CA Senate Bill 696

Legislation

State: California
Signed: September 30, 2023

Effective: January 01, 2024
Chapter: 291

Summary

California becomes the fourth from last state to enact permanent remote notarization statutes, but the implementation date may be as far off as January 1, 2030.

Affects
Adds Section 1181.1 to the Civil Code and Sections 8231.1-8231.18 and 8232, 8231.1, 8231.2, 8232.3, and 8232.4 to the Government Code, and amends Sections 1182 and 1183 of the Civil Code, and Sections 8207.4 and 8214.1 of the Government Code.

Changes

Definitions

For purposes of Government Code Sections 8231-8231.18 (Online Notarization Act), defines “audio-video communication,” “audio-video recording,” “credential,” “credential analysis,” “depository,” “electronic,” “electronic journal,” “electronic online notarial certificate,” “electronic record,” “electronic seal,” “electronic signature,” “encrypt” or “encrypted,” “express written request,” “identity proofing,” “notarial act,” “notary public’s electronic signature,” “open format,” “online notarization” and “online notarial act,” “online notarization platform,” “online notarization system,” “principal,” “record,” “records of online notarial acts,” “remote presentation,” and “United States.”
For purposes of Government Code Section 8231.18, defines “audio-video communication,” “audio-video recording,” “business,” “electronic journal,” “encrypt” or “encrypted,” “notarial act,” “notarial officer,” “notary public,” “open format,” “principal,” “record,” “remote online notarial act or “remote online notarization,” and “state.”
For purposes of Government Code Sections 8232, 8231.1, 8231.2, 8232.3, and 8232.4 (recognition of notarial acts), defines “foreign state,” “notarial act,” “notarial officer,” “notary public,” “record,” and “state.”

Legal Validity of Online Notarial Acts

Clarifies that a requirement under any California law that a principal appear before or in the presence of the Notary is satisfied by appearing by means of audio-video communication before a Notary authorized to perform online notarizations in compliance with the requirements of Government Code Sections 8231-8231.18 and the rules or regulations adopted by the Secretary of State pursuant to these sections.
Clarifies that a requirement under Government Code 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’s own handwriting, is satisfied by the Notary’s electronic signature if the notarial act is performed by online notarization.

Registration

Prohibits a California Notary from performing online notarizations for any principal, and an online notarization platform from being authorized for use by California Notaries, until the implementation date (see “Effective and Implementation Dates,” below).
Provides that an applicant for a Notary commission (who is not currently a Notary) may register to perform online notarizations by fulfilling the Notary commission requirements of Section 8200 et seq., including taking the 6-hour course of study and passing the examination.
Provides that an existing Notary who seeks to register to perform online notarizations must resign their current commission by fulfilling the commission renewal requirements of Sections 8200-8230 and taking the 3-hour refresher course.
Clarifies that the resigning Notary’s current commission remains in full force and effect until the effective date of the new commission.
Requires both applicants and Notaries Public who seek to register to perform online notarizations to complete a 2-hour course of study approved by the Secretary of State concerning the functions and duties of a Notary authorized to perform online notarizations and pass an examination that is based on the booklet of laws of California related to Notaries distributed by the Secretary of State.
Clarifies that the courses of study meeting the online notarization registration requirement must be approved by the Secretary of State pursuant to Government Code Section 8201.
Authorizes the Secretary of State to 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 California, and that these registrants must meet the requirements of Government Code Sections 8200-8230 in addition to the requirements of Government Code Sections 8231-8231.18.
Clarifies that a Notary authorized to perform online notarizations approved for registration 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 California may perform notarial acts for principals who are stationed at the reservation for which that Notary was approved, regardless of whether the principal was physically located on the reservation at the time of the notarial act.
Authorizes the Secretary of State to refuse to appoint any person as a Notary or revoke or suspend the commission of any Notary for a violation of Government Code Sections 8231-8231.18.
Clarifies that a Notary shall be issued only one commission number for each term, which has the same meaning as Government Code Section 8204.
Authorizes the Secretary of State to charge an additional fee for registration to perform online notarizations.
Clarifies that if a Notary ceases to use an online notarization platform or depository, neither the Notary nor the online notarization platform or depository is absolved of their respective duties under Government Code Sections 8231-8231.18 or the rules and regulations adopted pursuant to these sections, with respect to the security, preservation, and production of records of online notarial acts generated using the online notarization system or the online notarization platform or stored by the depository, including the electronic journal required by Section 8231.5 and the audio-video recording required by Section 8231.6.
Requires a Notary who is registered to perform online notarial acts to execute an official bond in the amount of $25,000 in lieu of the $15,000 bond required by Government Code Section 8212.
Clarifies that the amount of a surety’s liability under the $25,000 bond for online notarial acts is limited to $15,000 for notarial acts arising under Government Code Sections 8200-8230 and $25,000 for online notarial acts arising under Government Code Sections 8231-8231.18, and further clarifies that under no circumstances will the surety’s liability exceed the aggregate amount of $25,000.
Requires the $25,000 online notarization bond to be filed with the county clerk within which the Notary maintains a principal place of business pursuant to Government Code Section 8213.
Provides that if a Notary authorized to perform online notarization resigns, is disqualified or removed from office, or allows the Notary’s registration to perform online notarizations to expire without obtaining reappointment, within 30 days, pursuant to Government Code Section 8209, the Notary must take all necessary measures to disable the electronic affixation of the Notary’s electronic signature or seal by the Notary or another person including, but not limited to, notifying the online notarization platform providing the online notarization system utilized by the Notary that their electronic signature and seal should be disabled, as well as adhering to any other requirements set forth in regulations adopted by the Secretary of State.
Provides that an online notarization platform that is notified by a Notary who resigns, is disqualified, or removed from office must disable, destroy, or otherwise prevent the use of the Notary’s electronic signature and electronic seal.

