Bill Text: CA AB743 | 2023-2024 | Regular Session | Amended
Bill Title: Remote online notaries public.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2024-02-01 - From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB743 Detail]
Download: California-2023-AB743-Amended.html
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Amended
IN
Assembly
April 19, 2023 |
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Amended
IN
Assembly
March 07, 2023 |
CALIFORNIA LEGISLATURE—
2023–2024 REGULAR SESSION
Assembly Bill
No. 743
| Introduced by Assembly Member Petrie-Norris |
February 13, 2023 |
An act to amend Sections 1182, 1183, and 1207 of, and to add, repeal, and add Section 1181.1 of, the Civil Code, and to amend Sections 8207.4 and 8214.1 of, to add the heading of Article 1 (commencing with Section 8200) to, and to add Article 2 (commencing with Section 8231) to, Chapter 3 of Division 1 of Title 2 of, the Government Code, relating to notaries public.
LEGISLATIVE COUNSEL'S DIGEST
AB 743, as amended, Petrie-Norris.
Remote online notaries public.
Existing law authorizes the Secretary of State to appoint and commission notaries public in the number the Secretary of State deems necessary for the public convenience. Existing law requires a notary public to keep one active sequential journal at a time of all official acts performed as a notary public. Existing law authorizes notaries public to act as notaries in any part of the state and prescribes the manner and method of notarizations. Existing law establishes various requirements to ensure the security of notary seals and imposes a civil penalty for a violation of those provisions.
The California Public Records Act requires that public records, as defined, be available to the public for inspection and made promptly available to any person.
This bill would authorize a notary public or an
applicant for appointment as a notary public to apply for registration with the secretary to be a notary public authorized to perform online notarizations by submitting an application that meets certain requirements. The bill would also require an entity to register with the Secretary of State as an online notarization platform or depository before providing an online notarization system or depository, as defined, to an online notary public. The bill would require a representative of an online notarization platform to certify compliance with applicable laws under penalty of perjury. The bill also creates a civil cause of action against an online notarization platform or depository for a violation of those laws. The bill would require the Secretary of State to develop an application for registration and establish rules to implement the bill by January 1, 2028.
This bill would authorize the Secretary of State to charge an applicant a fee for an application for
registration in an amount necessary to administer the act. The bill would authorize an online notary public to perform notarial acts and online notarizations by means of audio-video audiovideo communication. The bill would establish various requirements applicable to an online notary public, including requiring an online notary public to keep a secure electronic journal to record online notarial acts, requiring an electronic notarial certificate to be a specified form that is required to be signed under penalty of perjury, and requiring an online notary public to destroy certain information upon termination of a commission, as specified.
This bill would establish various requirements applicable to an online notarization platform, including prohibiting an online notarization
platform or depository from accessing, using, sharing, selling, disclosing, producing, providing, releasing, transferring, disseminating, or otherwise communicating the contents of an online notarial act, with specified exceptions. The bill would also make other conforming changes. The bill would impose requirements for ensuring the security of an electronic signature or electronic seal and would make a violation of those provisions subject to civil penalties. The bill would make a violation of those provisions grounds for refusal or revocation of a commission as a notary public.
This bill would make it a misdemeanor for any person who, without authorization, knowingly obtains, conceals, damages, or destroys the certificate, disk, coding, card, program, software, or hardware enabling an online notary public to affix an official electronic signature or seal. The bill would make it a misdemeanor for an online notary public to willfully fail or refuse to deliver all
notarial records and papers to the Secretary of State within 30 days of when the online notary public resigns, is disqualified, is removed from office, or allows the online notary public’s registration to expire. By creating new crimes, and by expanding the scope of the existing crime of perjury, this bill would impose a state-mandated local program.
This bill would exempt from the California Public Records Act records of online notarizations maintained by the Secretary of State.
Existing law provides that any instrument affecting the title to real property, one year after the same has been copied into the proper book of record, that is kept in the office of any county recorder, provides notice of its contents to specified individuals, notwithstanding any defect, omission, or informality in the execution of the instrument or in the certificate of acknowledgment, or absence of that certificate.
This bill would provide that any instrument affecting the title to real property that is acknowledged by online notarization and properly indexed or copied in the proper book of record imparts effective notice without the above-described one year requirement.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YESBill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 1181.1 is added to the Civil Code, to read:1181.1.
(a) Section 1181 shall not be construed to authorize any person, other than a notary public authorized by the Secretary of State to perform online notarizations pursuant to Article 2 (commencing with Section 8231) of Chapter 3 of Division 1 of Title 2 of the Government Code, to take a proof or acknowledgment of an instrument by means of appearances using(b) An online
notarization platform shall not be authorized for use in California and a notary public shall not provide online notarization for any principal prior to certification by the Secretary of State on its internet website that the Secretary of State’s technology project necessary to implement statutes related to online notarization is complete.
(c) This section shall remain in effect until January 1, 2028, and as of that date is repealed.
SEC. 2.
Section 1181.1 is added to the Civil Code, to read:1181.1.
(a) Section 1181 shall not be construed to authorize any person, other than a notary public authorized by the Secretary of State to perform online notarizations pursuant to Article 2 (commencing with Section 8231) of Chapter 3 of Division 1 of Title 2 of the Government Code, to take a proof or acknowledgment of an instrument by means of appearances using(b) This section
shall become operative on January 1, 2028.
SEC. 3.
Section 1182 of the Civil Code is amended to read:1182.
(a) The proof or acknowledgment of an instrument may be made without this state, but within the United States, and within the jurisdiction of the officer, by any of the following:(1) A justice, judge, or clerk of any court of record of the United States.
(2) A justice, judge, or clerk of any court of record of any state.
(3) A commissioner appointed by the Governor or Secretary of State for that purpose.
(4) A notary public.
(5) Any other officer of the state where the acknowledgment is made authorized by its laws to take such proof or acknowledgment.
(b) Commencing January 1, 2028, the proof or acknowledgment of an instrument may be made through online notarization by a notary public located without this state, but within the United States, if both of the following conditions are satisfied at the time of the notarial act:
(1) The principal is located without this state.
