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IL Administrative Rules 2023 (Remote and Electronic Notarization)

Rule/Regulation

State: Illinois

Effective: June 05, 2023

Summary
This part 4 new law update on the 2023 administrative rules adopted by the Illinois Secretary of State provides various rules for remote and electronic notarizations.
Affects
Adds Sections 176.700, 176.710, 176.720, 176.730, 176.800, 176.802, 176.805, 176.810, 176.815, 176.820, 176.825, 176.830, 176.835, 176.840, 176.845, 176.850, 176.855, 176.860, 176.865, and 176.870 to Title 14, Subtitle A, Chapter I, Part 176 of the Illinois Administrative Code.
Changes

Remote Notarization: Authorization and Identification Standards

  1. Authorizes a Notary Public in Illinois to perform a remote notarial act for remotely located principals under 5 ILCS 312/6-102.5.
  2. Clarifies that a remotely located principal may comply with the requirement to appear personally before a Remote Notary by appearing remotely before the Remote Notary using audio-video technology.
  3. Requires a Notary performing a remote notarization to maintain an accurate and reliable record of each remote notarial act performed.
  4. Provides that before performing a remote notarial act using audio-video communication, a Remote Notary must confirm the identity of the remotely located principal by: (a) Personal knowledge; (b) The oath of a credible witness who personally knows the remotely located principal and who is personally known to the Remote Notary; or (c) Remote presentation by the remotely located principal of a government-issued identification credential that contains a photograph and the signature of the remotely located principal and otherwise conforms to the requirements of 5 ILCS 312/6-102.5(a)(3).
  5. Clarifies that a Remote Notary has personal knowledge of the identity of the remotely located principal appearing before the Remote Notary if the remotely located principal is personally known to the Remote Notary through dealings sufficient to provide reasonable certainty that the remotely located principal has the identity claimed.
  6. Provides that to be a credible witness under Section 6-102.5(a)(3) of the Act, the witness must have personal knowledge of the remotely located principal who has made a statement in or executed a signature on the record that is the subject of the remote notarial act. 
  7. Requires the Remote Notary to have personal knowledge of the credible witness or have verified the identity of the credible witness. 
  8. Provides that a credible witness may be a remotely located principal if the Remote Notary, credible witness, and remotely located principal whose statement or signature is the subject of the notarial act can communicate by using audio-video technology.
  9. Provides that remote presentation by a remotely located principal of a government-issued identification credential must be made on a credential that contains a photograph and the signature of the remotely located principal and otherwise conforms to the requirements of 5 ILCS 312/6-102.5(a)(3).
  10. Provides that if a Remote Notary can neither determine that a credential presented by a remotely located principal is a valid identification of the remotely located principal nor match the physical features of the remotely located principal with the credential presented by the remotely located principal, the Remote Notary must not take any further action to complete a remote notarial act by using that credential to confirm the identity of the remotely located principal.
  11. Requires a Remote Notary to identify a remotely located principal using the means specified in 5 ILCS 312/6-102.5(a). 
  12. Clarifies that nothing in Part 176 shall prohibit a Remote Notary from using enhanced identity verification. (i.e., dynamic knowledge-based assessments).

Remote and Electronic Notarization: Audio-Video Communication Standards

  1. Provides that a Remote Notary may perform a remote notarial act using audio-video communication only if the Remote Notary and the remotely located principal agree to the performance of the remote notarial act using audio-video communication.
  2. Provides that “communication technology,” as defined in 5 ILCS 312/1-104, must provide synchronous audio-video feeds of sufficient video resolution and audio clarity to enable the Remote Notary and remotely located principal to see and speak with each other. 
  3. Requires the communication technology process must provide a means for the Remote Notary reasonably to confirm that a record presented for a notarial act is the same record in which the remotely located principal made a statement or on which the principal executed a signature.
  4. Requires a Remote Notary to verify that the communication technology is sufficient to protect the remote notarial act and the recording of the act made under Section 176.710 and that any personally identifiable information disclosed during the performance of the remote notarial act is protected from unauthorized access, except as may be required to comply with the Notary Public Act and Section 176.710(d), including unauthorized access to: (a) the live transmission of the audio-video feeds; (b) the methods used to perform identity verification; and (c) the recorded audio-video communication that is the subject of the remote notarization and any Electronic Notary’s journal or audio-video recordings maintained or stored as a function of the communication technology.