Authorization to Perform Online Notarial Acts

Authorizes a Notary authorized to perform online notarizations provided the Notary is physically located in California and all requirements of the Online Notarization Act and rules and regulations adopted to implement the Act are followed.
Authorizes a Notary to perform online notarizations for a principal who is located (a) within California; (b) outside California but within the United States; and (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.

Standards for Audio-Video Communication

Requires the audio-video communication with a Notary who performs online notarizations to consist of continuous, synchronous audio and video feeds with adequate clarity such that all participants can be clearly seen and understood at all times.
Requires a Notary to terminate the online notarization session if, in the Notary’s judgment, the adequacy of communications is insufficient for all participants to be clearly seen and understood at all times.
Requires a Notary to 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.

Identification

Provides that a Notary must verify the identity of a principal for an online notarization by satisfactory evidence that meets the requirements of Government Code Section 8231.8(a) and the rules and regulations adopted by the Secretary of State.
Defines, for the purposes of an online notarial act, “satisfactory evidence” to mean the absence of information, evidence, or other circumstances that would lead a reasonable Notary 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; (c) Credential analysis of the credential presented; and (c) Identity proofing of the principal.
Clarifies that for the purposes of an online notarial act, “satisfactory evidence” does not include the definition of “satisfactory evidence” set forth in Civil Code Section 1185 for a traditional notarial act.
Provides that any record of a credential transmitted to verify the identity of a principal for an online notarization must be retained no longer than necessary to verify the identity of the principal and for the Notary to make an entry in an electronic journal for the online notarial act.

Electronic Online Notarial Certificate

Requires an electronic online notarial certificate to include a notation that the notarization is an online notarization.
Requires an electronic online notarial certificate for an acknowledgment and jurat to be in the form specified in Government Code Section 8231.8(c).
Clarifies that an electronic online notarial certificate by a Notary 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 California must contain the name of the reservation for which the Notary was approved and where the principal for which the online notarization was performed was stationed at the time of the online notarial act, and further clarifies that a notation in the following form is sufficient: State of California Online Notarial Act, Military Reservation of ________.

Electronic Signature and Seal

Provides that when a Notary’s electronic signature is required to be accompanied by a Notary’s electronic seal, that requirement is satisfied if the electronic seal of the Notary contains all of the following: (a) The name of the Notary; (b) The California Great Seal; (c) The words “Notary Public”; (d) The name of the county where the bond and oath of office of the Notary are filed; (e) The date the Notary’s commission expires; (f) The Notary’s commission number; and (g) The sequential identification number assigned to the manufacturer or vendor of the Notary’s electronic seal.
Provides that the electronic seal may be circular not over 2 inches in diameter or rectangular not more than one inch in width by 2 and ½ inches in length.
Requires a manufacturer or vendor of the Notary’s electronic seal to apply to the Secretary of State to be assigned an identification number through an application process prescribed by the Secretary of State.
Clarifies that the electronic seal produced by a manufacturer or vendor must meet the requirements of Government Code Sections 8231-8231.18 and any rules or regulations adopted by the Secretary of State pursuant to these sections.
Requires a Notary authorized to perform online notarizations to keep the Notary’s electronic signature and electronic seal in a secure encrypted manner under the direct and exclusive control of the Notary.
For purposes of satisfying the requirement to keep to keep the Notary’s electronic signature and electronic seal in a secure encrypted manner under the direct and exclusive control of the Notary, provides the electronic signature and electronic seal may be kept on a storage device or online media that is accessed by the Notary with a secure means of multifactor authentication and protected by, at minimum, security requirements as set forth by the Secretary of State.
Prohibits the Notary from allowing another person to access or use the Notary’s electronic signature or electronic seal.
Requires the Notary to take all reasonable steps to protect the Notary’s electronic signature and electronic seal from unauthorized disclosure, access, or use.
Requires a Notary to provide the Secretary of State with a copy of the Notary’s electronic signature and electronic seal as prescribed by the Secretary of State.
Requires a Notary to attach or logically associate the Notary’s electronic signature and electronic seal to an electronic online notarial certificate 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.
Requires a Notary to immediately notify the Secretary of State, using a notification process designated by the Secretary of State, and all appropriate law enforcement agencies of the unauthorized use or access by or disclosure to another person, loss, compromise, theft, vandalism, corruption, or breach of the Notary’s electronic signature or electronic seal.

Fees for Online Notarial Acts

Sets the maximum fee of $30 for each signature taken for taking an acknowledgment of a deed or other instrument, which includes the affixation of the electronic seal and completion of the electronic notarial certificate.
Sets the maximum fee of $30 for administering an oath or affirmation to one person and executing the jurat, which includes the affixation of the electronic seal and completion of the electronic notarial certificate.
Prohibits a Notary from charging a fee for any online notarial act notarizing signatures on vote by mail ballot identification envelopes or other voting materials and related to a United States military veteran for notarization of an application or a claim for a pension, allotment, allowance, compensation, insurance, or any other veteran’s benefit (Government Code Section 8211(d) and (f)).