(2) The notarial act is one that is lawful for the notary public to perform through online notarization for the principal.
(c) (1) Subdivision (a) applies to the proof or acknowledgment of
an instrument made through online notarization by a notary public located without this state, but within the United States, made on or before December 31, 2027.
(2) Commencing January 1, 2028, subdivision (a), rather than subdivision (b), applies when the proof or acknowledgment made through online notarization without this state, but within the United States, is made with respect to an instrument governed by the laws of another state and the proof or acknowledgment is offered to show that the instrument is in compliance with, or is otherwise valid under, that state’s laws.
(d) The terms “online notarization,” “online notarization platform,” and “principal” as used in subdivision (b) shall have the same meaning as in Section 8231.1 of the Government Code.
SEC. 4.
Section 1183 of the Civil Code is amended to read:1183.
(a) The proof or acknowledgment of an instrument may be made without the United States, before any of the following:(1) A minister, commissioner, or chargè d’affaires of the United States, resident and accredited in the country where the proof or acknowledgment is made.
(2) A consul, vice consul, or consular agent of the United States, resident in the country where the proof or acknowledgment is made.
(3) A judge of a court of record of the country where the proof or acknowledgment is made.
(4) Commissioners appointed by the Governor or Secretary of State for that purpose.
(5) A notary public.
(b) If the proof or acknowledgment is made before a notary public, the signature of the notary public shall be proved or acknowledged (1) before a judge of a court of record of the country where the proof or acknowledgment is made, or (2) by any American diplomatic officer, consul general, consul, vice consul, or consular agent, or (3) by an apostille (certification) affixed to the instrument pursuant to the terms of The Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents.
(c) This section shall not permit the
proof or acknowledgment of an instrument made through online notarization by a notary public located without the United States.
SEC. 5.
Section 1207 of the Civil Code is amended to read:1207.
(a) Any instrument affecting the title to real property, one year after the same has been copied into the proper book of record, kept in the office of any county recorder, imparts notice of its contents to subsequent purchasers and encumbrancers, notwithstanding any defect, omission, or informality in the execution of the instrument, or in the certificate of acknowledgment thereof, or the absence of any such certificate; but nothing herein affects the rights of purchasers or encumbrancers previous to the taking effect of this act. Duly certified copies of the record of any such instrument may be read in evidence with like effect as copies of an instrument duly acknowledged and recorded; provided, when such copying in the proper book of record occurred within five years prior to the trial of the action, it is first shown that the original instrument was genuine.(b) Any instrument affecting the title to real property that was acknowledged using remote online notarization pursuant to Article 2 (commencing with Section 8231) of Chapter 3 of Division 1 of Title 2 of the Government Code or pursuant to the laws of another state, and that has been properly indexed or copied into the proper book of record, imparts notice of its contents to subsequent purchasers and encumbrancers, notwithstanding any defect, omission, or informality in the execution of the instrument, or in the certificate of acknowledgment thereof, or the absence of any such certificate.
SEC. 6.
The heading of Article 1 (commencing with Section 8200) is added to Chapter 3 of Division 1 of Title 2 of the Government Code, to read:Article 1. Notaries Public
SEC. 7.
Section 8207.4 of the Government Code is amended to read:8207.4.
(a) Any person who willfully violates any part of Section 8207, 8207.1, 8207.2, 8207.3, or 8231.8 shall be subject to a civil penalty not to exceed one thousand five hundred dollars ($1,500) for each violation, which may be recovered in a civil action brought by the Attorney General or the district attorney or city attorney, or by a city prosecutor in any city and county.(b) The penalty provided by this section is not an exclusive remedy, and does not affect any other relief or remedy provided by law.
(c) This section shall become operative on January 1,
1992.
SEC. 8.
Section 8214.1 of the Government Code is amended to read:8214.1.
The Secretary of State may refuse to appoint any person as notary public or may revoke or suspend the commission of any notary public upon any of the following grounds:(a) Substantial and material misstatement or omission in the application submitted to the Secretary of State to become a notary public.
(b) Conviction of a felony, a lesser offense involving moral turpitude, or a lesser offense of a nature incompatible with the duties of a notary public. A conviction after a plea of nolo contendere is deemed to be a conviction within the meaning of this subdivision.
(c) Revocation, suspension, restriction, or denial of a professional license, if the revocation, suspension, restriction, or denial was for misconduct based on dishonesty, or for any cause substantially relating to the duties or responsibilities of a notary public.
(d) Failure to discharge fully and faithfully any of the duties or responsibilities required of a notary public.
(e) When adjudicated liable for damages in any suit grounded in fraud, misrepresentation, or for a violation of the state regulatory laws, or in any suit based upon a failure to discharge fully and faithfully the duties as a notary public.
(f) The use of false or misleading advertising wherein the notary public has represented that the
notary public has duties, rights, or privileges that the notary public does not possess by law.
(g) The practice of law in violation of Section 6125 of the Business and Professions Code.
(h) Charging more than the fees prescribed by this chapter.
(i) Commission of any act involving dishonesty, fraud, or deceit with the intent to substantially benefit the notary public or another, or substantially injure another.
(j) Failure to complete the acknowledgment at the time the notary’s signature and seal are affixed to the document.
(k) Failure to administer the oath or affirmation as required by paragraph
(3) of subdivision (a) of Section 8205.
(l) Execution of any certificate as a notary public containing a statement known to the notary public to be false.
(m) Violation of Section 8223.
(n) Failure to submit any remittance payable upon demand by the Secretary of State under this chapter or failure to satisfy any court-ordered money judgment, including restitution.
(o) Failure to secure the sequential journal of official acts, pursuant to Section 8206, or the official seal, pursuant to Section 8207, or willful failure to report the theft or loss of the sequential journal, pursuant to subdivision (b) of Section 8206.
(p) Violation of Section 8219.5.
(q) Commission of an act in violation of Section 6203, 8214.2, 8225, or 8227.3 of the Government Code or of Section 115, 470, 487, subdivision (a) of Section 487a, or Section 530.5 of the Penal Code.
