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Law

IL Senate Bill 2664

Notary Law Update: IL Senate Bill 2664

State: Illinois

Summary:
Senate Bill 2664 enacts comprehensive new provisions for remote notarization and electronic notarization, including requirements for mandatory education and the keeping of a journal for all notarial acts.

Signed:  July 23, 2021

Effective:  January 01, 2022

Chapter: Public Act 102-0160

Affects:
Amends the Illinois Notary Public Act by amending Sections 1-104, 2-101, 2-102, 2-102.5, 2-103, 2-104, 2-105, 2-107, 3-101, 3-103, 3-104, 3-105, 3-106, 4-101, 5-101, 5-102, 6-102, 6-104, 7-106, 7-107, and 7-108 and adding Sections 1-106, 2-101.5, 2-102.6, 2-102.7, 3-101.5, and 3-107, 6-102.5, and the heading of Article VI-A and Sections 6A-101, 6A-102, 6A-103, 6A-104, 6A-105, 6A-106, and 7-110.

Changes:

Definitions

  1. Defines “accredited immigration representative,” “acknowledgment,” “audio-video communication,” “communication technology,” “credential,” “digital certificate,” dynamic knowledge based authentication assessment,” “electronic, “electronic document,” “electronic notarial act,” “electronic notarial certificate,” “electronic notarization system,” “electronic notary public,” “electronic presentation,” “electronic record,” “electronic seal,” “electronic signature,” “identity proofing,” “in the presence of,” “notarial act,” “notary public,” “notarization,” “outside the United States,” “principal,” “public key certificate,” “real time,” “remote notarial act,” “remote notary public,” “tamper-evident,” and “unique to the electronic notary public” and “sole control.”
  2. Defines “electronic notarial act” as an act that an Illinois Electronic Notary Public is authorized to perform and appears to apply to both an electronic notarial act performed in the physical presence of the Electronic Notary and by means of audio-video communication.
  3. Defines an “electronic notarization system” as a set of applications, programs, hardware, software, or technology to enable an Electronic Notary to perform electronic notarial acts through audio-video communication.
  4. Defines “remote notarial act” as a notarial act that is done by way of audio-video communication technology that allows for direct, contemporaneous interaction between the individual signing the document (the signatory) and the witness by sight and sound but that requires the Notary to use his or her physical stamp and seal to notarize the document without the aid of an electronic seal or signature.
  5. Repeals the prior provision in the definitions section to clarify that “notary public” and “notary” are used interchangeably.
  6. Repeals the prior definition of “notarization” in the definitions section.

Notary Public Commission

  1. Requires an applicant for a Notary Public commission to provide the applicant’s email address.
  2. Requires an applicant for a Notary Public commission to state in the application that the applicant is proficient in the English language (formerly the applicant must have stated that he or she is able to read or write English).
  3. No longer requires an applicant for a Notary Public commission to state in the application that the applicant never had an appointment as a Notary that was revoked or suspended in the past 10 years, but now requires the applicant to state that he or she has not had a prior application or commission revoked due to a finding or decision by the Secretary of State.
  4. Requires first-time and renewing Notary Public applicants to take any course of study on notarization and electronic notarization that is required by the Secretary of State and pass an exam.
  5. Provides that the Secretary of State has the authority to adopt administrative rules mandating a course of study and examination and establishing the course of study content, length of the course of study to be required, and to approve any course of study providers.
  6. Authorizes a Notary Public to perform remote notarizations without having to apply for and receive an Electronic Notary Public commission.
  7. Raises the commission appointment fee from $10 to $15 on or after July 1, 2022.
  8. No longer requires a Notary commission to be recorded with the county clerk.
  9. Requires a Notary to notify the Secretary of State of a change of residential address or email address within 30 days.
  10. Provides that the Secretary of State may revoke the commission of a Notary who is a licensed attorney and has been sanctioned, suspended, or disbarred by the Illinois Attorney Registration and Disciplinary Commission or the Illinois Supreme Court.