Journals of Online Notarial Acts

Requires a Notary to keep one tangible journal and one or more electronic journals to record online notarial acts.
Requires the tangible journal to contain the following information for each online notarial act: (a) The date and time of the online notarization; (b) The name of each person whose electronic signature is notarized; (c) The title, or a short description if no title exists, of every electronic record sworn to, affirmed, acknowledged, or proved before the Notary; (d) The name of the online notarization platform whose online notarization system was used; and (e) The unique transaction identifier provided by the online notarization platform that will, for not fewer than 10 years after the date of the online notarial act, be sufficient to identify the line item of the online notarial act in the applicable secure electronic journal; and (f) The location of the secure electronic journal.
Clarifies that the principal’s signature and thumbprint is not required to be recorded in the tangible journal for an online notarial act.
Clarifies that Government Code Sections 8206-8230 apply to the tangible journal of online notarial acts.
Requires the electronic journal or journals to contain the following information for each online notarial act: (a) The date and time at the Notary’s location at the time of the online notarial act, and type of each official online notarial act; (b) The physical location of the principal as represented to the Notary by the principal and physical location of the Notary at the time of the online notarial act; (c) The title, or a short description if no title exists, of every electronic record sworn to, affirmed, acknowledged, or proved before the Notary; (d) The electronic signature of each person whose electronic signature is being notarized; (e) Satisfactory evidence of identity of the principal pursuant to Government Code Section 8231.8(a), which must be in the form of a notation of the type of identification credential provided to the Notary for credential analysis, a record of the identity proofing, and other information as may be required by the Secretary of State; (f) A statement that an audio-video recording of the online notarial act was made; (g) The fee, if any, charged for the online notarization; (h) The name of the online notarization platform whose online notarization system was used; and (i) The unique transaction identifier as defined in Government Code Section 8231.5(a)(2)(C).
Requires an electronic journal to be maintained on an encrypted storage device or encrypted online media that is accessed by the Notary with secure multifactor means of authentication.
Requires a backup of the electronic journal to be made immediately after new information is added to the electronic journal.
Requires the electronic journal to be kept under the direct and exclusive control of the Notary and the Notary to take all reasonable steps to protect the electronic journal from unauthorized disclosure, access, or use.
Authorizes an online notarization platform to retain custody of the electronic journal on behalf of the Notary if it expressly provides custodial services as part of the online notarization system and it provided this information to the Secretary of State in its application under Section 8231.14.
Clarifies that if the online notarization platform does not provide custodial services for a Notary, the online notarization platform has a duty not to retain the electronic journal or any entries after providing a reasonable opportunity for download by the Notary as required by Government Code Section 8231.14(i).
Requires a Notary utilizing an online notarization platform that does not provide custodial services to save a copy of the electronic journal to a depository registered with the Secretary of State at least once per calendar month.
Requires a Notary to immediately notify the Secretary of State, by certified or registered mail or any other means of delivery that provides a receipt, and all appropriate law enforcement agencies of the unauthorized disclosure to or use by another person, loss, compromise, theft, vandalism, corruption, or breach of the Notary’s electronic journal.
Requires the notification to the Secretary of State of a lost, compromised, stolen, vandalized, or corrupted electronic journal, or a breach of the electronic journal, to include the period of the affected journal entries, the Notary’s commission number and the expiration date of the commission, a description of the affected data, a copy of any pertinent police report, and any other information required by the Secretary of State.
Requires an online notarization platform to notify the Secretary of State and the Notaries using its online notarization system, by certified or registered mail or any other means of delivery that provides a receipt, and all appropriate law enforcement agencies of the unauthorized disclosure to or use by another person, loss, compromise, theft, vandalism, corruption, or breach of the online notarization system.
Requires the notification by an online notarization platform of the unauthorized disclosure to or use by another person, loss, compromise, theft, vandalism, corruption, or breach of the online notarization system to be made in the most expedient time possible and without unreasonable delay to the Secretary of State and Notaries, and to include the period of affected journal entries, a description of the affected data, a copy of any pertinent police report if available at the time of notification, and any other information required by the Secretary of State.
Requires a Notary to maintain each tangible and electronic journal for so long as the Notary is registered with the Secretary of State to perform online notarizations.
Provides that a Notary who resigns, is disqualified, is removed from office, or allows their registration as a Notary authorized to perform online notarizations to expire without obtaining reappointment within 30 days to retain the electronic journal for 10 years after the performance of the last notarial act chronicled in the electronic journal personally or by transmitting it to a depository registered with the Secretary of State within 30 days of the applicable event.
Provides that in the case of the death of a Notary, the personal representative of the deceased must promptly notify the Secretary of State of the death of the Notary and retain the journal or cause the journal to be retained by a depository designated by or on behalf of the person required to retain the journal.
Requires a Notary to provide to a member of the public, pursuant Government Code Sections 8206(c) and 8206.5, a copy of the entry in the Notary’s journal corresponding to the requested transaction in tangible format or in an electronic format in accordance with rules and regulations adopted by the Secretary of State.
Requires a Notary to provide, and in the case of an electronic journal as applicable, an online notarization platform and depository to enable, access to the Notary’s journal or a copy of the Notary’s electronic journal: (a) To a peace officer pursuant to Government Code Section 8206 (d) or 8228; (b) Upon receipt of a subpoena duces tecum or a court order pursuant to Government Code Section 8206(e), or to comply with any other applicable federal, state, or local law, a lawful subpoena or court order, or a lawful request from a law enforcement or regulatory agency; and (3) To the Secretary of State pursuant to Government Code Section 8228.
Authorizes a Notary to charge a reasonable fee, as determined by a rule adopted by the Secretary of State, to recover the cost to the notary of providing a copy of an entry in an electronic journal for an online notarial act.

