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Law

NE Legislative Bill 186

Notary Law Update: NE Legislative Bill 186

State: Nebraska

Summary:

Legislative Bill 186 authorizes Notaries to register as online Notaries and perform remote online notarizations.

Signed:  May 30, 2019

Effective:  July 01, 2020

Chapter: TBD

Affects:

Amends Sections 64-105, 64-113, 64-203, 64-205 of and adds as yet uncodified sections to the Nebraska Revised Statutes.

Changes:

Definitions

  1. Defines “communication technology,” “credential analysis,” “electronic,” “electronic document,” “electronic signature,” “identity proofing,” “online notarial act,” “online notarial certificate,” “online notary public,” “online notary solution provider,” “personal knowledge” or “personally knows,” “principal” and “remote presentation.”

Online Notary Registration

  1. Requires a Notary to register as an online Notary before performing online notarial acts.
  2. Requires a person registering as an online Notary to: (a) hold a valid commission as a Notary in Nebraska; (b) satisfy the education requirement; and (c) pay the fee required established by the Secretary of State (in an amount not to exceed $50).
  3. Requires a person before registering as an online Notary to take a course of instruction and pass an examination approved by the Secretary of State.
  4. Requires the course of instruction and examination to be approved by the Secretary of State by July 31, 2020.
  5. Provides that the content of the course and the basis for the examination shall include notarial laws, procedures, technology, and the ethics of performing online notarial acts.
  6. Requires registration as an online Notary to include: (a) the technology provided by an online notary solution provider approved by the Secretary of State that the Notary intends to use to perform an online notarial act; (b) a certification by the notary that he or she will comply with the standards developed under section 7 of act; and (c) an email address for the notary.
  7. Clarifies that the term of registration as an online Notary shall coincide with the term of the commission of the Notary.
  8. Requires an application to renew registration as an online Notary to specify any change in the technology provided by an online notary solution provider approved by the Secretary of State that the online Notary intends to use to perform online notarial acts.
  9. Clarifies that a person registered as an online Notary may renew his or her online Notary registration at the same time he or she renews his or her Notary commission.
  10. Clarifies that the Online Notary Public Act does not require a Notary to register as an online Notary if he or she does not perform online notarial acts.

Rules

  1. Requires the Secretary of State to adopt and promulgate rules and regulations: (a) creating standards for online notarial acts in accordance with the Online Notary Public Act, including standards for credential analysis, identity proofing, and communication technology used for online notarial acts; and (b) to ensure the integrity, security, and authenticity of online notarial acts in accordance with the Online Notary Public Act.
  2. Requires the rules and regulations to include procedures for the approval of online notary solution providers by the Secretary of State.
  3. Authorizes the Secretary of State to adopt and promulgate rules and regulations to facilitate the utilization of online notarial acts.

Online Notarization Standards

  1. Authorizes the following notarial acts to be performed by an online Notary: (a) acknowledgments; (b) jurats; (c) verifications or proofs; and (d) oaths and affirmations.
  2. Provides that an online notary's electronic signature in combination with the online notary seal shall be used only for the purpose of performing online notarial acts.
  3. Requires an online Notary to take reasonable steps to ensure that any registered device used to create an electronic signature is current and has not been revoked or terminated by the device's issuing or registering authority.
  4. Authorizes an online notary to perform an online notarial act authorized under section 8 of the act that meets the requirements of the Online Notary Public Act and the rules and regulations adopted and promulgated under it regardless of whether the principal is physically located in this state at the time of the online notarial act.
  5. Requires an online Notary to verify the identity of an individual creating an electronic signature. Requires identity to be verified by: (a) the online notary's personal knowledge of the individual creating the electronic signature; (b) remote presentation by the individual creating the electronic signature of a government-issued identification credential that is current and that bears the photographic image of the individual's face and signature and a physical description of the individual, except that a properly stamped passport without a physical description is satisfactory evidence, credential analysis of such credential and identity proofing of the individual creating the electronic signature; or (c) the oath or affirmation of a credible witness who is in the physical presence of either the online notary or the individual and who has personal knowledge of the individual if the credible witness is personally known to the online notary or the online Notary has verified the identity of the credible witness using remote presentation, credential analysis and identity proofing.
  6. Requires an online notary to take reasonable steps to ensure that the communication technology used in an online notarial act is secure from unauthorized interception.
  7. Requires an online notary to attach the online notary's electronic signature and online notary seal to the online notarial certificate of an electronic document in a manner that is capable of independent verification and that renders evident any subsequent change or modification to the electronic document.
  8. Requires an online notarial certificate for an online notarial act to include a notation that the notarial act is an online notarial act.
  9. Authorizes an online Notary or his or her employer may charge a fee in an amount not to exceed $25 for each online notarial act in addition to any fee authorized under RSN 33-133.