Electronic Notary Public Commission and Registration

  1. Requires a separate commission as an Electronic Notary Public.
  2. Authorizes an individual to apply for a Notary Public commission and Electronic Notary Public commission at the same time.
  3. Requires first-time and renewing Electronic Notary applicants to take any course of study on notarization and electronic notarization that is required by the Secretary of State and pass an exam.
  4. Clarifies that the commission of a Notary Public and an Electronic Notary Public has the same term.
  5. Clarifies that an Electronic Notary Public commission is suspended by operation of law when the Notary Public is no longer appointed and commissioned as an Illinois Notary Public.
  6. Provides that if the commission of a Notary has been revoked or suspended, the Secretary of State shall immediately notify the Notary in writing that his or her commission as a Notary and as an Electronic Notary will be suspended by operation of law until he or she is reappointed.
  7. Provides the information, as specified, that an applicant for an Electronic Notary Public commission must state in the application for appointment as an Electronic Notary, including the technology the applicant intends to use to perform electronic notarizations.
  8. Sets the application fee for an Electronic Notary Public commission at $25 and is to take effect on or after July 1, 2022.
  9. Requires Electronic Notaries to register with the Secretary of State every time the Electronic Notary adopts a new technology.
  10. Requires vendors of electronic notarization technologies to have their systems approved by the Secretary of State prior to first use.
  11. Requires an Electronic Notary to obtain a $25,000 bond and when a Notary is required to hold both the $5,000 and $25,000 bond, one bond totaling $30,000 may satisfy the requirement.
  12. Requires the bonding company issuing the bond to a Notary or an Electronic Notary to submit verification of the bond information for the Notary to the Secretary of State in a format prescribed by the Secretary.
  13. Requires an Electronic Notary to register his or her chosen device with the Secretary of State before first use.
  14. Requires an Electronic Notary to report any change to the information submitted by an Electronic Notary in registering to perform electronic notarial within 30 business days to the Secretary of State.
  15. Provides that a Notary or Electronic Notary who fails to report a change of name or residential or business address in compliance with 5 ILCS 312/4-101(a), or an Electronic Notary who fails to report any change to the information submitted in registering to perform electronic notarial acts within 30 days in compliance with 5 ILCS 312/4-101(b) shall be prohibited from obtaining a new commission for a period of not less than 5 years.
  16. Clarifies that an Electronic Notary who applies for reappointment must comply with the provisions of Article II of the Notary Public Act.
  17. Clarifies that the prohibition against soliciting a Notary to purchase a bond more than 60 days in advance of the expiration of the Notary’s commission applies to Electronic Notary bonds as well.
  18. Clarifies that Section 7-108 (relating to reprimand, suspension, and revocation of a Notary commission) applies to Electronic Notaries.
  19. Provides that after an Electronic Notary receives notice from the Secretary of State that his or her electronic commission has been revoked, the Electronic Notary must immediately notify the Electronic Notary’s chosen technology provider, and to the extent possible, destroy or remove the software used for electronic notarizations.
  20. Provides that an Electronic Notary may voluntarily resign from appointment by notifying the Secretary of State in writing of his or her intention to do so, and by notifying the Electronic Notary’s chosen technology provider, and to the extent possible, destroying or removing the software used for electronic notarizations.
  21. Provides that any revocation, resignation, expiration, or suspension of the commission of a Notary terminates or suspends any commission to notarize electronically.
  22. Provides that a Notary may terminate registration to notarize electronically and maintain his or her underlying Notary commission upon directing a written notification of the change to the Secretary of State within 30 days.

Notary Public Remittance Agents

  1. No longer requires the following statutory standards to qualify as a Notary remittance agent: (a) the applicant must not have been the subject of any administrative citation, criminal complaint, or civil action arising from his or her duties as a Notary remittance agent; (b) the agent holds a surety bond in the amount of $20,000 for the purposes of acting as a remittance agent, and (c) the agent complies with all requirements set forth by the Secretary of State for the submission of the Notary applications.
  2. Requires Notary remittance agents to remit an application and fee provided by an applicant within 30 days after receiving the application and fee from the applicant.
  3. Prohibits Notary remittance agents from modifying an applicant's application information in any way before submitting it to the Secretary of State.
  4. Prohibits Notary remittance agents from issuing a Notary seal to an applicant until sufficient evidence has been received that the applicant has received a commission from the Secretary of State.
  5. Provides that any violation of the Notary Public Act, including 5 ILCS 312/2-107, may result in an administrative citation, criminal complaint, or civil action arising from his or her duties as a Notary or Notary remittance agent.
  6. Clarifies that the provisions related to Notary remittance agents in 5 ILCS 312/2-107 do not apply to units of government (previously local government) or private businesses that are making applications, and providing application fees for their employees.