Recordings of Online Notarial Acts

Requires a Notary, by use of an online notarization system, to create an audio-video recording of each online notarization.
Requires a Notary to retain the audio-video recording on an encrypted storage device or encrypted online media that is accessed by the Notary with secure multifactor means of authentication.
Requires the audio-video recording to be created in an open format and not include images of any electronic record that was the subject of the online notarization, and further requires the Notary to utilize an online notarization platform or depository approved by the Secretary of State for these purposes.
Authorizes an online notarization platform to retain custody of the audio-video recording on behalf of the Notary if it expressly provides custodial services and provided this information to the Secretary of State in its application under Government Code Section 8231.14.
Provides that if the online notarization platform does not provide custodial services for a Notary, the online notarization platform has a duty not to retain the audio-video recordings after providing a reasonable opportunity for the download by the Notary as required by Government Code Section 8231.14(i).
Requires a Notary to retain the audio-video recording of each online notarial act with either of the following: (a) An online notarization platform that provides custodial services to the Notary and provided this information to the Secretary of State in its registration under Section 8231.14; or (b) A depository registered with the Secretary of State under Section 8231.14.
Requires a Notary to retain each audio-video recording for at least 10 years after the performance of the notarial act documented in the audio-video recording, regardless of the Notary’s current authorization status to perform online notarizations either personally or by a depository registered with the Secretary of State.

Platforms and Depositories

Requires a person to apply for registration with the Secretary of State to be an online notarization platform or depository as prescribed by the Secretary of State.
Requires an entity required to obtain a certificate of qualification from the Secretary of State in order to transact business in California to do so before applying for registration with the Secretary of State to be an online notarization platform or depository.
Requires an online notarization platform or depository to provide security for claims against the online notarization platform or depository or the online notarization platform’s or depository’s representatives, or employees based upon acts, errors, or omissions arising out of the business of the online notarization platform or depository through either one or an aggregate of both of the following: (a) 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 $250,000; or (b) 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 $250,000.
Requires the Secretary of State to develop an application for registration to be submitted by an online notarization platform or depository applicant.
Authorizes the Secretary of State to refuse registration of an online notarization platform or depository for failure to conform with the application requirements.
Authorizes Secretary of State to refuse to register any online notarization platform or depository or revoke or suspend the registration of any online notarization platform or depository for a violation of Government Code Sections 8231-8231.18.
Requires the application for an online notarization platform or depository to include, but not be limited to: (a) The name and complete business or residence street address of an agent upon whom process may be served within California if this information is not already on file with the Secretary of State; and (b) 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 the applicant will comply with Government Code Sections 8231-8231.18 and any rules or regulations adopted by the Secretary of State pursuant to these sections that apply to online notarization platforms or depositories, and the lawful properly-served process; (c) For applications to be an online notarization platform, whether the online notarization platform provides custodial services for the Notary; and (d) A statement indicating that the applicant has no order, judgment, or decree entered against them in any civil or criminal action involving fraud, material misrepresentation, and any willful acts or gross negligence related to breaches of secure information required to be stored under the Online Notarization Act.
Provides that a registration may be refused or canceled if the application is found to include a material misrepresentation or if the registrant subsequently has an order, judgment, or decree entered against them in any civil or criminal action as defined in Government Code Section 8231.14(d)(4).
Authorizes the Secretary of State to charge a fee for an application for registration submitted for an online notarization platform or depository in an amount necessary to administer Government Code Sections 8231-8231.18.
Provides that only an online notarization platform that has obtained registration from the Secretary of State may provide an online notarization system for a Notary authorized to perform online notarizations while commissioned in California.
Requires an online notarization platform to take all reasonable steps to ensure that a Notary for whom it provides an online notarization system has the knowledge to use the system to perform online notarial acts in compliance with Government Code Sections 8231-8231.18 and any rules or regulations adopted by the Secretary of State pursuant to these sections.
Provides that an online notarization platform or depository that provides custodial services for a Notary must not delete an online journal entry or the audio-video recording of an online notarization until (a) The contract for custodial services is terminated or the Notary resigns, is disqualified, is removed from office, or allows their registration as a Notary authorized to perform online notarizations to expire without obtaining reappointment, and (b) The Notary has downloaded the journal entry or audio-video recording within a reasonable time determined by the online notarization platform or depository upon termination of the contract for custodial services.
Requires an online notarization platform that does not provide custodial services for a Notary not to delete an online journal entry or audio-video recording of an online notarial act until the Notary has been provided a reasonable opportunity to download the entry or record.
Provides that 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, and an online notarization platform that ceases to provide custodial services, must do both of the following: (a) At least 30 calendar days before this event, notify each Notary that has utilized the online notarization platform or depository of the event and enable the Notary to transfer all records of online notarial acts performed by the Notary, or all records stored by the depository, including, but not limited to, any electronic journals or audio-video recordings, to another online notarization platform, to the Notary, or to a certified depository, at no cost to the Notary (all the while not deleting any records of online notarial acts performed by the Notary until the Notary has been provided a reasonable opportunity to download the entry or recording); and (b) Upon full compliance with (a) above, thereafter promptly delete all audio-video recordings of online notarizations and electronic journals.
Authorizes an online notarization platform or depository that is acquired by or merges with another entity that is not registered with the Secretary of State as an online notarization platform or depository to continue operating as an online notarization platform or as a depository if all of the following are met: (a) The online notarization platform or depository submits an updated application for registration as required by Government Code Section 8231.14(d) based on the new circumstances after acquisition or merger; (b) The updated application for registration is submitted to the Secretary of State at least 90 days prior to the acquisition or merger being completed, or as soon as permitted by applicable law, and the Secretary of State approves the updated application; and (c) The online notarization platform or depository notifies all Notaries using the online notarization platform or depository at least 30 days before the completion of the acquisition or merger, or as soon as permitted by applicable law.
Clarifies that a Notary authorized to perform online notarizations using an online notarization platform or depository will not be vicariously liable for any damages resulting from the online notarization platform’s or depository’s failure to comply with the requirements of Government Code Sections 8231-8231.18 or any rules or regulations adopted by the Secretary of State pursuant to these sections, and further clarifies that any provision in a contract or agreement between a Notary and an online notarization platform or depository that attempts to waive this immunity is null and void.

