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MI Senate Bill 664

Legislation

State: Michigan
Signed: December 12, 2018

Effective: December 12, 2018
Chapter: Public Act No. 360

Summary

Senate Bill 664 adds electronic notarization provisions to Michigan's Notary statutes.

Affects

Amends Sections 55.263, 55.265, 55.267, 55.275, 55.286b and 55.287 of and adds new Sections 55.286 and 55.286a to the Michigan Compiled Laws.

Changes

Definitions

  1. Defines “credential analysis,” “electronic notarization system,” “electronic signature,” “identity proofing,” “remote electronic notarization platform” and "state."
  2. Modifies the definitions of “acknowledgment,” “electronic,” “information,” “in a representative capacity,” “in the presence of,” “notarial act,” “person,” "official misconduct," “record,” "secretary," “signature,” “suspension” and “verification upon oath or affirmation.”
  3. Deletes the definition of "electronic signature in global and national commerce act."

Notification

  1. Requires a Notary to notify the Secretary of State that he or she will be performing electronic notarial acts prior to performing the Notary’s initial electronic notarial act and identify the electronic notarization system the Notary intends to us.
  2. Provides that if the Secretary of State and Department of Technology, Management, and Budget have approved the use of 1 or more electronic notarization systems, the Notary must select the system from the approved list.

Electronic Notarial Acts

  1. Permits a Notary to select 1 or more tamper-evident electronic notarization systems to perform notarial acts electronically.
  2. Prohibits anyone from requiring a Notary to perform an electronic notarial act with an electronic notarization system that the Notary has not selected.
  3. Provides that the Secretary may disallow the use of an electronic notarization system if the system does not satisfy the criteria under new Section 26A.
  4. In addition to the other information a Notary must include on a record containing a notarial act, requires a Notary to include on each record whether the act was performed using an electronic notarization system under Section 26b.

Electronic Notarization Systems

  1. Requires the Secretary of State and Department of Technology, Management, and Budget to review and approve at least 1 electronic notarization system for the performance of electronic notarizations by March 30, 2019.
  2. Clarifies that by March 1, 2019, the Secretary of State and Department of Technology, Management, and Budget shall review and may approve remote electronic notarization platforms for the performance of notarial acts.
  3. Allows the Secretary of State and Department of Technology, Management, and Budget to approve more than 1 electronic notarization system by March 30, 2019, and allows for systems to be approved on an ongoing basis.
  4. Requires the Secretary of State and Department of Technology, Management, and Budget to review the criteria for approval of electronic notarization systems and whether currently approved systems remain sufficient at least every 4 years.
  5. Provides the following criteria by which the Secretary of State and Department of Technology, Management, and Budget will approve electronic notarization systems: (a) the need to ensure that any change to or tampering with an electronic record is evident; (b) the need to ensure integrity in the creation, transmittal, storage, or authentication of electronic notarizations, records, or signatures; (c) the need to prevent fraud or mistake in the performance of electronic notarizations; (d) the ability to adequately investigate and authenticate a notarial act performed electronically with that electronic notarization system; (e) the most recent standards regarding electronic notarizations or records promulgated by national bodies, including, but not limited to, the National Association of Secretaries of state; and (f) the standards, practices, and customs of other jurisdictions that allow electronic notarial acts.
  6. Provides if an electronic notarization system is approved or certified by a government-sponsored enterprise, as that term is defined in 2 USC 622(8), the Secretary and the Department of Technology, Management, and Budget shall approve the system if verifiable proof of that approval or certification is provided to the Secretary and Department, unless the use of the system is affirmatively disallowed by the Secretary.

Other Provisions

  1. Authorizes the Secretary of State to develop and implement an electronic application and payment process for Notary commission applicants.
  2. Makes technical, non-substantive changes.
Analysis

Earlier in 2018, Michigan adopted remote online electronic notarization provisions (see the new law update for House Bill 5811). At the same time, the Secretary of State had sponsored Senate Bill 664, a bill that would allow Notaries to perform "traditional" electronic notarizations. Senate Bill 664 requires a Notary who wishes to perform electronic notarizations to inform the Secretary of State before performing one and identify the electronic notarization system he or she will use. The new law requires the Secretary and the Department of Technology, Management, and Budget to formally approve such systems. The first must be approved no later than March 30, 2019. Notaries must use only approved systems. The new law provides the criteria by which systems will be approved. Senate Bill 664 also made some additional changes to Michigan's Notary statutes. It amended the newly enacted remote online notarization provisions by moving certain definitions to the global definition section. The new law also allows the Secretary to develop and deploy an electronic Notary commission application system.

Read Senate Bill 664.

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