(r) Willful failure to provide access to the sequential journal of official acts upon request by a peace officer.
(s) Violation of Section 8231.6 or 8231.7.
SEC. 9.
Article 2 (commencing with Section 8231) is added to Chapter 3 of Division 1 of Title 2 of the Government Code, to read:Article 2. Remote Online Notarization
8231.
(a) This article shall be known, and may be cited, as the Remote Online Notarization Act.(b) An online notarization platform shall not be authorized for use in California and a notary public shall not provide online notarization for any principal pursuant to this article prior to certification by the Secretary of State or prior to completion of the Secretary of State’s technology project necessary to implement statutes related to online notarization. The Secretary of State shall complete the technology project no later than January 1, 2028.
8231.1.
As used in this article, the following terms have the following meanings:(a) “Audio-video “Audiovideo communication” means being able to see, hear, and communicate with another individual in real time using electronic means in a manner that conforms to the requirements of this article and any rules or regulations adopted by the Secretary of State pursuant to this article.
(b) “Credential” means a record evidencing an individual’s identity that satisfies
the requirements of Section 1185 of the Civil Code.
(c) “Credential analysis” means a process or service operating according to the requirements of this article and any rules or regulations adopted by the Secretary of State pursuant to this article, through which a third party affirms the validity of a credential through review of public and proprietary data sources.
(d) “Depository” means an individual or entity that has an active certification with the Secretary of State pursuant to Section 8231.15 and is capable of storing a journal entry or record of audio-video audiovideo communication of an online
notarization on behalf of a notary public.
(e) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(f) “Electronic journal” means an active sequential record of all official acts performed while using an online notarization platform performed by a person acting as a notary public authorized to perform remote online notarization maintained in a secure electronic format according to the requirements of this article and any rules or regulations adopted by the Secretary of State pursuant to this article. An electronic journal shall be capable of providing both physical and electronic copies of any entry made therein.
(g) “Electronic online notarial certificate” means the part of, or attachment to, an electronic record that is completed by the notary public authorized to perform remote online notarization and contains both of the following:
(1) The notary public’s electronic signature and electronic seal or, where applicable, the notary public’s electronic signature that meets the requirements of subdivision (f) of Section 27391, where applicable, and electronic seal.
(2) The facts attested to by the notary public in the particular online notarization.
(h) “Electronic record” means a record created, generated, sent, communicated, received, or stored by electronic means.
(i) “Electronic seal” means information within a notarized electronic record that corresponds to information in notary seals used on paper records and that, where applicable, conforms to the requirement of this article, including, but not limited to, subdivision (b) of Section 8231.7 and any rules or regulations adopted by the Secretary of State pursuant to this article.
(j) “Electronic signature” means an electronic sound, symbol, or process attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the electronic record.
(k) “Express written request” means a request made in writing and initiated by a principal to access, use, share, sell, disclose, produce, provide, release, transfer, disseminate, or otherwise communicate
the specified information for a specific purpose. The nature of the access, use, sharing, sale, disclosure, production, provision, release, transfer, dissemination, or other communication shall be conveyed to the principal in clear and prominent terms in such a manner that an ordinary principal would notice and understand it. Express written consent cannot be inferred.
(l) “Identity proofing” means a process or service operating according to the requirements of this article and any rules or regulations adopted by the Secretary of State pursuant to this article through which a third party affirms the identity of an individual through review of personal information from public and proprietary data sources.
(m) “Notarial act” means the performance of a duty authorized by Section
8202 or 8205 and includes acts authorized by this article.
(n) “Online notarization” and “online notarial act” mean a notarial act performed by a notary public by means of an online notarization system that meets the requirements of this article and any rules or regulations adopted by the Secretary of State pursuant to this article, where the record that is the subject of the notarial act is an electronic record.
(o) “Online notarization platform” includes an individual or entity that has an active certification with the Secretary of State pursuant to Section 8231.15 and provides an online notarization system to a principal or a notary public authorized to perform remote online notarization.
(p) “Online
notarization system” means the computer hardware and software that enable a notary public to do both of the following:
(1) Perform an online notarial act by means of audio-video audiovideo communication.
(2) Create an audio-video audiovideo recording and a corresponding entry for the appropriate electronic journal for each such online notarial act.
(q) “Notary public’s electronic signature”
means an electronic signature that does both of the following:
(1) Meets the requirements of this article and any rules or regulations adopted by the Secretary of State pursuant to this article.
(2) Includes an image of the notary public’s handwritten signature as required to be provided to the Secretary of State under subdivision (d) of Section 8231.8.
(r) “Principal” means an individual, other than a credible witness pursuant to Section 1185 of the Civil Code, whose electronic signature is notarized, or whose oath or affirmation is taken by an online notary public, during an online notarization.
(s) “Record” means information that is inscribed on a paper copy
or that is stored in an electronic or other medium and is retrievable in both physical and electronic form.
(t) “Remote presentation” means transmission to the notary public through audio-video audiovideo communication of an image of a government-issued identification, which complies with paragraph (3) or (4) of subdivision (b) of Section 1185 of the Civil Code that is of sufficient quality to enable the notary public to identify the individual seeking the notary public’s services. Remote presentation shall conform to the standards of this article and any rules or regulations adopted by the Secretary of State pursuant to this article.
(u) “United States” 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.
8231.2.
This article applies only to online notarizations. To the extent that a provision of this article conflicts with Article 1 (commencing with Section 8200), this article controls with respect to an online notarization.8231.3.
(a) The Secretary of State shall adopt rules and regulations necessary to implement this article by January 1, 2028. The rules and regulations shall set and maintain standards for online notarizations and notaries public authorized to perform online notarization, including, but not limited to, all of the following:(1) Audio-video Audiovideo communication, including ensuring that principals with disabilities are accommodated by online notarization platforms and online notaries public in a manner consistent
with applicable laws.
(2) Credential analysis.
(3) Electronic journals, including their form and content.
(4) Electronic seals.
