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ARIZONA STATE SENATE
Fifty-Fourth Legislature, First Regular Session
remote online notarization; registration
Purpose
Allows a notary public (notary) to perform a notarial act by means of an electronic device or process for a notary and remotely located individual to communicate with each other (remote online notarization). Outlines requirements for registration, record-keeping and identity verification for remote online notarizations. Requires the Secretary of State (SOS) to establish rules and minimum standards for remote online notarizations.
Background
The SOS appoints notaries to serve four-year terms. Notaries must submit an application with the SOS and file an official oath and bond in an amount determined by the SOS within 20 days of appointment (A.R.S. § 41-312). The powers and duties of a notary include taking acknowledgements, administering oaths and affirmations, performing jurats and performing certified copies. Notaries may only perform these duties if the signer is in the presence of the notary at the time of notarization and the instrument is signed in a language that the notary understands. Additionally, a notary must receive satisfactory evidence of the identity of the signer of an acknowledgement or jurat before notarization. Notarial acts performed by notaries verify only the identity of the signer of a document and not the truthfulness, accuracy or validity of the document (A.R.S. § 41-311). Additionally, notaries must provide and keep an official seal containing the notary's commission number and maintain a public-record journal of all official acts performed as a notary (A.R.S. § 41-313).
While commissioned, a notary must keep all records and journals of the notary's acts for at least five years. On resignation or revocation of a notarial commission, the notary seal, journal and public records must be delivered to the SOS. The SOS must keep the notary seal, journals and records for at least five years (A.R.S. § 41-317).
Notarial commissions, duties and acts may be performed electronically, and documents may be performed with an electronic signature. The SOS must adopt rules that establish standards for secure implementation of electronic notarization by January 1, 2020 (A.R.S. § 41-352).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
Remote Online Notarizations
1. Allows a notary to perform remote online notarizations.
2. Specifies that a remote online notarization satisfies any statutory requirement for a principal to appear before or be in the presence of a notary at the time of performing a notarial act.
3. Requires, before executing an initial remote online notarization, a notary to:
a) register with and receive written authorization from the SOS; and
b) identify the communication technology (technology) that the notary intends to use for remote online notarizations.
4. Allows a notary to receive, install or use a hardware or software update to the technology used to perform remote online notarizations, so long as the technology is not materially different after the update.
5. Allows a notary to keep the notary's notarial journal in a permanent, tamper-evident electronic format that complies with SOS rules.
6. Allows a notary to perform a remote online notarization for a remotely located individual located within the United States (U.S.).
7. Allows a notary to perform remote online notarizations outside of the U.S. only if:
a) the record:
i. will be filed with or relates to matters subject to an entity within U.S. jurisdiction; or
ii. involves property located within U.S. jurisdiction or a transaction substantially connected to the U.S.; and
b) the notary has no knowledge that the notarization is prohibited by the foreign country in which the remotely-located individual is located.
8. Requires a notary to record each remote online notarization in the notary's journal.
9. Requires a notary or person acting on the notary's behalf to create an audio and visual recording of the performance of each remote online notarization.
10. Requires a notary to take reasonable steps to:
a) ensure the integrity, security and authenticity of remote online notarizations;
b) maintain a backup of the notarial journal and all audio and visual recordings; and
c) protect all backups and the notary's electronic seal from unauthorized use.
11. Requires an audio and visual recording to be retained for at least 10 years by the notary or a guardian, conservator, agent, personal representative or depository of the notary.
12. Specifies that termination of a notary's commission does not affect the retention requirement.
13. Specifies that audio and visual recordings of remote online notarizations are subject to the same public records requirements as notary journals and are not required to be provided to the SOS upon resignation.
14. Requires a notary to attach or logically associate the notary's electronic signature and electronic seal to the notarial certificate and electronic record for any remote online notarization in a tamper-evident format.
15. Requires the notary's electronic seal to be capable of being copied with the electronic record to which it was attached or associated.
16. Requires the process for attaching electronic signatures or seals to conform to SOS standards.
17. Specifies that the use of an electronic seal satisfies the requirement to authenticate the remote online notarization.
18. Allows a perceivable image of a notary's seal to be included on an electronic record, rather than an imprint of the seal.
