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Law

CO Senate Bill 20-096

Notary Law Update: CO Senate Bill 20-096

State: Colorado

Summary:

Senate Bill 20-096 authorizes Colorado Notaries to perform remote notarizations and prescribes rules for how to perform them

Signed:  June 26, 2020

Effective:  December 31, 2020

Chapter: 130

Affects:

Amends Sections 24-21-502, 24-21, 506, 24-21-515, 24-21-519, 24-21-527 of and adds Section 24-21-514.5 to the Colorado Revised Statutes

Changes:

Definitions

  1. Defines “audio-video communication”, “credential”, “credential analysis”, “dynamic, knowledge-based authentication assessment”, “interim period”, “outside the United States”, “public key certificate”, “‘real-time’ or ‘in real time’”, remotely located individual”, remote notarization”, ‘remote notarization system”, “remote presentation”, “tamper-evident” and “temporary rule”.

Authorization to Perform Remote Notarizations

  1. Provides that personal appearance for a notarial act includes (a) being in the same physical location as another individual and close enough to see, hear, communicate with, and exchange tangible identification credentials with that individual; or (b) interacting with a remotely located individual by means of real-time audio-video communication in compliance with CRS 24-21-514.5 and rules adopted by the Secretary of State.
  2. Authorizes Notaries to perform remote notarizations for a remotely located individual who is located: (a) in Colorado, (b) outside Colorado but within the United States, or (c) outside the United States.
  3. Provides that a Notary may perform a remote notarization for a remotely located individual located outside the Unites States if the Notary has no actual knowledge that the notarial act is prohibited in the jurisdiction in which the remotely located individual is physically located at the time of the act.
  4. Provides that a Notary may perform a remote notarization for a remotely located individual located outside the Unites States if the remotely located individual confirms to the Notary that the requested notarial act and the record relate to a matter that will be filed with or is currently before a court, governmental entity, or other entity in the United States, property located in the United States, or a transaction substantially connected to the United States.
  5. Prohibits a Notary from using a remote notarization system to (a) a record relating to the electoral process or (b) a will, codicil, document purporting to be a will or codicil, or any acknowledgment required under CRS 15-11-502 or 15-11-504.

Notification to Perform Remote Notarizations

  1. Requires a Notary to notify the Secretary of State that the Notary will be performing remote notarizations before performing the first one and identify the remote notarization system the Notary will use.
  2. Requires the remote notarization system the Notary identifies to the Secretary of State to conform to the new laws and any rules adopted by the Secretary.
  3. Requires the notice a Notary gives to the Secretary of State that the Notary will be performing remote notarizations to (a) include an affirmation that the Notary has read and will comply with CRS 24-21-514.5 and (b) be accompanied by proof that the Notary has successfully completed any training and exam required by the Secretary.

Standards for Remote Notarizations

  1. Requires a Notary who performs remote notarizations to be physically in Colorado at the time of performing a remote notarization.
  2. Requires a Notary who performs remote notarizations to execute the notarial act in a single, real-time session.
  3. Requires a Notary who performs remote notarizations to confirm that any record signed, acknowledged, or otherwise presented for notarization by the remotely located individual is the same record signed by the Notary.
  4. Requires a Notary who performs remote notarizations to confirm that the quality of the audio-video communication is sufficient to make the determinations required for the remote notarization under the new law.
  5. Requires a Notary who performs remote notarizations to identify the venue for the notarial act as the state of Colorado.
  6. Requires a remote notarization system to require the Notary, remotely located individual and any required witness to access the system through an authentication procedure that conforms to the rules of the Secretary of State.
  7. Requires a remote notarization system to enable the Notary to verify the identity of the remotely located individual and any required witness by means of personal knowledge or satisfactory evidence as defined in the new law.
  8. Requires a remote notarization system to confirm that the Notary, remotely located individual and any required witness are viewing the same record and that all signatures, changes and attachments to the record are made in real time.
  9. Requires the Notary to determine from personal knowledge or satisfactory evidence of identity that the remotely located individual appearing before the Notary by means of audio-video communication is the individual that he or she purports to be.
  10. Provides that a Notary has satisfactory evidence of identity of a remotely located individual if the Notary can identify the remotely located individual using the oath of a credible witness who personally knows the remotely located individual, is personally known to the Notary, and is in the physical presence of the Notary or the remotely located individual during the remote notarization.
  11. Provides that a Notary has satisfactory evidence of identity of a remotely located individual if the Notary can identify the remotely located individual using remote presentation and credential analysis of a government-issued identification credential with a signature and photograph of the remotely located individual and one of the following: (a) a dynamic knowledge-based authentication assessment by a trusted third party that complies with rules adopted by the Secretary of State; (b) a valid public key certificate that complies with rules adopted by the Secretary, or (c) any other method that complies with rules adopted by the Secretary.
  12. Allows a Notary to refuse to perform a remote notarization if the Notary is not satisfied that the requirements of CRS 24-21-514.5 are met.
  13. Requires a certificate of remote notarization to indicate the remote notarization was performed using audio-video communication technology.

