DE Senate Bill 246 | NNA
Law

DE Senate Bill 246

Notary Law Update: DE Senate Bill 246

State: Delaware

Summary:

Senate Bill 246 implements important new provisions for both paper-based and electronic notarial acts, including new identification procedures and comprehensive standards for electronic signatures, seals and journals. Certain electronic notarization provisions are innovative and may prove to be controversial. Some paper-based sections of Chapter 43 are little changed by the new law, including sections based upon the Uniform Law on Notary Acts that contain five short-form Notary certificates.

Signed:  June 26, 2008

Effective:  February 01, 2009

Chapter: Act No. 280

Affects:

Amends Title 29, Chapter 43 of the Delaware Code

Changes:

Definitions

  1. Adds new definitions of “copy certification,” “credible witness,” “document,” “electronic,” “electronic document,” “‘electronic notarial act’ and ‘electronic notarization,’” “electronic notarial certificate,” “‘electronic notary public’ or ‘electronic notary,’” “‘electronic notary seal’ or ‘electronic seal,’” “electronic signature,” “personal knowledge of identity,” “principal,” “record of notarial acts,” “satisfactory evidence of identity,” “seal,” and “Secretary,” which are derived in whole or in part from The Model Notary Act.

Commissioning of Notaries and Electronic Notaries

  1. Authorizes the Governor to delegate duties related to the appointment of Notaries to the Secretary of State.
  2. Requires any person who performs notarial acts under Delaware law to register and be commissioned as a Notary or electronic Notary.
  3. Requires an applicant for a commission to list his or her street address within Delaware.
  4. Authorizes the Secretary of State to publish regulations regarding registrations of Notaries and electronic Notaries.
  5. Authorizes the commissioning of electronic Notaries who: (a) Are of good character and reputation; (b) Show a reasonable need for a commission; (c) Are legal residents of Delaware, nonresidents who maintain an office or regular employment in Delaware, an attorney in good standing licensed in any state, or a current employee of a banking, trust or insurance company organized and regulated under the laws of the U.S. or any state provided the company has applied to the Secretary of State to demonstrate the company is in good standing and has a need for one or more employees to become electronic Notaries. (Note: the attorney or employee referenced above may reside in any state and still be qualified to be commissioned as a Delaware electronic Notary.)
  6. Repeals a previous provision stating that a court reporter need not be a legal resident of Delaware for one year at the time of appointment as a Notary, if the court reporter is a resident of the state at the time of appointment.
  7. Prescribes the requirements for the registration form an applicant for an electronic Notary commission must complete and transmit electronically, including: (a) The applicant’s full legal name; (b) A description of the technology or technologies the applicant will use for electronic identification, electronic signatures and any other aspect involved for performing eNotarizations; (c) Information related to the device used to create an electronic signature if such device is issued or registered through a licensed authority; (d) The eMail address of the applicant; (e) The unique electronic signature of the applicant; (f) Proof that the applicant has taken a live, distance or online course of instruction on eNotarization according to standards adopted by the Secretary of State; (g) Other information requested by the Secretary; and (h) Any keys, codes decrypting instructions or software that allow the registration to be read.
  8. Permits eNotaries to update their registrations due to a change of technology of technologies for performing eNotarizations during the course of the commission. A registration is required to be electronically submitted to the Secretary of State within 90 days of installation or use of the updated technology.
  9. Authorizes the Governor or Secretary to revoke the commission of an electronic Notary for cause.
  10. Authorizes the Secretary to promulgate regulations or standards for applications, registrations, appointments and the conduct of resident and nonresident electronic Notaries.
  11. Increases the fee for a two-year commission from $50 to $60 and a four-year reappointment from $75 to $90 and repeals the previous $3 fee charged for affixing the Great Seal on the com-mission by the Governor. (Note: Notaries are initially commissioned for two years, but may reapply for either a two-year or four-year term.)
  12. Prescribes procedures for resignation as a Notary or eNotary and expiration of the Notary’s commission, including immediately destroying, deleting, erasing the coding, disk, certificate, card, software or password used to affix an electronic signature, and imposes a $500 civil penalty for a failure to do so.
  13. Clarifies that nonresident eNotaries shall take and subscribe the oath or affirmation of office before a clerk of court, deed recorder or other judicial officer and pay the fees for obtaining a certified copy of the commission signed by the official who administered the oath or affirmation.