Remote and Electronic Notarization: “Do-Overs”

  1. Requires a Remote or an Electronic Notary to restart the performance of the remote notarial act from the beginning, including and without limitation confirming the identity of the remotely located principal, if at any time during the performance of the remote notarial act: (a) The remotely located principal or the Remote or Electronic Notary exits the session; (b) The audio-video communication link is broken; or (c) The Remote or Electronic Notary believes that the process of completing the remote notarial act has been compromised and cannot be completed, for any reason, including poor resolution or quality of the audio or video transmission, or both.
  2. Provides that as used in Section 176.920, “session” means the performance of one or more remote notarial acts using audio-video communication on a single set of documents as a single event by a single Remote Notary with one or more remotely located principals and any applicable witnesses.

Certificate of Remote and Electronic Notarization

  1. Provides that a form of notarial certificate for a remote notarization complies with Sections 6-103 and 6-105 of the Notary Public Act if it is in the form provided by applicable law and contains a statement substantially as follows: “This remote notarization involved the use of audio-video technology”.
  2. Prescribes short form notarial certificates for remote: (a) acknowledgments in an individual capacity; (b) acknowledgments in a representative capacity; and (c) verifications on oath or affirmation.
  3. Prescribes short form notarial certificates for electronic: (a) acknowledgments in an individual capacity; (b) acknowledgments in a representative capacity; (c) verifications on oath or affirmation; and (d) witnessing or attesting a signature.

Electronic Notarization: Authorization; Duties and Prohibited Acts

  1. Clarifies that an electronic notarial act has the same force and effect as a notarial act performed in the physical presence of a Notary Public.
  2. Prohibits a person from performing an electronic notarial act unless the Secretary of State has approved the Electronic Notary commission of a person under 5 ILCS 312/2-102 and the traditional Notary commission is in effect.
  3. Authorizes the Secretary of State to suspend or revoke the commission of a Notary who performs or offers to perform an electronic notarial act without an Electronic Notary commission that has been approved by the Secretary of State, as required by Section 176.980(b).
  4. Requires an Electronic Notary to take reasonable steps to: (a) Ensure the integrity, security, and authenticity of each electronic notarial act performed by the Electronic Notary; (b) Maintain a secure backup of the electronic journal kept in accordance with 5 ILCS 312/3-107; and c) Ensure that any audio-video communication while performing an electronic notarial act, and any journal records and audio-video recordings stored as a function of the communication technology, are secure from unauthorized access or interception.
  5. Prohibits an Electronic Notary from: (a) Engaging in any fraudulent activity, deceptive practice, or inequitable act in connection with the Notary Public Act. (b) Engaging in any activity prohibited by 5 ILCS 312/6-104; (c) Failing to record an electronic notarial act performed using audio-video communication or fail to keep such a recording as required by 5 ILCS 312/6A-104; (d) Using an electronic seal or digital certificate that is invalid or fails to comply with this Subpart or Article VI-A of the Notary Public Act during the performance of an electronic notarial act; (e) Failing to notify the Secretary of State of a change in the electronic seal or digital certificate; (f) Using one’s own electronic seal, alone or together with the electronic signature, except in the performance of an electronic notarial act; (g) Allowing unauthorized access to the electronic journal, the Electronic Notary’s electronic signature or the digital certificate, or to the electronic notarization solution used to perform an electronic notarial act; (h) Violating any other provision of this Sections 176.800-176.870 of the administrative rules or Article VI-A of the Notary Public Act relating to the performance of an electronic notarial act.
  6. Clarifies that the penalties, prohibitions, liabilities, sanctions, and remedies for the improper performance of an electronic notarial act are the same as provided by law for the improper performance of a notarial act that is not an electronic notarial act.