Journal and Recording of Remote Notarization

  1. Requires a Notary who performs remote notarizations to maintain an electronic journal for each remote notarization.
  2. Requires a Notary to create an audio-video recording of each remote notarization if: (a) the Notary first discloses to the remotely located individual the fact of the recording and the details of its intended storage, including where and for how long it will be stored; (b) the remotely located individual explicitly consents to both the recording and storage of the recording; and (c) the recording is stored in compliance with rules adopted by the Secretary of State.
  3. Clarifies the recording of the remote notarization is in addition to a journal entry for the remote notarization.
  4. Provides that the recording of the remote notarization must include the information required under CRS 24-21-514.5(9)(b) but also that the Notary must make a good faith attempt not to include any other information. 
  5. Provides that any information in a recording not specifically required under CRS 24-21-514.5(9)(b) is not admissible in any court, legal proceeding, or administrative hearing for any purpose, nor is the information admissible in any proceeding in any other court of law, legal proceeding or administrative hearing if Colorado law applies with respect to the remote notarization.
  6. Requires the recording of a remote notarization to include at the commencement of the recording a recitation by the Notary of information sufficient to identify the notarial act, including (a) the name of the Notary, (b) the date and time of the notarial act, (c) a description of the nature of the document or documents to which the notarial act is to relate, and (d) the identity of the remotely located individual whose signature is to be the subject of the notarial act and of any person who will act as a credible witness to identify the individual signer, and the method or methods by which the remotely located individual and any credible witness will be identified to the Notary.
  7. Requires the recording of a remote notarization to include a declaration by the remotely located individual that the individual’s signature on the record is knowingly and voluntarily made.
  8. Requires the recording of a remote notarization to include an explanation by the Notary as to how the Notary knows the remotely located individual and how long the Notary has known the remotely located individual, if the remotely located individual is identified to the Notary by the Notary’s personal knowledge.
  9. Requires the recording of a remote notarization to include a statement by the Notary as to how the Notary knows the credible witness and how long the Notary has known the credible witness; and an explanation by the credible witness as to how the credible witness knows the remotely located individual and how long the credible witness has known the remotely located individual, if the remotely located individual is identified to the Notary by a credible witness.
  10. Requires the recording of a remote notarization to include The statements, acts, and conduct necessary to perform the requested notarial act or supervision of signing or witnessing of the subject record.
  11. Provides that the provisions of CRS 24-21-519 that pertain to the security, inspection, copying, and retention and disposition of a Notary’s journal also pertain to recordings of remote notarizations.

Certificate of Remote Notarial Act

  1. Provides that a certificate of notarial act is sufficient if it sets forth the actions as provided in CRS 24-21-514.5, if applicable, for a remote notarial act.
  2. Clarifies that by executing a notarial certificate, a notarial officer certifies that the officer has made the determinations specified in CRS 24-21-514.5, if applicable, for a remote notarial act.

Validity of Remote Notarizations

  1. Clarifies that the failure of a Notary to perform a duty or meet a requirement related to making a recording of a remote notarization in CRS 24-21-514.5(9) does not invalidate a remote notarization performed by the Notary.
  2. Clarifies that a Notary is not liable to any person for damages claimed to arise from a failure to perform a duty or meet a requirement related to the information included in a recording of a remote notarization in CRS 24-21-514.5(9)(b).
  3. Clarifies that the validity of a remote notarization performed by a Colorado Notary is determined by Colorado law including any rules adopted by the Secretary of State.