Personal Appearance and Identification of Document Signers

  1. Requires a document signer to be physically present before the Notary or eNotary at the time of notarization.
  2. Prohibits a Notary or eNotary from performing a notarial act unless the document signer is identified by the Notary through personal knowledge or satisfactory evidence of identity.
  3. Defines “satisfactory evidence of identity” as: (a) Examination of one or more of the following documents bearing a photographic image of the individual’s face and signature: U.S. passport, certificate of U.S. citizenship, certificate of naturalization, unexpired foreign passport, alien registration card with a photograph, state-issued driver’s license or identification card, or U.S. military ID card; (b) One credible witness unaffected by the document who is personally known to the Notary and personally knows the signer; and (c) Two credible witnesses unaffected by the document who personally know the signer and present a state-approved written ID to the Notary.
  4. Defines “personal knowledge of identity” as familiarity with a person over a period of time sufficient to dispel any reasonable uncertainty that the person has the identity claimed.

Physical and Electronic Seal

  1. Defines “seal” as a device for affixing on a paper document an image containing the Notary’s name and other information related to the Notary’s commission.
  2. Defines “electronic Notary seal” as information within a notarized document that confirms the Notary’s name, jurisdiction and commission expiration date and generally corresponds to data in Notary seals used on paper documents.
  3. Requires a Notary to affix a sharp, legible, permanent and photographically reproducible image of the physical seal or electronic seal on each document notarized.
  4. Requires Notaries to use an electronic Notary seal which contains the Notary’s official commission name, the words “My commission expires on” and the commission expiration date, and the words “Notary Public” and “State of Delaware.”
  5. Requires Notaries to immediately notify the Secretary of State if the physical or electronic seal has been lost, stolen or otherwise used by an unauthorized person. In the case of theft or vandalism, the Notary may also notify law enforcement.
  6. Requires the Secretary to disable use of the technology on any electronic system of the Secretary reported by a Notary as lost or missing. Upon request of the electronic Notary and submission of a new electronic registration form signed by the Notary with decrypting instructions, keys, codes or software that allow the form to be read, the Secretary may reinstate the Notary.
  7. Requires a Notary to use an electronic seal that conforms to generally accepted standards for secure electronic notarization.
  8. Emphasizes that the Notary’s electronic seal must be attached to an electronic document in a manner that is capable of independent verification and prevents any subsequent changes or modifications to the e-document.
  9. Directs the Notary to keep the electronic seal under the Notary’s exclusive control and not allow the e-seal to be used by any other person.

Official Signature and Electronic Signature

  1. Prescribes that a Notary must sign a paper document in the exact name that appears on the official commission or electronically sign a document in a manner that attributes such electronic signature to the Notary identified on the commission.
  2. Emphasizes that the Notary’s electronic signature must be attached to an electronic document in a manner that is capable of independent verification and prevents any subsequent changes or modifications to the e-document.
  3. Requires an eNotary to use an electronic signature that conforms to generally accepted standards for secure electronic notarization.

Electronic Notarization

  1. Authorizes an eNotary to perform electronic notarial acts.
  2. Clarifies that an electronic notarial act shall constitute a notarial act under the laws of Delaware if the electronic signature and seal of the Notary: (a) Is attached to or logically associated with the e-document; (b) Is independently verifiable; and (c) Is invalidated if the underlying document is modified.
  3. Requires a Notary to take reasonable steps to ensure that any device used to create an electronic signature is current and has not been revoked or terminated by its issuing authority.
  4. Clarifies that a Notary must only use the Notary’s electronic signature and seal to perform electronic notarial acts.
  5. Directs a Notary to take reasonable steps to ensure the integrity, security and authenticity of electronic notarizations.