(5) Identity proofing, which shall be performed at least at Identity Assurance Level 2, as established in NIST Special Publication 800-63A, dated June 2017, promulgated by the National Institutes of Standards and Technology, or any successor publication. If this standard cannot be met due to applicable state or federal laws, such as California law governing the disclosure of information regarding driver’s licenses or other identification cards, then the Secretary of State shall adopt the most rigorous standard for identity proofing
that also conforms to those laws.
(6) Location verification, which, at a minimum, shall include the following:
(A) A prompt to ask the principal if they are located in California at the time of the online notarial act.
(B) If the online notarization platform hosts both notaries licensed within this state and licensed by other states, functionality to ensure that a principal who identifies themselves as located in California under subparagraph (A) is directed, for the performance of the online notarial act, only to a notary registered with the Secretary of State under this article.
(C) The principal’s recorded response shall be stored with other records of the
notarial transaction and shall establish conclusively whether the principal was located within or without the state at the time of the transaction, absent evidence of a third party’s fraud, duress, or coercion.
(7) Online notarization systems.
(8) Depositories, including standards for security measures and storage capacity.
(9) Registration with the Secretary of State as a notary public authorized to perform online notarizations, a depository, and an online notarization platform.
(10) Remote presentation.
(11) Retention and storage of records of online notarial acts on certified online
notarization platforms and in certified depositories. The Secretary of State shall consult with the Judicial Council of California and the Department of Justice regarding the required format for these records.
(12) Security and encryption.
(b) The Secretary of State may confer with other state entities, departments, or agencies on matters relating to equipment, security, and technological aspects of online notarization standards.
(c) The Secretary of State, in developing the rules and regulations required by this section, may consider the views of other state entities, departments, or agencies, and members of the public.
(d) An online notarization platform
shall not be authorized for use in California and an online notary public shall not provide online notarization for any principal located in California prior to the adoption of rules by the Secretary of State pursuant to this section.
8231.4.
(a) (1) An applicant during the commissioning of an applicant for appointment as a notary public, may apply for registration with the Secretary of State to perform online notarization by complying with the requirements of Article 1 (commencing with Section 8200) and this section.(2) A notary public who holds a California notary public commission but is not yet registered with the Secretary of State to perform remote online notarizations may obtain registration prior to the expiration of their term by resigning their current commission in the manner prescribed by the
Secretary of State State, paying any fee required pursuant to subdivision (d), and meeting the requirements of Article 1 (commencing with Section 8200) and this section.
(b) (1) In order to register with the Secretary of State to perform remote online notarizations, an applicant, during the commissioning of an applicant for appointment as a notary public, shall have satisfactorily completed the six-hour course of study approved by the Secretary of State as required by paragraph (3) of subdivision (a) of Section 8201 and satisfactorily completed a written examination as required by paragraph (4) of subdivision (a) of Section 8201.
(2) Any application for reappointment of a commissioned notary public that requests registration to perform remote online notarizations pursuant to paragraph (2) of subdivision (a) shall require the six-hour course of study approved by the Secretary of State as required by paragraph (3) of subdivision (a) of Section 8201 in place of the three-hour refresher course of study authorized by paragraph (2) of subdivision (b) of Section 8201 as required when registration to perform remote online notarization is not requested.
(c) A notary public shall be issued only one commission number for each term, which shall have the same meaning as in Section 8204.
(d) The Secretary of State may charge an additional fee for an application
for registration submitted pursuant to this section in an amount necessary to cover the additional costs of administering this article.
(e) If the notary public ceases to use an online notarization platform or depository, neither the notary public nor the notarization platform or depository is absolved of their respective duties under this article, or the rules and regulations adopted pursuant to this article, with respect to the security, preservation, and production of records generated using the online notarization platform or depository, including the electronic journal required by Section 8231.6 and the recording required by Section 8231.7.
8231.5.
(a) A notary public authorized to perform remote online notarization is a notary public for purposes of Article 1 (commencing with Section 8200) and is subject to Article 1 (commencing with Section 8200) to the same extent as a notary public appointed and commissioned under Article 1 (commencing with Section 8200), unless otherwise expressly provided in this article.(b) A notary public physically located in this state may perform an online notarization that meets the requirements of this article and the rules and regulations adopted by the Secretary of State pursuant to this article for a principal who is located in any of the following places:
(1) Within this state.
(2) Outside this state but within the United States, if the act is not prohibited in the jurisdiction in which the principal is physically located at the time of the act.
(3) Outside the United States if the act is not prohibited in the jurisdiction in which the principal is physically located at the time of the act.
(c) (1) A requirement that a principal appear before or in the presence of the notary public may be satisfied by means of audio-video audiovideo
communication with a notary public authorized to perform remote online notarizations that meets the requirements of this article and the rules and regulations adopted by the Secretary of State pursuant to this article.
(2) Audio-video Audiovideo communications with a notary public meets the requirements of this article if it consists of continuous, synchronous audio and video feeds with adequate clarity such that all participants can be clearly seen and understood at all times. The notary public shall terminate the session if, in the notary public’s judgment, the adequacy of communications is insufficient for all participants to be clearly seen and
understood at all times.
(3) The online notarization platform shall create the recording required by Section 8231.7.
(d) A requirement under Section 8205 that a certificate of acknowledgment or proof, or a deposition, affidavit, oath, or affirmation, or certification of a copy, be signed in the notary public’s own handwriting, is satisfied by the notary public’s electronic signature if the notarial act is performed by online notarization.
8231.6.
(a) (1) A notary public shall keep one secure electronic journal to record each online notarial act performed by the notary public pursuant to this article.(2) If a notary public utilizes more than one online notarization platform, the notary public may keep one secure electronic journal per platform. The notary public shall comply with all of the relevant requirements with respect to each electronic journal.
(b) The notary public authorized to perform online notarizations shall include in an electronic journal all of the following:
(1) The date, time, and type of each official online notarial act. The time entered shall be the time at the notary’s location at the time of the online notarial act.
(2) The physical location of the principal as represented to the notary public by the principal at the time of the online notarial act and the physical location of the notary public at the time of the online notarial act.
(3) The character of every electronic record sworn to, affirmed, acknowledged, or proved before the notary public.