Electronic Notarization: Standards for Identity Verification

  1. Provides that before performing an electronic notarial act using audio-video communication, an Electronic Notary must confirm that the electronic document that is the subject of the electronic notarial act is the same document on which the principal made a statement or executed a signature and the identity of the principal by: (a) Personal knowledge; (b) The oath of a credible witness who personally knows the principal and the Notary; or (c) a multi-factor authentication procedure.
  2. Provides that if an Electronic Notary does not have satisfactory evidence of the identity of a remotely located principal pursuant to 5 ILCS 312/6A-103(b)(1), the Electronic Notary must reasonably verify the principal’s identity through a multi-factor authentication procedure.
  3. Requires the multi-factor authentication procedure to analyze the principal’s identification credential presented remotely against trusted third-person data sources, bind the principal’s identity following a successful dynamic knowledge-based authentication assessment, and permit the Electronic Notary to visually compare the identification credential and the principal.
  4. Provides that the multifactor authentication procedure includes (a) remote presentation by the principal of a government-issued identification credential that contains a photograph and the signature of the principal. (b) credential analysis of the government-issued credential and the data on the credential that complies with 5 ILCS 312/6A-103, and (c) a dynamic knowledge-based authentication assessment that complies with 5 ILCS 312/6A-103 or identity proofing under 5 ILCS 312/6A-103.
  5. Requires credential analysis and identity proofing to be performed by a reputable third party who has provided evidence to the Electronic Notary of the ability to comply with Section 176.835.
  6. Requires credential analysis to use public or private data sources to confirm the validity of the identification credential presented electronically by a principal and will, at a minimum: (a) Use automated software processes to aid the Electronic Notary in verifying the identity of each principal; (b) Require the identification credential to pass 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 identification 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 identification credentials; and (d) Enable the Electronic Notary to visually compare for consistency the information and photograph on the identification credential and the principal as viewed by the Electronic Notary in real time through communication technology.
  7. Provides that if an Electronic Notary cannot determine that a credential presented by a principal is a valid identification of the principal or cannot match the physical features of the principal with the credential presented by the principal, the Electronic Notary must not take any further action to complete an electronic notarial act by using that credential.
  8. Requires identity proofing to be performed using a dynamic knowledge-based authentication assessment and meet the following requirements: (a) The principal must answer a quiz consisting of a minimum of five questions related to the principal’s personal history or identity formulated from public or private data sources; (b) Each question must have a minimum of five possible answer choices; (c) At least 80% of the questions must be answered correctly; (d) All questions must be answered within two minutes; (e) If the principal fails the first attempt, the principal may retake the quiz one time within 24 hours; (f) During a retake of the quiz, a minimum of 40% of the prior questions must be replaced; (g) If the principal fails the second attempt, the principal is not allowed to retry with the same Electronic Notary within 24 hours of the second failed attempt; and (h) The Electronic Notary must not be able to see or record the questions or answers.
  9. Clarifies that an Electronic Notary has satisfactory evidence of the identity of the principal if: (a) The Electronic Notary has personal knowledge of the identity of the principal or (b) The requirements of 5 ILCS 312/6A-103(b)(2) are satisfied.

Remote and Electronic Notarization: Records and Storage

  1. Provides that an Electronic Notary must maintain an accurate and reliable journal record of each electronic notarial act performed by the Electronic Notary.
  2. Requires the record to be maintained for at least 7 years and must be made available to the Secretary upon request.
  3. Requires an Electronic Notary performing an electronic notarial act using audio-video communication, and the provider whose system is used, to ensure that the recording of the electronic notarial act and any personally identifiable information disclosed during the performance of the electronic notarial act is protected from unauthorized access.
  4. Permits an Electronic Notary to use a system provider to store the electronic journal and the recording of an electronic notarial act performed using audio-video communication if the provider has registered with the Secretary of State and the provider’s certification is in effect.
  5. Provides that as otherwise provided in #4 above, a provider that stores the electronic journal and the recording of an electronic notarial act performed using audio-video communication must allow the Electronic Notary sole control of the electronic journal and the recording. 
  6. Permits a provider to allow access to the electronic journal of an Electronic Notary or a recording if the Electronic Notary has authorized such access or the access to the electronic journal or recording is authorized by the Notary Public Act or Part 176.
  7. Requires the recording of a remote notarial act performed using audio-video communication, as required by Part 176, to be made available upon request to the following persons or entities: (a) To the remotely located principal for whom the remote notarial act was performed; (b) To the Secretary of State; (c) To a law enforcement or federal, state, or local governmental agency in the course of an enforcement action or the performance of any lawful duty; (d) Pursuant to a court order or subpoena; (5) To the Remote Notary who performed the remote notarial act; (e) To the employer of the Remote Notary to ensure compliance with this Part or the Act; or (f) To any other person who is authorized to obtain the recording by the remotely located principal to the remote notarial act.
  8. Authorizes the recording of an electronic notarial act performed using audio-video communication may be made available: (a) To the principal for whom the electronic notarial act was performed; (b) To the Secretary of State; (c) To a law enforcement or federal, state, or local governmental agency in the course of an enforcement action; (d) Pursuant to a court order or subpoena; (e) To the Electronic Notary who performed the electronic notarial act for any purpose listed in Section 176.855(a) through (d), inclusive; (f) To any other person who is authorized by the parties to the electronic notarial act to obtain the recording; or (g) For any authorized purpose and to ensure compliance with the provisions of Part 176 and Article VI-A of the Notary Public Act governing electronic notarial acts, to the employer of an Electronic Notary who performs an electronic notarial act using audio-video communication or the provider whose system was used to perform such an electronic notarial act, or both.