Electronic Journal of eNotarizations

  1. Defines a “record of notarial acts” as a device for creating and preserving a chronological record of notarizations performed and requires Notaries performing eNotarizations to keep such a record.
  2. Specifies that the e-journal must include the following entries for each eNotarization: (a) Date, and time of each act; (b) Type of electronic notarial act; (c) Type, title or description of the document or proceeding; (d) Printed name and address of each signer; (e) Evidence of identity of each signer; (f) Fee for the eNotarization; and (g) Any additional information the Notary deems necessary.
  3. Prohibits a Notary from recording a Social Security or credit card number in the e-journal.
  4. Requires a Notary to maintain and protect a back-up record of the e-journal, and authorizes the Secretary of State to establish standards for the back-up record.
  5. Directs a Notary to keep the official e-journal secure under the Notary’s exclusive control and not allow the e-journal to be used by any other person.

Fees

  1. Permits Notaries to charge a maximum fee of $25 for an electronic notarization, while the fee for a paper-based notarization remains $5.
  2. Authorizes the Secretary of State to establish a schedule of fees for each electronic notarial act or service not to exceed $10 per act or service.
  3. Allows a Notary to waive the fee the Notary may charge for an eNotarization, but prohibits the Notary from waiving the transaction fee assessed by the Secretary for the eNotarization.

Presumption of Validity

  1. Clarifies that an electronic notarial act performed by a Notary who has been appointed by the Governor under Chapter 43 of the Delaware Code shall be deemed to have been performed within the state.
  2. Clarifies that a document shall be presumed to have been notarized properly if it appears on its face to have been notarized by a Notary or notarial officer.
  3. Clarifies that a document shall be presumed to have been notarized properly if it appears on its face to have been notarized by a Notary or notarial officer of another U.S. state, commonwealth, territory, district or insular possession of the United States.
  4. Clarifies that a document shall be presumed to have been notarized properly if it appears on its face to have been notarized by a Notary or notarial officer under federal authority.

Electronic Authentications

  1. Authorizes the Secretary of State to authenticate the electronic signature and seal of an electronic Notary by using an electronic certificate of authority signed by the Secretary.
  2. Prescribes the wording of the electronic certificate of authority form to be used by the Secretary in authenticating the electronic signature and seal of the Notary.
Analysis:

Senate Bill 246 is a comprehensive new law with some important changes and several innovative and controversial provisions for electronic notarization. SB 246 implements new standards for identifying document signers, most notably in respect to specifying the exact forms of written identification Notaries may accept. SB 426 also commendably emphasizes that a document signer must be physically present before the Notary at the time of notarization and establishes standards for the safekeeping of the Notary’s physical seal.

These important new laws are overshadowed by the electronic notarization provisions of SB 246. Many of the new rules are taken from Article III of The Model Notary Act, such as the educational requirement, journal provisions and certain standards surrounding the security and use of electronic signatures and seals. NNA Executive Director Tim Reiniger consulted with the Secretary of State’s office on many provisions in the bill and provided drafts of sections that were incorporated in whole or in part.

However, SB 246 includes several controversial provisions. First, the law allows any attorney in good standing in any state to become an electronic Notary. Second, it also allows any person who is employed by a banking, trust or insurance company organized and regulated under the laws of the U.S. or any state to become an electronic Notary. This means that an attorney or resident of California or any other state could conceivably be commissioned as a Delaware electronic Notary. The state of Wisconsin is the only other state to have a provision like this. Wisconsin allows any U.S. resident to become a Notary, but the commission may only be used when a nonresident Notary is present within the state. Delaware goes much further in allowing electronic Notaries to perform eNotarizations outside the state and actually grants a presumption that an electronic notarial act is deemed to have been performed within the state whether or not it actually was. Third, in the event that the electronic Notary’s electronic signature or seal is lost, stolen or missing, the law requires the Secretary to “disable” the electronic technology the Notary uses to affix the signature and seal. This law suggests that the electronic notarization system used in Delaware may be a centralized or state-wide solution, or at minimum requires the Secretary to have access to the system Notary uses. Finally, while the NNA applauds the provision in the legislation allowing electronic Notaries to charge a maximum fee of $25 for each electronic notarization, we are not sure what to think of the provision essentially allowing the Secretary of State to charge a per transaction fee of up to $10 for each electronic notarization performed. It appears that Delaware is creatively seeking ways to add revenues to the state budget, capitalizing on the number of corporate documents and filings that are transacted within the state. Since this transaction fee may not be waived, it undoubtedly will be perceived as an “electronic notarization tax.” It remains to be seen whether this will spur or impede adoption of electronic notarization.

Read the bill text.

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