Official Seal and Signature

  1. Clarifies that when a Notary receives the commission from the Secretary of State (no longer the county clerk), the Notary shall obtain an official seal.
  2. Requires an Electronic Notary to take reasonable steps to ensure that any registered device used to create an electronic seal or electronic signature is current and has not been revoked or terminated by the device's issuing or registering authority.
  3. Requires an Electronic Notary, upon learning that the technology or device used to create his or her electronic signature has been rendered ineffective or insecure, to cease performing electronic notarial acts until (a) a new technology or device is acquired; and (b) the Electronic Notary sends an electronic message to the Secretary of State that includes the electronic signature of Electronic Notary required under Section 2-102(b)(6) relating to the new technology or device.
  4. Requires an electronic notarial act to be evidenced by the following, which must be attached to or logically associated with the electronic document that is the subject of the electronic notarial act and which must be immediately perceptible and reproducible: (a) the electronic signature of the Electronic Notary; (b) the electronic seal of the Electronic Notary; (c) the words "Notary Public", "State of Illinois", and "My commission expires (commission expiration date)"; and (d) language explicitly stating that the electronic notarial act was performed using audio-video communication, if applicable.
  5. Specifies that an Electronic Notary seal must look identical to a traditional Notary seal.
  6. Requires an Electronic Notary to keep the Electronic Notary’s electronic signature and electronic seal secure and under the Electronic Notary’s exclusive control.
  7. Prohibits an Electronic Notary from allowing another person to use his or her electronic signature or electronic seal.
  8. Requires an Electronic Notary to notify an appropriate law enforcement agency, the vendor of the electronic notarization technology, and the Secretary of State no later than the next business day after the theft, compromise, or vandalism of the Electronic Notary’s electronic signature or electronic seal.
  9. Requires an Electronic Notary to not disclose any access information used to affix the Electronic Notary’s signature and seal except when requested by law enforcement.
  10. Requires an Electronic Notary to attach his or her electronic signature and electronic seal with the electronic notarial certificate of an electronic document in a manner that is capable of independent verification and renders any subsequent change or modification to the electronic document evidence.
  11. Provides that the electronic signature and electronic seal of an Electronic Notary must be used only for the purposes of performing electronic notarial acts.
  12. Provides that the Electronic Notary’s electronic signature and electronic seal are deemed to be reliable if the following requirements are met: (a) they are unique to the Electronic Notary; (b) they are capable of independent verification; (c) they are retained under the Electronic Notary’s sole control; (d) they are attached to or logically associated with the electronic document in a tamper-evident manner (evidence of tampering pursuant to this standard may be used to determine whether the electronic notarial act is valid or invalid); (e) the Electronic Notary has chosen technology or a vendor that meets the minimum requirements established by the Secretary of State and is approved by the Secretary of State; and (f) the technology adheres to any other standards or requirements set by the Secretary of State in the administrative rules for performing electronic notarial acts.