Protection of Personal Information

Prohibits an online notarization platform or depository from having access to a Notary’s electronic signature or electronic seal.
Prohibits an online notarization platform or depository from accessing, using, sharing, selling, disclosing, producing, providing, releasing, transferring, disseminating, or otherwise communicating (a) The contents of the Notary’s electronic journal, (b) The contents of a document notarized by a Notary, (c) The contents of an audio-video recording of an online notarial act, or (d) The personal information of a principal, except to comply with any other applicable federal, state, or local law, a lawful subpoena or court order, or a lawful request from a law enforcement or regulatory agency, or, in the case of (b), (c), and (d), absent the express written request from the principal.
Provides that notwithstanding Government Code Section 8231.15(a), (b), (c), (d), and (e), an online notarization platform or depository may access, use, share, disclose, produce, provide, release, transfer, disseminate, or otherwise communicate the Notary’s electronic signature or electronic seal, the contents of the Notary’s electronic journal, the contents of a notarized document or audio-video recording, or the personal information of a principal, to the extent necessary to: (a) Facilitate the performance of an online notarial act; (b) Comply with the requirements of Government Code Sections 8200-8230, Government Code Sections 8231-8231.18, rules and regulations adopted by the Secretary of State pursuant to Government Code Sections 8231-8231.18, or any other applicable federal, state, or local law, or a lawful subpoena or court order, or a lawful request from a law enforcement or regulatory agency; (c) Administer, affect, enforce, or process a record provided by or on behalf of a principal or the transaction of which the record is a part; (d) As necessary to implement the requirements of Government Code Sections 8231-8231.18 and any rules or regulations adopted by the Secretary of State and to implement the fraud mitigation measures as outlined in NIST Special Publication 800-63A, dated June 2017, promulgated by the National Institutes of Standards and Technology, or any successor publication.
Requires, in the most expedient time possible and without unreasonable delay, an online notarization platform or depository to 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 unauthorized access or use by or disclosure to another person, loss, compromise, theft, vandalism, corruption, or breach of: (a) A Notary’s electronic signature or electronic seal; (b) A Notary’s electronic journal; and (c) Any records of online notarial acts.