(4) The electronic signature of each person whose electronic signature is being notarized.
(5) Satisfactory evidence of identity of the principal pursuant to
subdivision (a) of Section 8231.9, which shall be in the form of a notation of the type of identification credential provided to the notary public for credential analysis, a record of the identity proofing, and other information as may be required by the Secretary of State.
(6) A statement that an audio-video audiovideo recording of the online notarial act was made pursuant to Section 8231.7.
(7) The fee, if any, charged for the online notarization.
(8) The name of the online notarization platform used.
(c) The requirements of subparagraph (G) of paragraph (2) of subdivision (a) of Section 8206 do not apply to an online notarial act.
(d) (1) An electronic journal shall be maintained on an encrypted storage device or encrypted online media that is accessed by the notary public with secure multifactor means of authentication. A backup of the electronic journal shall be made immediately after new information is added to the electronic journal. The notary public shall not allow another person to access or use a notary public’s electronic journal. The notary public shall take all reasonable steps to protect the journal from unauthorized access or use.
(2) An online notarization platform may retain custody of the electronic journal on behalf of the
notary public if it expressly provides custodial services as part of the platform and provided that information to the Secretary of State in its application under Section 8231.15. If the online notarization platform does not provide custodial services for a notary public, the online notarization platform does not have a duty to retain the electronic journal or any entries after download by the notary public and does not violate this article by failure to do so.
(3) A notary public utilizing an online notarization platform that does not provide custodial services shall save a copy of the electronic journal to a depository certified by the Secretary of State under Section 8231.15 at least once per calendar month.
(e) A notary public shall immediately notify the Secretary of State,
using a notification process designated by the Secretary of State, and all appropriate law enforcement agencies of the use by another person, loss, compromise, theft, vandalism, corruption, or breach of the notary public’s electronic journal. The notification to the Secretary of State shall include the period of the affected journal entries, a description of the affected data, a copy of any pertinent police report, and any other information required by the Secretary of State.
(f) (1) A notary public authorized to perform online notarizations shall maintain each entry for an online notarization in an electronic journal for so long as the notary public is registered with the Secretary of State to perform remote online notarizations.
(2) A notary public who resigns, is
disqualified, is removed from office, or allows their registration as a notary public authorized to perform remote online notarizations to expire without obtaining reappointment within 30 days shall, pursuant to Section 8209, within 30 days of the applicable event, deliver their electronic journal to the Secretary of State through their online notarization platform or depository.
(3) If the notary public refuses or willfully fails to deliver their electronic journal pursuant to paragraph (2), the notary public is guilty of a misdemeanor and shall be personally liable for damages to any person injured by that action or inaction.
(4) In the case of the death of a notary public authorized to perform online notarizations, the personal representative of the deceased shall promptly
notify the Secretary of State of the death of the notary public and shall deliver their electronic journal to the Secretary of State through the online notarization platform or depository used by the notary public.
(g) A notary public shall provide to a member of the public, pursuant to subdivision (c) of Section 8206 and to Section 8206.5, a copy of the entry in the notary public’s electronic journal corresponding to the requested transaction in paper format or in an electronic format in accordance with rules and regulations adopted by the Secretary of State pursuant to this article.
(h) A notary public shall provide, and an online notarization platform and depository shall enable, access to the notary public’s electronic journal:
(1) To a peace officer pursuant to subdivision (d) of Section 8206 or to Section 8228.
(2) Upon receipt of a subpoena duces tecum or a court order pursuant to subdivision (e) of Section 8206.
(3) To the Secretary of State pursuant to Section 8228.
(i) A notary public authorized to perform remote online notarizations may charge a reasonable fee, as determined by a rule adopted by the Secretary of State pursuant to this article, to recover the cost to the notary of providing a copy of an entry in an electronic journal.
8231.7.
(a) A notary public shall create a recording of the(b) (1) The notary public shall retain the recording of the audio-video audiovideo
communication in a computer or other electronic storage device that protects the recording against unauthorized access by password or cryptographic process. The recording shall be created in an industry-standard audio-video audiovideo file format and shall not include images of any electronic record that was the subject of the remote online notarization. The notary public shall utilize an online notarization platform or depository approved by the Secretary of State for purposes of this section.
(2) An online notarization platform may retain custody of the recording of the audio-video
audiovideo communication on behalf of the notary public if it expressly provides custodial services and provided that information to the Secretary of State in its application under Section 8231.15. If the online notarization platform does not provide custodial services for a notary public, the online notarization platform does not have a duty to retain records of audio-video audiovideo communications after they have been downloaded by the notary public and does not violate this article by failing to retain records after they are so downloaded.
(3) A notary public who utilizes a platform that does not provide custodial services
shall upload copies of all records of audio-video audiovideo communications or a depository certified by the Secretary of State within five days of the creation of the record. The notary public may delete their local copy of the record upon confirming that the copy was uploaded to the depository.
(c) (1) A notary public shall retain the recording of the audio-video audiovideo communication of each online notarial act in either of the following:
(A) An online notarization platform that provides custodial services to the notary public and provided that information to the Secretary of State in its application under Section 8231.15.
(B) A depository certified by the Secretary of State under Section 8231.15.
(2) If a notary public resigns, is disqualified, is removed from office, or allows their registration as a notary public authorized to perform online notarizations to expire without reappointment,
within 30 days, the notary public shall transmit all recordings of audio-video audiovideo communications of notarial acts to the Secretary of State pursuant to Section 8231.5.
8231.8.
(a) A notary public shall take reasonable steps to ensure that any registered device used to create an electronic signature or electronic seal is current and has not been revoked or terminated by the device’s issuing or registering authority.(b) Notwithstanding Section 8207, when a notary public’s electronic signature is required to be accompanied by a notary public’s electronic seal, that requirement is satisfied if the electronic seal of the notary public contains all of the following:
(1) The name of the notary public.
(2) The Great Seal of the
State of California.
(3) The words “Remote Online Notarization.”
(4) The name of the county where the bond and oath of office of the notary public are filed. The oath shall be filed pursuant to Section 8213.
