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Rule

Idaho Temporary Rules (2020)

Notary Law Update: Idaho Temporary Rules (2020)

State: Idaho

Summary:

The Idaho Secretary of State has published temporary rules for notarial acts involving remotely located individuals (remote online notarization).

Signed:  November 25, 2019

Effective:  January 02, 2020

Chapter: NA

Affects:

Creates Chapter 34.07.01 in the Idaho Administrative Rules.

Changes:

Registration to Perform Notarial Acts for Remotely Located Individuals

  1. Provides that a Notary who notifies the Secretary of State that he or she will be performing notarial acts for remotely located individuals must complete a form as prescribed by the Secretary and submit the form in writing or as otherwise provided by the Secretary.
  2. Clarifies that renewal of a Notary commission of a Notary who has previously notified the Secretary of State that he or she will be performing notarial acts for remotely located individuals constitutes renewal of approval to perform notarial acts for remotely located individuals and that Notary is not required to submit another notification.
  3. Clarifies that a Notary is not prohibited from receiving, installing or using hardware or software updates to the technologies that the Notary identified for performing notarial acts for remotely located individuals if the updates are not materially different from the technologies the Notary identified in the notification to the Secretary of State.

Technology Requirements for Notarial Acts Involving Remotely Located Individuals

  1. Clarifies that a Notary must use a tamper-evident technology in performing notarial acts for remotely located individuals and that a digital certificate complying with the X.509 standard or similar technology constitutes a tamper-evident technology.
  2. Requires a Notary to attach or logically associate the Notary's electronic signature and official stamp to an electronic record that is the subject of a notarial act by use of a digital certificate.
  3. Prohibits a Notary from performing notarial acts for remotely located individuals if the Notary's digital certificate has expired, has been revoked or terminated by the certification authority, is invalid or is incapable of authentication.
  4. Requires communication technology to provide for synchronous audio-video feeds of sufficient video resolution and audio clarity to enable the notary public and remotely located individual to see and speak with each other
  5. Requires communication technology to provide a means for the Notary reasonably to confirm that the record for notarization is the same record which the remotely located individual made a statement or executed a signature.
  6. Requires communication technology to provide reasonable security measures to prevent authorized access to the live transmission of the audio-visual feeds, the methods used to perform the identity proofing process, and the electronic record that is the subject of the notarial act.
  7. Provides that if a remotely located individual must exit the notarization session, the individual must restart the entire process from the beginning.

Identification of Remotely Located Individuals

  1. Clarifies that identity proofing for a notarial act performed for a remotely located individual must use credential analysis to analyze the individual's identity credential against trusted third-person data sources, bind the individual's identity to the individual following successful knowledge-based authentication, and permit the Notary visually to compare the identity credential and the individual.
  2. Requires credential analysis used to identify a remotely located individual to: (a) Use automated software processes to aid the Notary in verifying the identity of each remotely located individual; (b) Require that the identity credential passes an authenticity test, consistent with sound commercial practices that uses appropriate technologies to confirm the integrity of visual, physical, or cryptographic security features and to confirm that the identity credential is not fraudulent or inappropriately modified; (c) Use information held or published by the issuing source or an authoritative source, as available and consistent with sound commercial practices, to confirm the validity of personal details and identity credential details; and (d) Enable the Notary visually to compare for consistency the information and photograph on the identity credential and the remotely located individual as viewed by the Notary in real time through communication technology.
  3. Requires knowledge-based authentication used to identify a remotely located individual to: (a) comprise a quiz of 5 questions related to the individual’s personal history or identity formulated from public or private data sources; (b) Include 5 possible answers for each question: (c) Require 80% of the questions to be answered correctly; (d) Require that all questions be answered within 2 minutes; (e) Allow a remotely located individual who fails the first quiz to retake the quiz 1 time within 24 hours; (f) Replace 40% of the quiz questions in the retake quiz; (g) Prohibit a remotely located individual who fails the second quiz from retaking the quiz with the same Notary within 24 hours of the second failed attempt: and (h) Not allow the Notary to see or record the questions or answers to the quiz or quizzes.
  4. Allows a credible witness who identifies a remotely located individual to also be remotely located if the Notary, credible witness and signer can communicate using communication technology.
    Provides that communication technology must provide for synchronous audio-video feeds of sufficient video resolution and audio clarity for the Notary and remotely located individual to see and speak with one another.

Records of Notarial Acts for Remotely Located Individuals

  1. Gives Notaries the option of maintaining a journal of notarizations for remotely located individuals and provides that the journal may be a tangible, permanently bound journal or electronic journal.’
  2. Requires a Notary to retain an audio-visual recording required under IC 51-114A, in a computer or other electronic storage device that protects the audio-visual recording against unauthorized access by password or cryptographic process in an industry-standard audio-visual file format.
  3. Prohibits the audio-visual recording from including images of any record in which a remotely located individual made a statement or on which the remotely located individual executed a signature.
    Requires the audio-visual recording to be retained for at least ten (10) years after the recording is made.
  4. Allows a Notary, or guardian, conservator agent or personal representative of a Notary, to engage a third person to act as a repository for the storage of audio-visual recordings and provides rules for the contract a Notary must execute with a repository.
  5. Clarifies that IC 51-133 does not prevent a repository from charging a fee to retain audio-visual recordings. 
  6. Requires a personal representative of a deceased Notary to comply with the record retention requirements for notarial acts involving remotely located individuals and transmit the recording to one or more repositories that archive the recordings.
Analysis:

The Idaho Secretary of State’s office has published temporary rules governing notarial acts performed for remotely located individuals that took effect on January 2, 2020, one day following the effective date of HB 1111 which enacted remote online notarization provisions. The rules clarify how a Notary notifies the Secretary of State that the Notary will be performing notarial acts for remotely located individuals. The rules also outline technology requirements for executing an electronic signature and affixing an electronic seal, for the communication technology a Notary uses, and for the identity proofing process a Notary uses to verify the identity of remotely located individuals. The temporary rules allow a Notary to keep an optional journal of notarial acts in either tangible or electronic form and require a Notary to keep audio-visual recordings of each notarial act performed for a remotely located individual. Finally, the temporary rules specify retention requirements for the audio-visual recordings. The Secretary’s intent is to propose a permanent rule for these new notarial acts that will go through the regular administrative rulemaking process, including a public hearing and approval by the Idaho Legislature.

Read the temporary rules (see pages 452 and following).

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