Electronic Notary Seal and Signature

  1. Provides that after the electronic seal and electronic signature are affixed or attached to or logically associated with an electronic notarial certificate of an electronic document and the electronic notarial act is thereby made complete, the electronic seal and electronic signature of the Notary must be capable of independent verification and the electronic document must be rendered tamper-evident.
  2. Provides that if an Electronic Notary performs an electronic notarial act using audio-video communication, the Electronic Notary must include adjacent to the electronic seal or in the electronic notarial certificate a notation indicating that the electronic notarial act was performed using audio-video communication, using the following or a substantially statement: “Notarial act performed by audio-video communication”.
  3. Prohibits the employer of an Electronic Notary or any of the employer’s employees or agents from using or permitting the use of an Electronic Notary seal or signature by anyone other than the authorized Electronic Notary to whom it is registered.
  4. Provides that access to Electronic Notary signatures and Electronic Notary seals must be protected using biometric authentication, password authentication, token authentication, or other form of authentication approved by the Secretary according to the Act and Part 176.
  5. Requires an Electronic Notary to report, in writing to the Secretary, the theft or vandalism of the Notary’s electronic signature, Electronic Notary seal, electronic record or journal, including the backup record, backup journal, and audio-video recordings within the next business day after discovering the theft or vandalism, and further provides that failure to report the theft or vandalism is grounds for revocation of an Electronic Notary’s commission. 
  6. Requires an Electronic Notary to at all times maintain an electronic seal and at least one digital certificate that includes the Electronic Notary’s electronic signature, and further requires both to comply with the Act and Part 176.
  7. Permits an Electronic Notary to use more than one digital certificate.
  8. Requires an Electronic Notary to replace an electronic seal or digital certificate under the following circumstances: (a) The electronic seal or digital certificate has expired; (b) The electronic seal or digital certificate has been revoked or terminated by the device’s issuing or registering authority; or (c) The electronic seal or digital certificate is for any reason no longer valid or capable of authentication.
  9. Clarifies that an Electronic Notary who replaces an electronic seal or digital certificate must provide the following to the Secretary of State within 10 days after the replacement: (a) The electronic technology or technologies to be used in attaching or logically associating the new electronic seal or digital certificate to an electronic document; (b) The Electronic Notary’s new digital certificate, if applicable; (c) A copy of the Electronic Notary’s new electronic seal, if applicable; and (d) Any necessary instructions or techniques supplied by the vendor that allow the Electronic Notary’s electronic seal or digital certificate to be read and authenticated.
  10. Requires any digital certificates used by an Electronic Notary to conform to the X.509 standard to ensure that the document has been rendered tamper-evident.
Analysis

This part 4 new law update on the 2023 Illinois Notary administrative rules provides the changes to the law related to remote and electronic notarization. Notaries should remember that in Illinois, a “remote” notarization is essentially a paper notarization in which the Notary and signer appear before each other utilizing audio-video communication technology in the manner that was used during the temporary remote notarization authorization during the COVID-19 pandemic. An “electronic notarization” is a remote online notarization. The Illinois Notary statutes and rules do not have a definition of or rules for “in-person electronic notarization’ (IPEN).

A note about the effective date of these provisions. The remote notarization provisions are effective now, while the electronic notarization provisions won’t take effect until Notaries can take the course of study and examination required to obtain an Electronic Notary commission, the Secretary of State starts to process Electronic Notary Commissions, and electronic notarization service provider systems have been approved for use by Electronic Notaries.

Read the adopted administrative rules (see page 8656).

Below are links to the other new law updates on the 2023 Illinois administrative rules.

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