Notarial Acts; Standards of Practice; Prohibited Acts

  1. Applies the advertising requirements under 5 ILCS 312/3-103 to Electronic Notary services.
  2. Provides that if a Notary or Electronic Notary is convicted of a business offense involving a violation of the Notary Public Act (formerly 2 or more business offenses within a 12-month period while commissioned, or of 3 or more business offenses involving a violation within a 5-year period regardless of being commissioned), the Secretary shall automatically revoke the Notary commission or Electronic Notary commission of that person on the date that the person's most recent business offense conviction is entered as a final judgment.
  3. Raises the fees for a notarial act from $1 to $5.
  4. Allows a maximum fee of $25 for an electronic notarization.
  5. Authorizes an Electronic Notary to charge a reasonable fee to recover any cost of providing a copy of an entry or a recording of an audio-video communication in an electronic journal maintained pursuant to 5 ILCS 312/3-107.
  6. Applies the penalty for overcharging Notary fees to the fees of an Electronic Notary.
  7. Requires all Notaries to provide itemized receipts and keep records for fees accepted for services provided, and further provides that notarial fees must appear on the itemized receipt as separate and distinct from any other charges assessed.
  8. Clarifies that a Notary or Electronic Notary has no obligation to perform any notarial or electronic notarial act and may refuse to perform a notarial or electronic notarial act without further explanation.
  9. Prohibits a Notary from explaining, certifying, or verifying the contents of any document; however, this prohibition shall not prohibit an attorney, who is also a Notary, from performing notarial acts for any document prepared by that attorney.
  10. Prohibits a Notary from representing himself or herself as an Electronic Notary if the person has not been commissioned as an Electronic Notary by the Secretary of State.
  11. Prohibits an Electronic Notary from selling or transferring personal information learned through the course of an electronic notarization, except when required by law, law enforcement, the Secretary of State, or court order.
  12. Provides that a Notary duly appointed and commissioned under Section 2-101 of the Notary Public Act may certify that a paper or tangible copy of an electronic document is a true and correct copy of the electronic document if the Notary has: (a) reasonably confirmed that the electronic document is in a tamper-evident format; (b) detected no changes or errors in any electronic signature or other information in the electronic document; (c) personally printed or supervised the printing of the electronic document onto paper or another tangible medium; or (d) not made any changes or modifications to the electronic document or to the paper or tangible copy other than the notarial certificate for the copy certification.
  13. Clarifies that if a notarial certificate is attached to or made a part of a paper or tangible document, the certificate is prima facie evidence that the requirements of a copy certification of a paper printout of an electronic record have been satisfied.
  14. Clarifies that the paper printout copy certification provisions do not apply to any map or plat governed by the Plat Act, the Judicial Plat Act, or the Permanent Survey Act, or to any monument record governed by the Land Survey Monuments Act.
  15. Provides the notarial certificate for a copy certification of a paper printout of an electronic record.

Journal

  1. Requires Notaries and Electronic Notaries to keep a journal.
  2. Authorizes a Notary’s or Electronic Notary’s journal to be paper or electronic.
  3. Prohibits the journal from including any electronic signatures of the person for whom an electronic notarial act was performed or any witnesses.
  4. Authorizes a Notary to maintain more than one journal or electronic journal.
  5. Clarifies that the fact that the employer or contractor of a Notary or Electronic Notary keeps a record of notarial acts or electronic notarial acts does not relieve the Notary of the duties of keeping a journal.
  6. Provides that a Notary or Electronic Notary must not surrender the journal to an employer upon termination of employment and an employer must not retain the journal of an employee when the employment of the Notary or Electronic Notary ceases.
  7. Provides that if the journal of a Notary or Electronic Notary is lost, stolen, or compromised, the Notary or Electronic Notary must notify the Secretary of State within 10 business days after the discovery of the loss, theft, or breach of security.
  8. Prohibits a Notary from selling, renting, transferring, or otherwise making available to a third party the contents of the notarial journal, audio-video recordings, or any other record associated with any notarial act, including personally identifiable information, except when required by law, law enforcement, the Secretary of State, or court order.
  9. Provides that upon written request of a third party, which request must include the name of the parties, the type of document, and the month and year in which a record was notarized, a Notary public may supply a copy of the line item representing the requested transaction after personally identifying information has been redacted.
  10. Authorizes the Secretary of State to suspend the commission of a Notary or Electronic Notary who fails to produce any journal entry within 10 days after receipt of a request from the Secretary of State.
  11. Provides that upon surrender, revocation, or expiration of a commission as a Notary or Electronic Notary, all notarial records or electronic notarial records, except as otherwise provided by law, must be kept by the Notary or Electronic Notary for a period of 5 years after the termination of the registration of the Notary or Electronic Notary.