Remote Notarization System Approval

  1. Requires that for a remote notarization system or storage system to be approved by the Secretary of State, a provider of the system must certify to the Secretary that the provider and the system complies with the requirements of CRS 24-21-514.5 and the rules adopted under CRS 24-21-527.
  2. Requires that for a remote notarization system or storage system to be approved by the Secretary of State, a provider of the system must maintain a usual place of business in Colorado or, if a foreign entity, appoint and maintain a registered agent, in accordance with CRS 7-90-701 by filing a statement of foreign entity authority in accordance with CRS 7-90-803, with authority to accept service of process in connection with a civil action or other proceeding.
  3. Prohibits providers of remote notarization systems from using, selling or offering to sell, or transferring to another person for use or sale any personal information obtained under CRS 24-21-514.5 that identifies a remotely located individual, a witness to a remote notarization, or a person named in a record presented for remote notarization, except (a) as necessary to facilitate performance of a notarial act; (b) to effect, administer, enforce, service, or process a record provided by or on behalf of the individual or the transaction of which the record is a part; (c) in accordance with the Colorado Revised Uniform Law on Notarial Acts and the rules adopted pursuant to the Act or other applicable federal, state, or local law, or to comply with a lawful subpoena or court order; or (d) in connection with a proposed or actual sale, merger, transfer, or exchange of all or a portion of a business or operating unit of the provider, if the personal information concerns only customers of the business or unit and the transferee agrees to comply with the restrictions set forth in CRS 24-21-514.5(11).
  4. Clarifies that subject to applicable law other than Article 21, Title 24 of the Colorado Revised Statutes, if a record is privileged pursuant to CRS 13-90-107(1)(b), the corresponding electronic record secured and stored by the remote notarization system as provided in Article 21, Title 24 of the Colorado Revised Statutes remains privileged.

Interim and Miscellaneous Provisions

  1. Defines “interim period” to mean from March 30, 2020 and ending on December 31, 2020.
  2. Defines “temporary rule” to mean Rule 5 of the Notary Program Rules as adopted by the Secretary of State effective March 30, 2020 and published at 8 CCR 1505-11, and any analogous successor emergency rule of the Notary program that authorizes remote notarization.
  3. Provides that during the interim period, (a) a Notary may perform notarial acts with respect to a remotely located individual using audio-video communication in accordance with, and subject to the limitations and restrictions set forth in, the temporary rule and (b) Insofar as it relates to any notarial act permitted by the temporary rule and performed during the interim period, any requirement in this part 5 or title 38 that an individual making a statement or executing a signature appear personally before a notarial officer is satisfied by the procedures specified in and permitted by the temporary rule.
  4. Clarifies that a notarial act performed during the interim period with respect to a remotely located individual that complied with the temporary rule is not invalid due to the lack of express statutory authority for the notarial act.
  5. Authorizes the Secretary of State to amend the temporary rule in accordance with CRS Article 4 of Title 24, but the amendment must not permit the performance of a remote notarization with respect to a record described in Section 5.2.2 of the temporary rule other than in accordance with the provisions of the temporary rule as it existed on the effective date of the interim period.
  6. Authorizes the Secretary of State to adopt rules for remote notarization.
Analysis:

Culminating a multi-year effort, Colorado has enacted remote notarization. Privacy was and continues to be the single most important issue behind this legislation. In fact, the title of the bill was "Remote Notaries Protect Privacy." The General Assembly and stakeholders wanted rigorous protections for the personal information that would be exposed to and potentially stored in a technology system that faciliated remote notarization. For the specific privacy provisions in the bill, see the summary under "Remote Notarization System Approval" #3. In addition, the law also requires a Notary to proactively inform a customer that the remote notarization will be recorded and obtain the customer's specific consent before proceeding. In other respects, Colorado's enactment mirrors the rules put in place by other states. The bill is based upon the NNA's Model Electronic Notarization Act in many respects, but it also pulls in provisions for performing notarial acts for remotely located individuals from the Uniform Law Commission's Revised Uniform Law on Notarial Acts. The permanent remote notarization provisions take effect on December 31, 2020, but in the interim, the bill provides that the "remote ink-signed notarization" provisions in the Governor's COVID-19 executive order will be effective until then.

Read the bill text.

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