(5) The date the notary public’s commission expires.
(6) The notary public’s commission number.
(7) The sequential identification number assigned to the manufacturer or vendor of the online notary public’s electronic seal.
(8) The seal may be circular not over two inches in diameter or may be rectangular not more than one inch in width
by two and one-half inches in length.
(c) A manufacturer or vendor of the notary public’s electronic seal shall apply to the Secretary of State to be assigned an identification number, through an application process prescribed by the Secretary of State. The electronic seal shall meet the requirements of this article and any rules or regulations adopted by the Secretary of State pursuant to this article.
(d) (1) A notary public authorized to perform online notarizations shall keep the notary public’s electronic signature and electronic seal in a secure encrypted manner under the direct and exclusive control of the notary public. For purposes of satisfying the requirements of this subdivision, the notary public’s electronic signature and electronic seal may be
kept on a storage device or online media that is accessed by the notary public with a secure means of multifactor authentication and protected by, at minimum, security requirements as set forth by the Secretary of State. The notary public shall not allow another person to access or use the notary public’s electronic signature or electronic seal. The notary public shall take all reasonable steps to protect the notary public’s electronic signature and electronic seal from unauthorized access or use.
(2) A notary public shall provide the Secretary of State with a copy of the notary public’s electronic signature and electronic seal as prescribed by the Secretary of State.
(e) A notary public shall attach or logically associate the notary public’s electronic signature and seal to an
electronic online notarial certificate of an electronic record in a manner that is capable of independent verification and makes evident any tampering or subsequent change or modification to the electronic record that has occurred.
(f) A notary public shall immediately notify the Secretary of State, using a notification process designated by the Secretary of State, and all appropriate law enforcement agencies of the use by another person, loss, compromise, theft, vandalism, corruption, or breach of the notary public’s electronic signature or electronic seal.
8231.9.
(a) In performing an online notarization, a notary public authorized to perform online notarizations shall verify the identity of a principal by satisfactory evidence that meets the requirements of this subdivision and the rules adopted by the Secretary of State.(1) For purposes of this subdivision, “satisfactory evidence” means the absence of information, evidence, or other circumstances that would lead a reasonable notary public to believe that the principal is not the individual that the principal claims to be and all of the following:
(A) Remote presentation of a credential by the principal.
(B) Credential analysis of the credential described in subparagraph (A).
(C) Identity proofing of the principal described in subparagraph (A).
(2) For purposes of this subdivision, “satisfactory evidence” does not include the definition of “satisfactory evidence” set forth in Section 1185 of the Civil Code.
(3) Any record of a credential transmitted pursuant to this subdivision shall be retained no longer than necessary to both (A) verify the identity of the principal and (B) make an entry in an electronic journal pursuant to paragraph (5) of subdivision (b) of Section 8231.6.
(b) The notary
public and the online notarization platform shall use industry-standard encryption in all audio-video audiovideo communication and shall take reasonable steps to ensure that the audio-video audiovideo communication used in an online notarization is secure from unauthorized interception.
(c) (1) The electronic online notarial certificate shall include a notation that the notarization is an online notarization, including a legible notice at the top of the certificate of acknowledgment in an
enclosed box stating, “A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached and not the truthfulness, accuracy, or validity of that document.” An electronic online notarial certificate shall be in substantially the following form:
(A) For an acknowledgment:
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. |
State of California
County of __________________________
Online Notarial Act
On ________ ______, 20____, before me, __________________________________(here insert name and title of officer), personally appeared _______________________________ by means of audio-video
audiovideo communication, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to within the electronic record and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) and that by his/her/their signature(s) on the electronic
record the person(s), or the entity upon behalf of which the person(s) acted, executed the electronic record.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
| Electronic Seal Electronic Signature |
(B) For a jurat:
| A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. |
State of California
County of __________________________
Online Notarial Act
Subscribed and sworn to (or affirmed) before me this ____ day of _____, 20__, by ____________________________________, proved to me on the basis of satisfactory evidence to be the person(s) who appeared before me by means of audio-video audiovideo communication.
| Electronic Seal Electronic Signature |
(2) The notice shown in subparagraphs (A) and (B) is for illustrative purposes and the format may be modified provided that the requirements of paragraph (1) are met.
(d) A notary public may certify that a tangible copy of an electronic record that is the subject of an online notarization is an accurate representation of the electronic record. The certification shall be in the following form and signed by the notary public:
State of California
County of
________________________
Certification of Authenticity
The attached document entitled __________ (document title, if applicable), dated _________ (document date, if applicable), and containing ___ pages is an accurate copy of an electronic record printed by me or under my supervision. At the time of printing, no security features present on the electronic record indicated any changes or errors in an electronic signature or other information in the electronic record after the completion of the electronic record’s creation, execution, or notarization.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
Dated: _______________
WITNESS
my hand and official seal.
Signature___________
Seal____________
(e) A county recorder shall accept for recording a printed copy of an electronic record of an online notarial act bearing electronic signatures and containing a certificate of authenticity in the form specified in subdivision (d) as satisfying any requirement under the laws of this state that a document accepted for recording be an original or bear an original signature, if the online notary public executing the certificate certifies that the printed copy is an accurate copy of the electronic record and, pursuant to Section 27279, the document meets all other statutory requirements that prescribe except the requirement of original signatures under Section 27201. For the purposes of this
section, “electronic record” and “electronic signature” have the same meaning as in Section 1633.2 of the Civil Code.
(f) The certificate for a copy certification of a power of attorney performed by means of online notarization shall include the representations required under subdivision (c) of Section 4307 of the Probate Code.
8231.10.
The Secretary of State shall establish by rule the maximum fee that may be charged by a notary public registered to perform online notarizations and by an online notary platform for an online notarial act.8231.11.
Every person appointed a notary public authorized to perform online notarizations shall execute an official bond in the sum of fifteen thousand dollars ($15,000) in addition to the bond required by Section 8212. The bond shall be in the form of a bond executed by an admitted surety insurer and not a deposit in lieu of bond. The bond shall be filed pursuant to Section 8213.8231.12.