Electronic Record of Online Notarizations

  1. Requires an online Notary to keep a secure electronic record of electronic documents notarized by the online Notary.
  2. Specifies that for each online notarial act, the electronic record must contain: (a) the date and time of the online notarial act; (b) The type of online notarial act; (c) the type, title, or description of the electronic document or proceeding; (d) the printed name and address of each principal involved in the transaction or proceeding; (e) evidence of identity of each principal involved in the transaction or proceeding in the form of: (i) a statement that the principal is personally known to the online notary; (ii) A notation of the type of identification document provided to the online notary; (iii) a record of the identity verification made under section 11 of the act; or (iv) the printed name and address of each credible witness swearing to or affirming the principal's identity; and for each credible witness not personally known to the online Notary, a description of the type of identification documents provided to the online Notary; (f) a recording of any video and audio conference of the performance of the online notarial act; and (g) the fee, if any, charged for the online notarial act.
  3. Prohibits the recording of the video and audio conference of the online notarial act from containing images of the documents that were notarized.
  4. Requires an online notary to take reasonable steps to: (a) maintain a backup for the secure electronic record; and (b) protect the secure electronic record and backup record from unauthorized use.
  5. Requires the electronic record and backup record to be maintained for at least 10 years after the date of the transaction or proceeding.
  6. Prohibits an online Notary from surrendering or destroying the record except as required by a court order or as allowed under rules and regulations adopted and promulgated by the Secretary of State.

Security of Online Notarizations

  1. Requires an online Notary to take reasonable steps to ensure the integrity, security, and authenticity of online notarial acts.
  2. Requires an online Notary to keep secure and under his or her exclusive control the online Notary's electronic signature, online notary seal, and the electronic record and backup record.
  3. Prohibits an online Notary from allowing another person to use the online notary's electronic signature, online notary seal, or electronic record or backup record.
  4. Requires an online Notary to immediately notify an appropriate law enforcement agency and the Secretary of State of the theft or vandalism of the online Notary's electronic signature, online notary seal, or the electronic record or backup record.
  5. Requires an online notary to immediately notify the Secretary of State of the loss or use by another person of the online Notary's electronic signature, online notary seal, or the electronic record or backup record.
  6. Provides that when the registration of an online Notary expires or is resigned, canceled, or revoked or when an online Notary dies, he or she or his or her duly authorized representative shall erase, delete, or destroy the coding, disk, certificate, card, software, file, password, or program that enables the electronic affixation of the online Notary's official electronic signature and online notary seal; and further requires an online notary or his or her duly authorized representative to certify compliance that they have done so to the Secretary of State.
  7. Provides that a former online Notary whose previous registration was not revoked, canceled, or denied by the Secretary of State need not erase, delete, or destroy the coding, disk, certificate, card, software, file, password, or program that enables the electronic affixation of the online notary's official electronic signature and online notary seal if he or she is reregistered as an online Notary using the same electronic signature within three months after the former registration expired.

Miscellaneous

  1. Provides that a person who, without authorization, knowingly obtains, conceals, damages, or destroys the coding, disk, certificate, card, software, file, password, program, or hardware enabling an online notary to affix an official electronic signature or online notary seal shall be guilty of a Class I misdemeanor.
  2. Provides that a person violating the Online Notary Public Act is subject to having his or her registration removed under the removal procedures provided in section 64-113.
  3. Provides rules for the attaching of evidence of authenticity of the electronic signature and online notary seal of an online Notary and prescribes a certificate of authority for this purpose.
  4. Clarifies that Sections 64-101 to 64-119 and 64-211 to 64-215 and the Uniform Recognition of Acknowledgments Act govern an online notary unless the provisions of such sections and act are in conflict with the Online Notary Public Act, in which case the Online Notary Public Act controls.
  5. Clarifies that an online notarial act performed under the Online Notary Public Act satisfies any requirement of Nebraska law that a principal appear before, appear personally before, or be in the physical presence of a notary at the time of the online notarial act except for requirements under: (a) a law governing the creation and execution of wills, codicils, or testamentary trusts; or (b) the Uniform Commercial Code other than article 2 and article 2A.
  6. Clarifies that the Electronic Notary Public Act does not apply to online notarial acts or online notaries acting under the Online Notary Public Act.
  7. Clarifies that RSN Section 64-105 does not apply to online notarial acts.
  8. Clarifies that under RSN Sections 64-202 and 64-205, appearance before the person taking an acknowledgement includes an appearance outside the presence of a notary if such acknowledgement was completed in accordance with the Online Notary Public Act.
  9. Makes technical changes.
Analysis:

Nebraska becomes the 12th state in 2019 and the 22nd overall to enact remote online notarization provisions. Legislative Bill 186 is modeled after the MBA/ALTA Model Legislation for Online Notarization, which in turn has several provisions that are derived from the NNA's Model Notary Act. To perform online notarizations, one must be a Notary Public first. Notaries wishing to perform online notarizations must register first and part of the registration process is to take a course and pass an exam on online notarization. Much of the rest of the bill conforms to the remote online notarization laws enacted elsewhere across the U.S.

Read the bill text.

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