Remote Notarial Acts (Remote Ink Notarizations)

  1. Provides standards for performing remote notarizations.
  2. Clarifies that any commissioned Notary may perform a remote notarization.
  3. Requires the audio-video communication used for a remote notarization to allow for remotely located Notaries and principals to engage in direct, contemporaneous interaction between the individual signing the document (signatory) and the witness by sight and sound.
  4. Requires the audio-video communication used for a remote notarization to be recorded and preserved by the signatory or the signatory's designee for a period of at least 3 years.
  5. Requires the signatory to attest to being physically located in Illinois during the two-way audio-video communication.
  6. Requires the signatory to affirmatively state on the two-way audio-video communication what document the signatory is signing.
  7. Requires each page of the document being witnessed to be shown to the witness on the two-way audio-video communication technology in a means clearly legible to the witness and initialed by the signatory in the presence of the witness.
  8. Requires the act of signing to be captured sufficiently up close on the two-way audio-video communication for the witness to observe.
  9. Requires the signatory must transmit by fax or electronic means a legible copy of the entire signed document directly to the Notary no later than the day after the document is signed.
  10. Requires the Notary to sign the transmitted copy of the document as a witness and transmit the signed copy of the document back to the signatory via fax or electronic means within 24 hours after receipt.
  11. If necessary, permits the Notary to sign the original signed document as of the date of the original execution by the signatory provided that the witness receives the original signed document together with the electronically witnessed copy within 30 days after the date of the remote notarization.

Electronic Notarial Acts (Remote Online Notarization)