A notary public who resigns, is disqualified or removed from office, or allows the notary public’s registration to perform remote online notarization to expire without obtaining a reappointment, within 30 days, pursuant to Section 8209, shall destroy the coding, disk, certificate, card, software, or password that enables electronic affixation of the online notary public’s official electronic signature or seal. The online notary public shall certify compliance with this subdivision to the Secretary of State in the manner prescribed by rule by the Secretary of State.8231.13.
(a) The Secretary of State may approve registrations of notaries public authorized to perform online notarizations for the military and naval reservations of the Army, Navy, Coast Guard, Air Force, and Marine Corps of the United States that are located in the State of California. Such registrants shall meet the requirements of Article 1 (commencing with Section 8200) in addition to the requirements of this article.(b) Notwithstanding Section 8203.2, a notary public authorized to perform online notarizations approved for registration under subdivision (a) may perform notarial acts for principals who are stationed at the reservation for which that notary public was approved,
regardless of whether the principal was physically located on the reservation at the time of the notarial act.
(c) Notwithstanding Section 8203.5, the electronic online notarial certificate by a notary public authorized to perform online notarizations shall contain the name of the reservation for which the online notary public was approved and where the principal for which the online notarization was performed was stationed at the time of the online notarial act. A notation in the following form shall be sufficient for purposes of this subdivision:
State of California Online Notarial Act
Military Reservation of ________
8231.14.
A person who, without authorization, knowingly obtains, conceals, damages, or destroys the certificate, disk, coding, card, program, software, or hardware enabling a notary public to affix an official electronic signature or electronic seal is guilty of a misdemeanor.8231.15.
(a) A person or entity shall apply for certification with the Secretary of State to be an online notarization platform or depository as prescribed by the Secretary of State.(b) Any entity required to obtain a certificate of qualification from the Secretary of State in order to transact business in California shall do so before applying for registration with the Secretary of State to be an online notarization platform or depository.
(c) An online notarization platform or depository shall provide security for claims against the online notarization platform or depository or the platform’s or depository’s
representatives, or employees based upon acts, errors, or omissions arising out of the business of the remote notarization platform or depository through either one or an aggregate of both of the following:
(1) A policy or policies of insurance against liability imposed on or against the online notarization platform or depository by law for damages arising out of claims in an amount for each claim of at least two hundred fifty thousand dollars ($250,000).
(2) In trust or bank escrow, cash, bank certificates of deposit, United States Treasury obligations, bank letters of credit, or bonds of insurance companies as security for payment of liabilities imposed by law for damages arising out of all claims in an amount of at least two hundred fifty thousand dollars ($250,000).
(d) The Secretary of State shall develop an application for certification to be submitted by an applicant. The application shall include, but not be limited to, all of the following:
(1) The name and complete business or residence street address of an agent upon whom process may be served within this state if this information is not already on file with the Secretary of State.
(2) A statement signed under penalty of perjury by an officer of the applicant authorized to enter into binding agreements on behalf of the applicant that:
(A) The applicant shall comply with any provisions of this article and any rules or regulations adopted by the Secretary of State pursuant
to this article that apply to online notarization platforms.
(B) The applicant shall comply with the lawful properly served process.
(3) For applications to be an online notarization platform, whether the online notarization platform provides custodial services for the notary public.
(e) The Secretary of State may charge a fee for an application for registration submitted pursuant to this section in an amount necessary to administer this article.
(f) The Secretary of State shall adopt procedures to verify that an online notarization platform or depository is capable of complying with this article and any rules or regulations adopted by the Secretary of State
pursuant to this article. If the Secretary of State determines that an online notarization platform or depository is not capable of complying with this article or any rule or regulation adopted by the Secretary of State pursuant to this article, the Secretary of State shall deny or terminate the registration.
(g) Only an online notarization platform that has obtained certification from the Secretary of State may provide an online notarization system for a notary public that performs online notarizations while commissioned in California.
(h) An online notarization platform shall take all reasonable steps to ensure that a notary public for whom it provides an online notarization system has the knowledge to use the system to perform online notarial acts in compliance with this
article and any rules or regulations adopted by the Secretary of State pursuant to this article.
(i) (1) An online notarization platform or depository that provides custodial services for a notary public may not delete an online journal entry or the record of an audio-video audiovideo communication of an online notarization until the notary public resigns, is disqualified, is removed from office, or allows their registration as a notary public authorized to perform remote notarizations to expire without obtaining reappointment and the notary public has transmitted the journal entry or record of an
audio-video audiovideo communication to the Secretary of State.
(2) An online notarization platform that does not provide custodial services for a notary public may not delete an online journal entry or record of an audio-video audiovideo communication of an online notarial act until the notary public has downloaded the entry or record.
(3) The Secretary of State may adopt rules and regulations for the transmission of data under this subdivision, including timelines and schedules for the transmission of data from an
online notarization platform or depository to the Secretary of State and alternatives for an online notarization platform under paragraph (2) when a notary fails to download a record after multiple reminders from the platform.
(j) An online notarization platform or depository that ceases to provide an online notarization system or depository for use within California, goes out of business, ceases operations, or is acquired by or merges with another entity that is not registered with the Secretary of State as an online notarization platform or depository shall do both of the following:
(1) At least 30 calendar days before this event, notify each notary public that has utilized the online notarization platform or depository of the event and enable the notary public to transfer all records
of online notarizations performed by the online notary public, or all records stored by the depository, including, but not limited to, any electronic journals or audio-video audiovideo recordings, to another online notarization platform, to the notary public, to a certified depository, or to the Secretary of State at no cost to the notary public.
(2) Upon full compliance with paragraph (1), thereafter promptly delete all records of online notarizations, including any electronic journals.
(k) (1) A notary public who exercises reasonable care using an online notarization platform or depository
shall not be liable for any damages resulting from the platform’s or depository’s failure to comply with the requirements of this article or any rules adopted by the Secretary of State pursuant to this article. Any provision in a contract or agreement between an online notary public and an online notarization platform that attempts to waive this immunity shall be null and void.