19. Prohibits a notary from allowing the unauthorized use of the notary's electronic seal by another person.
20. Requires a notary to immediately notify the SOS and appropriate law enforcement agency of the theft or vandalism of an electronic seal or journal.
21. Requires a notary to notify the SOS of the loss or unauthorized use of the notary's electronic seal or journal.
22. Specifies that the use of an electronic seal does not violate the statutory requirement that a notary possess only one official seal.
23. Requires a notary to perform the following before executing a remote online notarization:
a) confirm that the electronic record is the same electronic record in which the principal made a statement or executed a signature; and
b) take reasonable steps to ensure that the technology is secure from unauthorized interception.
24. Requires a notary to reasonably verify the identity of the principal in a remote online notarization by:
a) the notary's personal knowledge of the principal;
b) a presentation of satisfactory identification credentials; or
c) an oath or affirmation of a credible witness that either personally knows the notary and principal or personally knows the principal and whose identity is reasonably verified.
25. Allows a notary to:
a) require a principal or witness to provide additional identification information; and
b) refuse to perform a remote online notarization if not satisfied with the identity verification of the principal or witness.
26. Allows a translator or credible witness used to verify the identity of a principal to be remotely located.
27. Requires a notary to perform an identity check each time the notary performs a remote online notarization for the same principal.
28. Requires the notarial certificate for remote online notarizations to indicate that the notarial act was performed by technology.
29. Requires a notarial certificate for remote online notarizations to:
a) comply with SOS standards and rules for remote online notarizations; or
b) be in a statutorily sufficient format and contain a statement specifying the use of technology.
30. Requires a notary whose commission is terminated or revoked, or the notary's personal representative or guardian, to destroy the coding, disk, software or other method that enables the notary to attach an electronic signature and seal to an electronic record.
31. Requires a notary to certify completion of the destruction of any coding, disk or software with the SOS.
32. Stipulates that a notary is not required to destroy electronic signature and seal data and access if the notary's commission is terminated for a reason other than revocation, denial or renewal and is recommissioned within three months of termination.
33. Stipulates that the failure of a notary to perform a duty or meet a statutory requirement for remote online notarizations does not invalidate the notarial act.
34. Allows an aggrieved person to seek to invalidate or seek other remedies relating to an electronic record or transaction from a remote online notarization.
35. Requires the validity of a remote online notarization to be determined by statute, regardless of the physical location of the principal at the time of notarization.
36. Specifies that the requirements of this act modify, limit and supersede the federal Electronic Signature in Global and National Commerce Act, except for specified exemptions outlined in federal code, including court orders and notices.
Registration Requirements
37. Requires a notary who registers to perform remote online notarizations to submit an application to the SOS that includes:
a) the notary's full legal name, official name used when acting as a notary and email address;
b) a description of the technology the notary intends to use for remote online notarizations;
c) a certification that the notary will comply with all rules relating to remote online notarizations;
d) a disclosure of any license or commission revocations or other professional disciplinary actions taken against the notary; and
e) any additional information required by the SOS.
38. Requires the SOS to approve the use of technology and issue written authorization to any notary that conforms to technology-use standards and application requirements.
39. Permits the SOS to reject a notary's application if the notary:
a) fails to comply with statutory remote online notarization requirements;
b) submits an application with missing, inaccurate or incomplete information;
c) intends to use technology that does not conform to SOS standards; or
d) meets any of the criteria for refusal of a public commission.
40. Requires the SOS to notify any notary within 30 days of receipt if an application is denied and state the reason for rejection.
41. Asserts that the term of authorization to perform remote online notarizations for a notary continues for as long as the notary commission remains valid.
42. Specifies that a renewal of a notary's commission also constitutes a renewal of authorization to perform remote online notarizations.
SOS Rules and Guidelines for Remote Online Notarizations
43. Requires the SOS to adopt rules by January 1, 2020, to facilitate remote online notarizations, which must include:
a) sufficient forms of notarial certificates for remote online notarizations; and
b) standards for technology, credential analysis, identity proofing and retention of audio and visual recordings.
44. Permits the SOS to review and consider federal standards when establishing remote online notarizations standards.
Miscellaneous
45. Defines terms.
46. Becomes effective on January 1, 2020.
Prepared by Senate Research
January 31, 2019
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