Protections for California Consumers Using Notaries of Other States

Clarifies that a “business” (as defined) consents to the jurisdiction of the courts of California for transactions related to a principal located in California.
Requires a business to comply with all the requirements in Government Code Section 8231.18 enumerated below for transactions related to a principal located in California.
Requires a business to create an encrypted electronic journal entry for each remote online notarial act that enables access by the notarial officer through secure multifactor means of authentication and is capable of providing both physical and electronic copies of any entry made therein.
Requires the electronic journal entry to contain, at a minimum, the following information: (a) The date, time, and type of each remote online notarial act in Coordinated Universal Time; (b) The physical location of the principal as represented to the business by the principal, and the physical location of the notarial officer at the time of the remote online notarial act; (c) The title, or a short description if no title exists, of each record that was the subject of the remote online notarial act; (d) The electronic signature of each principal; (e) A statement as to the basis of the notarial officer’s method of identification of the principal; (f) A statement that an audio-video recording of the remote online notarial act was made as required; (g) The fee, if any, charged for the remote online notarial act; and (h) The name of the business that provided the software platform for the performance of the remote online notarial act.
Requires a business to create an audio-video recording of each remote online notarial act facilitated by the business.
Requires a business to enable access to the audio-video recording by the notarial officer through a secure multifactor means of authentication.
Requires a business that creates an audio-video recording of each online notarial act to create the recording in an open format and without images of any record that was the subject of the remote online notarization.
Provides that each electronic journal entry and audio-video recording must be retained in accordance with federal, state, or local law, as applicable.
Requires a business to provide the principal with a copy of each relevant electronic journal entry and audio-video recording following the completion of a transaction in the most expedient time possible.
Requires a business to provide each individual for whom a remote online notarial act is to be performed with a prompt asking if the individual is located in California before the performance of a remote online notarial act.
Provides that if the individual represents to the business that the individual is located in California in response to the prompt, the business must append a document to the record that is subject to the remote online notarial act which indicates the principal’s response to the prompt, as well as the notarial officer’s location at the time of the remote online notarial act.
Clarifies that the failure to obtain or append the document indicating the principal’s location does not affect the validity of the record or the remote online notarial act, and nothing in Government Code Section 8231.18 may be construed to require submission of the appended document as a condition of recording or acceptance under California law.
Requires a business to produce an audit trail detailing the following information completed as a part of each transaction involving a remote online notarial act: (a) The action performed; (b) The date and time of the action’s performance in Coordinated Universal Time; (c) The name of the party performing the action; and (d) The Internet Protocol address of the party performing the action.
Requires a business to encrypt all audio-video communication and records related to a remote online notarization and take reasonable steps to ensure that the audio-video communication used in a remote online notarization is secure from unauthorized interception.
Requires a business, in the most expedient time possible and without unreasonable delay, to notify all appropriate law enforcement agencies and any affected principals of the unauthorized access or use by or disclosure to another person, loss, compromise, theft, vandalism, corruption, or breach of a principal’s personal information or an electronic journal or audio-video recording.
Prohibits a business from accessing, using, sharing, selling, disclosing, producing, providing, releasing, transferring, disseminating, or otherwise communicating the contents of any of the following related to a principal: (a) An electronic journal entry; (b) The contents of a record that is the subject of a remote online notarial act; (c) The audio-video recording of a remote online notarial act; and (d) Personal information.
Clarifies that a business may access, use, share, disclose, produce, provide, release, transfer, disseminate, or otherwise communicate the contents of Government Code Section 8231(c)(5)(A)(i), (ii), (iii), and (iv) to the extent necessary to do any of the following: (a) Facilitate the performance of an online notarial act; (b) Comply with any other applicable federal, state, or local law, a lawful subpoena or court order, or a lawful request from a law enforcement or regulatory agency; (c) Administer, affect, enforce, or process a record provided by or on behalf of a principal or the transaction of which the record is a part; and (d) As necessary to implement the requirements of Government Code Section 8231.18 and to implement the fraud mitigation measures as outlined in NIST Special Publication 800-63A, dated June 2017, promulgated by the National Institute of Standards and Technology, or any successor publication.
Provides that for a violation of any provision of Government Code Section 8231.18, a business is liable in a civil action to the persons injured thereby for any of the following: (a) The greater of any actual damages sustained by that person as a result of the violation, statutory damages of $250 per violation; (b) Injunctive or declaratory relief which is presumed to accrue to the benefit of the public; and (c) Any other relief that the court deems proper.
Provides that in any successful cause of action under Government Code Section 8231.18, the court will award costs of the action, together with reasonable attorney’s fees, as determined by the court.
Provides that an action under Government Code Section 8231.18(a)(1) must be brought no later than 4 years from the date the plaintiff had actual knowledge of the violation.
Authorizes the Attorney General, a city attorney, including the city attorney of a city and county, a county counsel, or a district attorney to bring a civil action in the name of the people of the State of California against a business for any violation of Government Code Sections 8231-8231.18 and recover or obtain any of the remedies available under Government Code Section 8231.18(d)(1).
Provides that an action must be brought under Government Code Section 8231.18(d)(4) no later than 4 years from the date the business notifies the Attorney General of the violation that is the basis of the action.
Clarifies that a business is not vicariously liable for any of the following and is not vicariously liable in any civil action brought under Government Code Sections 8231-8231.18 for any damages proximately resulting from any of the following: (a) The negligence, fraud, or willful misconduct of the notarial officer, principal, or the person that requested notarization of the record, unless the notarial officer is an employee or agent of the business, in which case the business is responsible for the conduct of the notarial officer to the extent provided under other applicable law; and (b) The contents of records uploaded to the business for remote online notarization.

