization, a notary public shall reasonably verify the identity of the principal by any of the following:
1. The notary public's personal knowledge of the principal.
2. Each of the following:
(a) The principal's remote presentation of an identification credential that constitutes satisfactory evidence of identity as defined in section 41-311.
(b) Credential analysis of the identification credential described in subdivision (a) of this paragraph.
(c) Identity proofing of the principal.
3. Oath or affirmation of a credible witness who either:
(a) Is personally known to the notary public and who personally knows the principal.
(b) Personally knows the principal and whose identity is reasonably verified by the notary public under paragraph 2 of this subsection.
C. A notary public may:
1. Require a principal or credible witness to provide additional information necessary to assure the notary public of the identity of the principal or credible witness.
2. Refuse to perform a remote online notarization if the notary public is not satisfied as to the identity of the principal.
D. A credible witness under subsection B of this section may be a remotely located individual if the credible witness, principal and notary public communicate by means of communication technology.
E. Notwithstanding section 41-313, subsection B, paragraph 3, a translator may be a remotely located individual if the translator, principal and notary public communicate by means of communication technology.
F. Section 41-319, subsection C does not apply to remote online notarizations.
G. The notarial certificate for a remote online notarization must indicate that the notarial act was a remote online notarization performed by means of communication technology. A notarial certificate is sufficient to satisfy the requirement of this subsection if it either:
1. Complies with rules adopted under section 41-372.
2. Is in a form otherwise sufficient under the laws of this state and contains a statement substantially as follows: "This remote online notarization involved the use of communication technology".
41-378. Termination of notary public commission
A. Except as provided in subsection B of this section, a notary public who is authorized to perform remote online notarizations and whose commission is terminated or revoked shall destroy the coding, disk, certificate, card, software or password that enables the notary public to attach or logically associate the notary public's electronic signature and electronic seal to an electronic record and shall certify compliance with this subsection to the secretary of state. On the death or adjudication of incompetency of a notary public, the notary public's personal representative or guardian shall comply with this subsection.
B. A former notary public whose commission terminated for a reason other than revocation or denial of renewal is not required to destroy the items described by subsection A of this section if the former notary public is recommissioned as a notary public within three months after the termination of the notary public's former commission.
C. A notary public's electronic seal is not subject to section 41‑317, subsection B.
D. The termination of a notary public's commission does not affect the retention requirements of section 41-375, subsection D.
41-379. Legal recognition and validity of remote online notarizations
A. A remote online notarization satisfies any law of this state that requires a principal to appear before, appear personally before or be in the presence of a notary public at the time of the performance of the notarial act.
B. A notary public's verification of a principal's identity pursuant to section 41-377, subsection B satisfies any law of this state that requires the notary public to obtain satisfactory evidence of identity of the principal for a remote online notarization.
C. The failure of a notary public to perform a duty or meet a requirement prescribed in this article does not invalidate a remote online notarial act performed by the notary public. A valid remote online notarial act does not prevent an aggrieved person from seeking to invalidate the electronic record or transaction that is the subject of the remote online notarial act or from seeking other remedies based on state or federal law. This subsection does not validate a purported remote online notarial act that is performed by an individual who is not authorized to perform remote online notarial acts.
41-380. Applicable law; conflict of laws
A. The validity of a remote online notarization shall be determined by applying the laws of this state, regardless of the physical location of the principal at the time of the remote online notarization.
B. A notary public who is authorized to perform remote online notarizations is subject to and must comply with this chapter except as modified or supplemented by this article.
C. If a conflict between this article and any other law of this state exists, this article controls.
41-381. Relation to electronic signatures in global and national commerce act
This article modifies, limits and supersedes the electronic signatures in global and national commerce act (P.L. 106‑229; 114 Stat. 464; 15 United States Code sections 7001 through 7031), but does not modify, limit or supersede 15 United States Code section 7001(c) or authorize electronic delivery of any of the notices described in 15 United States Code section 7003(b).
Sec. 2. Section 44-7011, Arizona Revised Statutes, is amended to read:
44-7011. Notarization; acknowledgment
Notwithstanding title 41, chapter 2, article 2, if the law requires a signature or record to be notarized, acknowledged, verified or made under oath, that requirement is satisfied if a notary completes a notarial act certificate on the electronic message or document record. That notarial act certificate on the electronic message or document record is complete without the imprint or perceivable image of the notary's seal if all of the following apply:
1. The electronic message or document record is signed pursuant to this chapter or section 18‑106 in the presence of a notary.
2. The notary confirms reasonably verifies that the electronic signature on the electronic message or document record is verifiably the electronic signature executed or adopted by the signer pursuant to this chapter or issued to the signer pursuant to this chapter or section 18‑106.
3. The notary electronically signs with an electronic signature that is consistent with this chapter or any other applicable law.
4. The following information appears electronically within the message record electronically signed by the notary:
(a) The notary's full name and commission number exactly as it appears on the notary's commission.
(b) The words "electronic notary public", "state of Arizona" and "my commission expires on (date)".
(c) The address of the notary's principal place of contact exactly as it appears on the notary's commission.
(d) The notary's e‑mail or other electronic address exactly as it appears on the notary's commission.
Sec. 3. Effective date
This act is effective from and after December 31, 2019.