(2) A notary public who utilizes an online notarization platform that does not provide custodial services does not exercise reasonable care if they fail to download a journal entry or record of an audio-video audiovideo communication of a notarization or transmit those records to a
certified depository in a timely manner.
8231.16.
(a) An online notarization platform or depository shall not have access to a notary public’s electronic signature or electronic seal.(b) An online notarization platform or depository shall not access, use, share, sell, disclose, produce, provide, release, transfer, disseminate, or otherwise communicate the contents of the notary public’s electronic journal absent a court order.
(c) An online notarization platform or depository shall not access, use, share, sell, disclose, produce, provide, release, transfer, disseminate, or otherwise communicate the contents of a document notarized by a notary public
absent express written request from the principal or a court order.
(d) An online notarization platform or depository shall not access, use, share, sell, disclose, produce, provide, release, transfer, disseminate, or otherwise communicate the contents of a record of an online notarial act absent express written request from the principal or a court order.
(e) An online notarization platform or depository shall not access, use, share, sell, disclose, produce, provide, release, transfer, disseminate, or otherwise communicate the personal information of a principal absent express written request from the principal or a court order.
(f) Notwithstanding subdivisions (b), (c), and (d), an online notarization platform or
depository may access, use, share, disclose, produce, provide, release, transfer, disseminate, or otherwise communicate the contents of a document or record of an online
notarial act to the extent necessary to do either of the following:
(1) Facilitate the transaction of which the document notarized by a notary public or the record of an online notarial act is a part.
(2) Comply with the requirements of Article 1 (commencing with Section 8200), this article, or rules and regulations adopted by the Secretary of State pursuant to this article.
(g) An online notarization platform or depository shall immediately notify the Secretary of State, using a notification process designated by the Secretary of State, all appropriate law enforcement agencies, any affected online notaries public, and any affected principals, of the use by another person, loss, compromise, theft, vandalism,
corruption, or breach of any of the following:
(1) A notary public’s electronic signature or electronic seal.
(2) A notary public’s electronic journal.
(3) Any records evidencing online notarial acts.
8231.17.
(a) The Secretary of State shall maintain a secure, indexed repository of records of online notarizations, including electronic journal entries and the recordings required by subdivision (b) of Section 8231.6 and subdivision (a) of Section 8231.7. The repository shall not be connected to the public internet.(b) The Secretary of State shall establish a protocol for an online notarization platform that retains custody of records of an online notarization on behalf of the notary public or a depository to transfer records of online notarizations to the Secretary of State at least once each calendar quarter.
(c) The Secretary of State shall produce a record of an online notarization only in response to a court order. That court order, in turn, shall be issued by a court only upon a showing that an accurate copy cannot be obtained (1) from the notary public that performed the online notarization, (2) from the online notarization platform that enabled the record to be made, or (3) from the depository utilized by the notary public. The failure of an online notarization platform or depository to produce a record made before the date on which deletion is provided for under subdivision (h) of Section 8231.15 shall be considered by the Secretary of State in deciding whether to maintain the certification of that platform or depository.
(d) The Secretary of State may charge a reasonable fee, as determined by a rule adopted by the Secretary of
State pursuant to this article, to recover the cost of providing a copy of a record to a requesting party.
(e) Records of online notarizations maintained by the Secretary of State pursuant to this section shall be exempt from the requirements of the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1).
(f) The Secretary of State may destroy an electronic journal pursuant to subdivision (f) of Section 8231.6, or a recording required by subdivision (b) of Section 8231.6, at either (1) the latest of 20 years following the date the record was transmitted to the Secretary of State, if no request for a record of an online notarization contained or referenced in that journal or recording has been made, or 10 years after the latest request
for a record of an online notarization contained or referenced in that journal or recording, or (2) 10 years following the date of the transmission, if authorized by an order of the superior court upon a finding of good cause.
8231.18.
(a) The Secretary of State may refuse to appoint any person as a notary public or may revoke or suspend the commission of any online notary public for a violation of this article.(b) The Secretary of State may refuse to certify any online notarization platform or depository or may revoke or suspend the certification of any online notarization platform or depository for a violation of this article.
8231.19.
(a) For any violation of any provision of this article, an online notarization platform or depository is liable in civil action to the persons injured thereby for any of the following:(1) The greater of the following:
(A) Any actual damages sustained by that person as a result of the violation.
(B) Statutory damages of two hundred fifty dollars ($250) per violation.
(2) Injunctive or declaratory relief. Such relief is presumed to accrue to the benefit of the public.
(3) Any other relief that the court deems proper.
(b) In the case of any successful cause of action under this section, the court shall award costs of the action, together with reasonable attorney’s fees, as determined by the court.
(c) An action under subdivision (a) shall be brought no later than four years from the date the plaintiff had actual knowledge of the violation.
(d) (1) The Attorney General, a city attorney, including the city attorney of a city and county, a county counsel, or a district attorney may bring a civil action in the name of the people of the State of California against an online notarization platform or depository for
any violation of this article and recover or obtain any of the remedies available under subdivision (a).
(2) Notwithstanding subdivision (c), an action shall be brought under this subdivision no later than three years from the date the online notarization platform or depository notifies the Secretary of State and the Attorney General of the violation that is the basis of the action.
(e) For purposes of this section, each notarial transaction affected shall be treated as a separate violation.
(f) If a violation of this article gives rise to liability for statutory damages under paragraph (1) of subdivision (a) as well as under one or more other provisions of the California Code, the prevailing plaintiff shall elect under which
statute damages shall be awarded. This form of remedy is not cumulative.
8231.20.
Any waiver of the provisions of this article is contrary to public policy and is void and unenforceable.8231.21.
The provisions of this article are severable. If any provision of this article or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.SEC. 10.
No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.SEC. 11.
The Legislature finds and declares that SectionThe interest protected by this limitation is the privacy of Californians, whose highly sensitive personal information is held by the Secretary of State, and records of online notarizations will contain highly sensitive personal information, including, but not limited to, medical and financial information. This act protects this interest by excluding records of online notarizations maintained by the Secretary of State from the provisions of the California Public Records Act.