Penalties and Causes of Action

Adds the following to the grounds for which the Secretary of State may refuse to appoint any person as a Notary or may revoke or suspend the commission of any Notary: (a) A violation of Section 8231.5 (related to the keeping of journals for an online notarization); (b) A violation of Section 8231.6 (related to the keeping of an audio-video recording of an online notarization; (c) Use of an online notarization system from an online notarization platform not in compliance with Government Code Section 8231.14; and (d) Use of a depository not in compliance with Government Code Section 8231.14.
Provides that any person who willfully violates any part of Government Code Sections 8207, 8231.7, or 8231.8 shall be subject to a civil penalty not to exceed $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.
Provides if the Notary willfully fails or refuses to retain or deliver their electronic journals pursuant to Government Code Section 8231.5(f)(2), the Notary is guilty of a misdemeanor and is personally liable for damages to any person injured by that action or inaction.
Provides that a person who, without authorization, knowingly obtains, conceals, damages, or destroys the certificate, disk, coding, card, program, software, or hardware enabling a Notary to affix the Notary’s electronic signature or electronic seal is guilty of a misdemeanor.
Provides that for a violation of any provision of Government Code Sections 8231-8231.18, an online notarization platform or depository is liable in a civil action to the persons injured thereby for any of the following: (a) The greater of any actual damages sustained by that person as a result of the violation or statutory damages of $250 per violation; (b) Injunctive or declaratory relief that is presumed to accrue to the benefit of the public; and (c) Any other relief that the court deems proper.
Provides that in any successful cause of action under Government Code Section 8231.17, the court will award costs of the action, together with reasonable attorney’s fees, as determined by the court.
Requires an action under Government Code Section 8231.17(a) to be brought no later than 4 years from the date the plaintiff had actual knowledge of the violation.
Authorizes the Attorney General, a city attorney, including the city attorney of a city and county, a county counsel, or a district attorney to bring a civil action in the name of the people of California against an online notarization platform or depository for any violation of Government Code Sections 8231-8231.18 and recover or obtain any of the remedies available under Government Code Section 8231.17(a).
Provides that an action must be brought under Government Code Section 8231.17(d) no later than 4 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.
Clarifies that an online notarization platform will not be vicariously liable for any of the following and will not be vicariously liable in any civil action brought under Government Code Section 8231-8231.18 for any damages proximately resulting from any of the following: (a) The negligence, fraud, or willful misconduct of the Notary, principal, or the person that requested notarization of the record, or the Notary’s failure to comply with the requirements of Government Code Section 8231-8231.18, any rules or regulations adopted by the Secretary of State pursuant to Government Code Section 8231-8231.18, or any applicable law, unless the Notary is an employee or agent of the online notarization platform, in which case the online notarization platform is responsible for the conduct of the Notary to the extent provided under other applicable law; (b) A Notary’s failure to timely download an electronic journal or audio-video recording or failure to timely transfer those records to the Secretary of State, or the Notary’s deletion of one or more audio-video recording or entries in the Notary’s electronic journal; and (c) The contents of records uploaded to the online notarization platform for notarization.

Recognition of Notarial and Online Notarial Acts

Clarifies that Civil Code Section 1181 shall not be construed to authorize any person, other than a Notary authorized by the Secretary of State, to perform online notarizations to take a proof or acknowledgment of an instrument by means of appearances using audio-video communication.
Clarifies that the proof or acknowledgment of an instrument may “taken” (previously “made”) outside California, but within the United States, and within the jurisdiction of the officer, “by” (previously “before”) the officers listed, including a Notary.
Clarifies that the proof or acknowledgment of an instrument may “taken” (previously “made”) without the United States, “by” (previously “before”) the officers listed, including a Notary.
Clarifies that if the proof or acknowledgment taken without the United States is “taken by” (previously “made before”) a Notary, the signature of the Notary shall be proved or acknowledged in accordance with the provisions of Civil Code Section 1183(b).
Provides that a notarial act performed in another state will be afforded the same legal effect under the law of California as if performed by a notarial officer of California, if the act performed in that state is performed by: (a) A Notary of that state; (b) A judge, clerk, or deputy clerk of a court of that state; or (c) Any other individual authorized by the law of that state to perform the notarial act; and further provides that the signature and title of an individual performing a notarial act in another state are prima facie evidence that the signature is genuine and that the individual holds the designated title, and that the signature and title of a notarial officer described in (a) or (b) conclusively establish the authority of the officer to perform the notarial act.
Provides that a notarial act performed under the authority and in the jurisdiction of a federally recognized Indian tribe will be afforded the same legal effect under the law of California as if performed by a notarial officer of California, if the act performed in the jurisdiction of that tribe is performed by: (a) A Notary of the tribe; (b) A judge, clerk, or deputy clerk of a court of the tribe; or (c) Any other individual authorized by the law of the tribe to perform the notarial act; and further provides that the signature and title of an individual performing a notarial act under the authority and in the jurisdiction of a federally recognized Indian tribe are prima facie evidence that the signature is genuine and that the individual holds the designated title, and that the signature and title of a notarial officer described in (a) or (b) conclusively establish the authority of the officer to perform the notarial act.
Provides that a notarial act performed under federal law will be afforded the same legal effect under the law of California as if performed by a notarial officer of California, if the act performed under federal law is performed by: (a) A judge, clerk, or deputy clerk of a court; (b) An individual in military service or performing duties under the authority of military service who is authorized to perform notarial acts under federal law; (c) An individual designated a notarizing officer by the United States Department of State for performing notarial acts; or (d) Any other individual authorized by federal law to perform the notarial act; and further provides that the signature and title of an individual performing a notarial act under federal authority are prima facie evidence that the signature is genuine and that the individual holds the designated title, and that the signature and title of a notarial officer described in (a), (b), or (c) conclusively establish the authority of the officer to perform the notarial act.
Provides if a notarial act is performed under authority and in the jurisdiction of a foreign state or constituent unit of the foreign state or is performed under the authority of a multinational or international governmental organization, the act will be afforded the same legal effect under the law of California as if performed by a notarial officer of California.
Provides if the title of office and indication of authority to perform notarial acts in a foreign state appears in a digest of foreign law or in a list customarily used as a source for that information, the authority of an officer with that title to perform notarial acts is conclusively established.
Provides that the signature and official stamp of an individual holding an office that appears in a digest of foreign law or in a list customarily used as a source for that information are prima facie evidence that the signature is genuine, and the individual holds the designated title.
Provides that an apostille in the form prescribed by the October 5, 1961, Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents and issued by a foreign state party to the convention conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the indicated office.
Provides that a consular authentication issued by an individual designated by the United States Department of State as a notarizing officer for performing notarial acts overseas and attached to the record with respect to which the notarial act is performed conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the indicated office.