  1. Provides that an electronic notarization system must comply with the Notary Public Act and any rules adopted by the Secretary of State.
  2. Authorizes an Electronic Notary who is physically located in Illinois to perform an electronic notarial act using communication technology in accordance with this Article and any rules adopted by the Secretary of State for a remotely located individual who is physically located: (a) in Illinois or (b) outside of Illinois, but not outside the United States.
  3. Authorizes an Electronic Notary to perform an electronic notarial act for a remotely located individual outside of the United States if the record is to be filed with or relates to a matter before a public official or court, governmental entity, or other entity subject to the jurisdiction of the United States or involves property located in the territorial jurisdiction of the United States or involves a transaction substantially connected with the United States.
  4. Provides that an electronic notarization system requiring enrollment shall enroll only persons commissioned as Electronic Notaries by the Secretary of State.
  5. Requires an electronic notarization vendor to take reasonable steps to ensure that an Electronic Notary who has enrolled to use the system has the knowledge to use it to perform electronic notarial acts in compliance with the Notary Public Act.
  6. Requires a provider of an electronic notarization system requiring enrollment to notify the Secretary of State of the name of each Electronic Notary who enrolls in the system within 5 days after enrollment by means prescribed by rule by the Secretary of State.
  7. Provides that an Electronic Notary who exercised reasonable care enrolling in and using an electronic notarization system shall not be liable for any damages resulting from the system's failure to comply with the requirements of the Notary Public Act, and further provides that any provision in a contract or agreement between the Electronic Notary and provider that attempts to waive this immunity shall be null, void, and of no effect.
  8. Clarifies that an Electronic Notary (a) is a Notary for purposes of the Notary Public Act and is subject to all provisions of the Act; (b) may perform notarial acts as provided by the Act in addition to performing electronic notarizations, and (c) may perform an electronic notarization.
  9. Requires an Electronic Notary to verify the identity of a signer by (a) personal knowledge or (b) remote presentation of an ID, credential analysis of the ID, and a dynamic knowledge-based authentication assessment.
  10. Provides that for an electronic notarization, (a) the technology must allow the persons communicating to see and speak to each other simultaneously; (b) the signal transmission must be in real time, and (c) the electronic notarial act must be recorded.
  11. Requires the electronic notarial certificate for an electronic notarization to include a notation that the notarization is an electronic notarization.
  12. Provides that when performing an electronic notarization, an Electronic Notary must complete an electronic notarial certificate and attach or logically associate the Electronic Notary’s electronic signature and seal to that certificate in a tamper-evident manner, and further provides that evidence of tampering pursuant may be used to determine whether the electronic notarial act is valid or invalid.
  13. Provides that the liability, sanctions, and remedies for improper performance of electronic notarial acts are the same as described and provided by law for the improper performance of non-electronic notarial acts.
  14. Provides that electronic notarial acts need to fulfill the following requirements to ensure non-repudiation and the capability of being authenticated by the Secretary of State for purposes of issuing apostilles and certificates of authentication: (a) the fact of the electronic notarial act, including the Electronic Notary’s identity, signature, and electronic commission status, must be verifiable by the Secretary of State; and (b) the notarized electronic document will be rendered ineligible for authentication by the Secretary of State if it is improperly modified after the time of electronic notarization, including any unauthorized alterations to the document content, the electronic notarial certificate, the Electronic Notary’s electronic signature, or the Electronic Notary’s official electronic seal.
  15. Requires an Electronic Notary to arrange for a recording to be made of each electronic notarial act using audio-video communication in addition to the requirement to keep a journal.
  16. Requires an Electronic Notary to inform the parties in an electronic notarization that the notarial act will be recorded.
  17. Provides that if the person for whom the electronic notarial act is being performed is identified by personal knowledge, the recording of the electronic notarial act must include an explanation by the Electronic Notary as to how he or she knows the person and how long he or she has known the person.
  18. Provides that if a credible witness identifies the principal, (a) the credible witness must appear before the Electronic Notary; and (b) the recording of the electronic notarial act must include a statement by the Electronic Notary as to whether he or she identified the credible witness by personal knowledge or satisfactory evidence and an explanation by the credible witness as to how he or she knows the person for whom the electronic notarial act is being performed and how long he or she has known the person.
  19. Requires an Electronic Notary to keep recordings of electronic notarization for not less than 7 years, regardless of whether the notarial act was completed.
  20. Requires an Electronic Notary to include a statement in the electronic notarial certificate to indicate that the electronic notarial act was performed by means of audio-video communication and clarifies that the statement may also be included in the electronic notarial seal.
  21. Requires an Electronic Notary to (a) be located within Illinois at the time the electronic notarial act is performed; (b) execute the electronic notarial act in a single recorded session that complies with Section 6A-103; (c) be satisfied that any electronic record that is electronically signed, acknowledged, or otherwise presented for electronic notarization by the principal is the same record electronically signed by the Electronic Notary; (d) be satisfied that the quality of the audio-video communication is sufficient to make the determination required for the electronic notarial act under the Notary Public Act and any other law of Illinois, and (e) identify the venue for the electronic notarial act as the jurisdiction within Illinois where the Notary is physically located while performing the act.
  22. Provides that an electronic notarization system used to perform electronic notarial acts by means of audio-video communication must conform to the requirements set forth in the Notary Public Act and to administrative rules adopted by the Secretary of State.
  23. Clarifies that the provisions of Section 3-107 related respectively to the security, inspection, copying, and disposition of the journal shall also apply to the security, inspection, copying, and disposition of audio-video recordings.
  24. Requires the completion of an electronic notarial certificate for each electronic notarization.
  25. Provides that an electronic notarial certificate is sufficient if: (a) is in the short form set forth in Section 6-105; (b) is in a form otherwise prescribed by the law of Illinois; or (c) sets forth the actions of the electronic Notary and those actions are sufficient to meet the requirements of the designated electronic notarial act.
  26. Requires an Electronic Notary to officially sign every electronic notarial certificate and electronically affix the electronic seal clearly and legibly so that it is capable of photographic reproduction at the time of the electronic notarization, and further provides that the illegibility of any of the information required in this provision does not affect the validity of a transaction.
  27. Clarifies that a person may appear before the person taking the acknowledgment by (a) being in the same physical location as the other person and close enough to see, hear, communicate with, and exchange tangible identification credentials with that person, or (b) being outside the physical presence of the other person, but interacting with the other person by means of communication technology.
  28. Provides that if the acknowledging person is outside the physical presence of the person taking the acknowledgment, the certification of acknowledgment must indicate that the notarial act was performed by means of communication technology in substantially the following words: "The foregoing instrument was acknowledged before me by means of communication technology this (date) by (each form continued as sufficient for its respective purposes).”

