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AR House Bill 1479

Legislation

State: Arkansas
Signed: March 02, 2017

Effective: July 31, 2017
Chapter: Act No. 306

Summary

House Bill 1479 puts electronic notarization rules into the Arkansas Statutes.

Affects

Adds Subchapter 3 (Sections 21-14-301 through 21-14-308) to Title 21, Chapter 14 of the Arkansas Code.

Changes
  1. Defines terms.
  2. Allows Notaries to perform the following electronic notarial acts: (a) acknowledgments; (b) oaths and affirmations; (c) verifications upon oath or affirmation; (d) signature witnessings; (e) copy certifications; and (f) protests.
  3. Defines “solution provider” as a business entity whose electronic notarization solution has been approved by the Secretary of State and requires Notaries who perform electronic notarizations to use only an approved solution provider.
  4. No longer requires Notaries who perform eNotarizations to obtain a digital certificate from the Secretary of State’s office to create an electronic signature, but requires the Notary’s electronic signature to be (a) unique to the Notary; (b) capable of independent verification; (c) retained under the Notary’s sole control; and (d) attached to or logically associated with the electronic document in a manner that produces evidence of any changes to the electronic document (“tamper-evidence).
  5. Defines “electronic notarial certificate” and requires a Notary who performs electronic notarizations to complete an electronic notarial certificate for each electronic act.
  6. Clarifies that the electronic signature of an electronic notary public in combination with the electronic notary seal shall be used only for the purpose of performing an electronic notarial act.
  7. Prohibits a Notary from disclosing access information used to affix the Notary’s electronic signature except when requested by (a) law enforcement; (b) the courts; or (c) an electronic document preparation and transmission vendor.
  8. Provides that control of the following remains under the sole control Notary, and includes without limitation: (a) passwords; (b) token devices; (c) biometrics; (d) personal identification numbers; and (e) phrases.
  9. Clarifies that liability, sanctions, and remedies for the improper performance of electronic notarial acts are the same as for performance of paper-based notarial acts under Arkansas Code 21-14-11 through 21-14-113.
  10. Clarifies that the methods for identifying a document signer for an electronic notarial act shall be the same as the methods required for a paper-based notarization under Arkansas Code 21-14-101 and following, and prohibits a Notary from identifying a signer based upon familiarity with the signer’s electronic signature when the signer is not present.
  11. Clarifies that a Notary shall not under any circumstances base identification of a signer merely upon familiarity with the electronic signature of the signer or an electronic verification process that authenticates the electronic signature of the signer when the signer is not in the physical presence of the Notary.
  12. Allows a Notary to charge a reasonable fee for performing an eNotarization that is disclosed to the client and principal before performing the act.
  13. Penalizes a Notary who knowingly charges, demands, or receives a fee not authorized by law or who charges, demands, or receives a fee greater than provided in Arkansas’ electronic notarization statutes by a fine not less than $100 for each offense.
Analysis

House Bill 1479 puts into statute electronic notarization rules that previously were contained in administrative rules in the Arkansas Administrative Code. The new statutory provisions both mirror and depart from the administrative rules. The process for qualifying and registering as an electronic Notary is the same as the rules outline. Notaries must take a course and exam, and take a refresher course every two years (the commission term for Notaries in Arkansas is 10 years). 

While the procedures for registering to perform eNotarizations remain the same, the rules for performing eNotarizations depart from the current administrative rules. The new law does not require Notaries to use a digital certificate to create a digital signature as the Notary’s electronic signature, as the current rules require. The new statutes are more technology-neutral and require a Notary to use an electronic notarization solution provider whose technology has been approved by the Secretary of State. The Notary’s electronic signature must meet certain performance standards proposed both in the Electronic Notarization Standards published by the National Association of Secretaries of State and in the NNA’s Model Notary Act of 2010. The new law requires Notaries to keep secure any access information required to affix the Notary’s electronic signature. The new law also clarifies that eNotarizations are performed under the same liability, sanctions and remedies for improperly performed paper-based acts and must follow the same laws for requiring the physical presence of and identifying the signer. Finally, HB 1479 allows Notaries to set their own reasonable fees for electronic notarial acts.

Read House Bill 1479.

 

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