Rules and Regulations

Requires the Secretary of State to adopt rules and regulations necessary to implement Government Code Sections 8231-8231.18.
Requires the rules and regulations to set and maintain standards for online notarizations and Notaries authorized to perform online notarization, including, but not limited to, all of the following: (a) Audio-video communication, including ensuring that principals with disabilities are accommodated by online notarization systems of online notarization platforms and Notaries in a manner consistent with applicable laws; (b) Credential analysis; (c) Electronic and tangible journals, including their form and content; (d) Electronic seals; (e) Identity proofing, which must 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; (f) Online notarization systems; (g) Depositories, including standards for security measures and storage capacity; (h) Registration with the Secretary of State as a Notary authorized to perform online notarizations, or registration as a depository or an online notarization platform; (i) Remote presentation; (j) Retention and storage of records of online notarial acts; and (k) Security and encryption.
Clarifies if the identity proofing standard under NIST Special Publication 800-63A 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, the Secretary of State must adopt the most rigorous standard for identity proofing that also conforms to those laws.
Requires the Secretary of State to adopt regulations related to the unique transaction identifier under Government Code Section 8231.5(a)(2)(E).
Requires the Secretary of State to establish by rule or regulation the time period that constitutes a “reasonable opportunity” for downloading: (a) The electronic journal and any entries of an electronic journal under Government Code Section 8231.5(d)(2); (b) The audio-video recording under Government Code Section 8231.6(b)(2); (c) The audio-video recording following termination of a contract for custodial services under Government Code Section 8231.14(i)(1); and (d) The audio-video recording from an online notarization platform that does not provide custodial services under Government Code Section 8231.14(j)(1)(A).
Requires the Secretary of State to determine the reasonable fee a Notary may charge for a copy of an electronic journal pursuant to Government Code Section 8231.5(i).
Authorizes the Secretary of State to confer with other state entities, departments, or agencies on matters relating to equipment, security, and technological aspects of online notarization standards.
Authorizes the Secretary of State, in developing the rules and regulations, to consider the views of other state entities, departments, or agencies, and members of the public.
Prohibits a Notary from providing online notarization for any principal before the adoption of rules by the Secretary of State.

Other Provisions

Provides that any waiver of the provisions of Government Code Sections 8231-8231.18 is contrary to public policy and is void and unenforceable.
Provides that the provisions of Government Code Sections 8231-8231.18 are severable, and that if any provision of Government Code Sections 8231-8231.18 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.
Makes technical, non-substantive changes.

Effective and Implementation Dates

Provides that Senate Bill 696, including Article 3 (Sections 8232-8231.4), takes effect January 1, 2024.
Sets the implementation date of the new law to be the earlier of (a) certification by the Secretary of State on its internet website that the Secretary of State’s technology project necessary to implement the statutes related to online notarization is complete, or (b) January 1, 2030.
Clarifies that the implementation date may be pushed back later than January 1, 2030, if the Secretary of State informs the Legislature and the Governor in writing on or before January 1, 2029, that their technology project will not be completed by January 1, 2030, and includes in the notification a detailed status report of the technology project.
Sets an operative date of January 1, 2025, for Government Code Section 8231.18.

Analysis

Culminating a long process that began with the first online notarization bill in 2018, Senate Bill 696 enacts permanent online notarization statutes for California Notaries and consumers. Many of the provisions in the new law, particularly the standards for verifying the identity of remote principals, the requirement of creating and maintaining an audio-visual recording of each online notarization, and the standards for audio-video communication mirror the laws of other states. That said, California’s new law contains some precedent-setting provisions as well. It requires a Notary with an existing commission to resign their current commission and reapply for another one if they want to register to perform online notarizations. Notaries who perform online notarizations not only must keep one or more electronic journals, they must also keep one tangible journal. Most importantly, due to California’s insistence on rigorous consumer protections, the new law requires “businesses” (essentially online notarization platform providers) using Notaries of other states to perform remote online notarizations for consumers located in California to follow certain rules. For example, the business must create and provide to the consumer both an electronic journal entry and audio-video recording of the remote online notarial act following completion of the transaction in the most expedient time possible. A prompt asking the principal if they are located in California must be presented to the principal before the remote online notarial act is performed, and other rules apply if they are. It is important to note that these special rules do not fall on the Notary of another state who performs the remote online notarization, because California cannot regulate Notaries who receive authorization to perform remote online notarizations from the laws of their state.

The NNA is also pleased that Senate Bill 696 preserves the fundamental interstate and foreign recognition of documents notarized online. There had been attempts over the past 5 years to limit the recognition of online notarized records performed outside California. Senate Bill 696 not only preserves the well-established and settled law on interstate recognition of notarial acts, but it also enacts the Revised Uniform Law on Notarial Acts recognition provisions for online notarial acts as well as traditional paper-based notarial acts as well. The NNA is also pleased that portions of Senate Bill 696 were inspired by the 2022 Model Notary Act.

The new law will not be operative for a few years due to the need of the Secretary of State to finish its expansive technology project that is needed to implement the new law. Online notarial acts may be performed on the date the technology project is completed or January 1, 2030, whichever is earlier, although it is possible that if the technology project is not ready by January 1, 2030, the Secretary of State could seek an extension.

Read the text of Senate Bill 696.