Other Provisions

  1. Permits the Secretary of State to establish an online application system for Notary or Electronic Notary commissions.
  2. Requires an applicant for a Notary Public or Electronic Notary Public commission who uses the Secretary of State’s online application system to agree to authorize the Secretary of State to utilize his or her signature to conduct a verification to confirm the information provided in the application, including a criminal background check, if necessary.
  3. Authorizes the Secretary of State to maintain a database of Notaries on a publicly accessible website which: (a) any interested person may use to verify the authority and good standing of a listed individual to perform notarial acts; (b) indicates whether a Notary holds a valid electronic commission and is able to lawfully perform electronic notarial acts, and (c) describes any administrative or disciplinary action taken against the Notary by the Secretary of State.
  4. Removes the fine not exceeding $1,000 for unlawfully possessing a Notary’s official seal, but makes it unlawful to unlawfully possess, obtain, conceal, damage, or destroy a Notary’s official seal.
  5. Provides that the validity of any notarization, including an electronic notarization, shall be determined by applying the laws of Illinois, regardless of the physical location of the principal at the time of a remote notarization.
  6. Clarifies if there is a conflict between Section 7-110 of the Act and another law of Illinois, Section 7-110 controls.
  7. No longer authorizes county clerks to issue a certificate of authority but vests this responsibility solely to the Secretary of State for notarial acts and electronic notarial acts.
  8. Prohibits any person from knowingly creating, manufacturing, or distributing software or hardware for the purpose of allowing a person to act as an Electronic Notary without being commissioned in accordance with the Notary Public Act, and penalizes a violation as a Class A misdemeanor.
  9. Prohibits any person from wrongfully obtaining, concealing, damaging, or destroying the technology or device used to create the electronic signature or seal of an Electronic Notary and penalizes a violation as a Class A misdemeanor.
  10. Provides that a Notary or other person who is not an Electronic Notary who impersonates an Electronic Notary to perform electronic notarial acts is guilty of a Class A misdemeanor.

Administrative Rules and Standards

  1. Requires the Secretary of State to adopt rules setting forth the standards electronic Notary platforms must achieve to be approved for use and requirements with which vendors of electronic Notary platforms must comply.
  2. Requires the Secretary of State to adopt rules for Notary remittance agents.
  3. Authorizes the Secretary of State to adopt administrative rules to implement 5 ILCS 312/3-101 (related to the Notary’s and Electronic Notary’s seal and matters related thereto).
  4. Authorizes the Secretary of State to adopt administrative rules to implement 5 ILCS 312/3-101.5 (related to the security of the electronic signature and seal).
  5. Requires the Secretary of State to adopt administrative rules to implement 5 ILCS 312/6A-104.
  6. Requires Secretary of State to adopt administrative rules to remote notarization.
  7. Requires the Secretary of State to adopt administrative rules that set forth the requirements a provider of electronic notarization technology must meet to be approved for use in Illinois and sets minimum requirements for the rules.
  8. Requires the Secretary of State to adopt administrative rules for journals that set forth, at a minimum: (a) the information to be recorded for each notarization or electronic notarization; (b) the period during which the Notary or Electronic Notary must maintain the journal; and (c) the minimum-security requirements for protecting the information in the journal and access to the contents of the journal.
  9. Creates an Electronic Notarization Fund within the State treasury that funds the Secretary of State’s Index Department’s implementation and maintenance of Electronic Notary commissions and provides rules related to the Fund.

Effective Dates

  1. Provides that the new law takes effect the later of January 1, 2022, or the date the Secretary of State’s office files with the Index Department of the Office of Secretary of State a notice that it has adopted rules necessary to implement the new law.
  2. Provides that Section 1-106 (Electronic Notarization Fund) takes effect July 1, 2022.
  3. Provides that the increased fee for Notary commissions ($15) and the fee for Electronic Notary commissions ($25) take effect July 1, 2022.
Analysis:

Senate Bill 2664 is the product of over two years of meetings and deliberations involving the Electronic Notarization Task Force established by the General Assembly in Public Act 100-0440 (Senate Bill 1459) of 2017 to study and recommend legislation for electronic notarization. The result was a framework authorizing Illinois Notaries to apply for a separate Electronic Notary commission, which in Illinois provides authority to perform remote online notarizations. The bill also allows any Notary to perform “remote notarizations” which are understood to be “remote ink notarizations” of the kind authorized in Illinois during the COVID-19 pandemic. The new law requires Notaries and Electronic Notaries to satisfy a mandatory education and examination requirement and keep a journal of notarial acts for all notarizations. The bill also requires Electronic Notaries specifically to obtain a $25,000 bond for electronic notarizations in addition to the $5,000 bond required to perform traditional notarial acts. The bill has various effective dates (see “Effective Dates” under “Changes” above). The most important date is the latter of January 1, 2022, or when the Secretary of State’s office has filed a notice with the Secretary’s Index Department that it has adopted rules to implement the Act. When this takes place, most of the provisions of Senate Bill 2664 will take effect.

Read the bill text.

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