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Law

OK Senate Bill 915

Notary Law Update: OK Senate Bill 915

State: Oklahoma

Summary:

Oklahoma becomes the twentieth state overall to authorize remote online notarization.

Signed:  May 09, 2019

Effective:  January 01, 2020

Chapter: TBD

Affects:

Adds Section 87 of Title 18 and Sections 201 through 2014 of Title 49, and amends Section 5 of Title 49 of the Oklahoma Statutes.

Changes:

Definitions

  1. Defines “communication technology,” “credential analysis,” “document,” “electronic,” “electronic document,” “electronic record,” “electronic seal,” “electronic signature,” “foreign state,” “identity proofing,” “notarial act,” “outside the United States,” “person,” “personal knowledge,” “principal,” “remote online notarization,” “remote presentation,” “remotely located individual” and “state.”

Notarial and Remote Online Notarial Acts

  1. Clarifies that a Notary may certify that a paper or tangible copy of an electronic document is a true and correct copy.
  2. Requires a Notary who certifies that a paper or tangible copy of an electronic document is a true and correct copy to: (a) reasonably confirm that the electronic document is in a tamper-evident format; (b) determine that no changes or errors in any electronic signature or other information in the electronic document has been detected; (c) personally printed or supervised the printing of the electronic document onto paper or other tangible medium; and (d) not make any changes or modifications to the electronic document or to the paper or tangible copy thereof other than the certification of the copy.
  3. Requires a certified paper or tangible copy of an electronic document to be evidenced by a certificate completed in compliance with 49 OS 118.
  4. Provides a certificate form for a certified paper or tangible copy of an electronic document.
  5. Clarifies that the new copy certification procedures does not apply to a plat, plan, map or survey of real property if under another law of Oklahoma or a rule, regulation or ordinance applicable to a county clerk: (a) there are requirements of format or medium for the execution, creation or recordation of such plat, plan, map or survey beyond the requirements applicable to a deed to real property; or (b) such plat, plan, map or survey shall be recorded in a different location than a deed to real property.
  6. Clarifies that the Remote Online Notary Act does not permit a Notary to take testimony, certify transcripts, or otherwise exercise any authority of a certified or licensed shorthand reporter, as provided in Sections 1501 through 1513 of Title 20 of the Oklahoma Statutes.
  7. Authorizes a Notary physically located in Oklahoma and authorized to perform remote online notarizations to perform a notarial act by means of communication technology for a remotely located individual who is physically located: (a) in Oklahoma; (b) outside Oklahoma but not outside the United States; or (c) outside the United States.
  8. Authorizes a Notary physically located in Oklahoma and authorized to perform remote online notarizations to perform a notarial act by means of communication technology for a remotely located individual who is physically located outside the United States if: (a)  the electronic record is to be filed with or relates to a matter before a court, governmental entity, public official or other entity subject to the jurisdiction of the United States, or involves property located in the territorial jurisdiction of the United States or a transaction substantially connected to the United States, and (b) the Notary has no actual knowledge that the act of making the statement or signing the electronic record is prohibited by the foreign state in which the remotely located individual is located.
  9. Authorizes a Notary to charge a maximum fee of $25 for a remote online notarization.

Online Notarization Registration

  1. Requires a Notary to register with the Secretary of State to perform remote online notarizations before the Notary performs the Notary’s initial remote online notarization.
  2. Authorizes an individual to apply for a Notary commission and apply for remote online registration at the same time.
  3. Sets a $25 application fee for applying to perform remote online notarizations.
  4. Requires the application for remote online notarization to include: (a) the full legal name of the applicant and the applicant’s official name as it appears on the applicant’s Notary commission; (b) a description of the technology the applicant intends to use in performing remote online notarizations; (c) a statement that the applicant will comply with the standards under 49 OS 203; and (d) any other information the Secretary of State may by rule require.
  5. Provides that if the technology identified by the applicant conforms to the standards under 49 OS 203 and the applicant has satisfied the requirements for application, the Secretary of State shall approve the use of the technology and issue to the applicant written authorization to perform remote online notarizations.
  6. Authorizes the Secretary of State to deny a Notary’s application for registration to perform remote online notarizations under the following circumstances: (a) for a reason for which the Secretary of State may deny, refuse to renew or revoke a Notary commission; (b) or a violation of the rules 49 OS 203; (c) if the technology identified by the Notary does not conform to the standards under 49 OS 203; or (d) f any information on the application is missing, inaccurate or incomplete.
  7. Clarifies that the term of a Notary’s authorization to perform remote online notarizations begins on the authorization date set by the Secretary of State and terminates on the commission’s expiration date.
  8. Provides that the renewal of a Notary’s commission does not constitute the renewal of the Notary’s authorization to perform remote online notarizations.
  9. Provides that a Notary’s authorization to perform remote online notarizations terminates if: (a) the Notary’s name changes during the term of the Notary’s commission; and (b) the Notary elects to use the Notary’s new name under a new commission.
  10. Provides that nothing in this section containing the requirements for application for registration to perform remote online notarizations shall be construed as prohibiting a Notary from receiving, installing or utilizing a hardware or software update to the technology that the Notary identified to the Secretary of State if the hardware or software update does not result in a technology that is materially different from the technology that the Notary identified.

Electronic Records of Remote Online Notarizations

  1. Requires a Notary to maintain a journal in a permanent, tamper-evident electronic format complying with standards promulgated by the Secretary of State in which the Notary chronicles all remote online notarial acts that the Notary performs.
  2. Requires an entry in a journal to be made contemporaneously with the performance of the remote online notarial act and contain the following: (a) the date and time of the remote online notarial act; (b) a description of the document, if any, and type of notarial act; (c) the full name and address of each principal for whom the notarial act is performed; (d) if the identity of the principal is based on personal knowledge, a statement to that effect; (e) if identity of the principal is based on credential analysis and identity proofing, a brief description of the results of the identity verification process and the identification credential remotely presented, including the date of issuance and expiration of the identification credential; (f) if identity of the principal is based on oath or affirmation of a credible witness, the information, as applicable, that provided a basis for the Notary’s identification of the credible witness by means of personal knowledge or through credential analysis and identity proofing, a statement of the basis by which the credible witness claims personal knowledge of the principal, the location of the credible witness, and the full name and address of the credible witness; and (g) the fee, if any, charged by the Notary.
  3. Requires a Notary, or a person acting on behalf of the Notary, to create an audio and visual recording of the performance of each remote online notarial act.
  4. Requires a Notary to take reasonable steps maintain a backup of the journal and the audio and visual recording and protect the backup from unauthorized use.
  5. Requires a Notary, a guardian, conservator or agent of the Notary, or a personal representative of a deceased Notary to retain the journal and the audio and visual recording or cause the journal and the recording to be retained by a depository designated by or on behalf of the person required to retain the journal and the recording.
  6. Provides that the recordings of remote online notarizations must be retained for at least 10 years from the date of the remote online notarial act, and the journal must be retained for at least 10 years after the performance of the last remote online notarial act chronicled in the journal.

Identification of Principals for Remote Online Notarization

  1. Requires a Notary to reasonably verify the identity of the principal for a remote online notarial act by: (a) the Notary’s personal knowledge of the principal; (b) remote presentation by the principal of a current government-issued identification credential containing the photograph and signature of the principal, credential analysis of the identification credential, and identity proofing of the principal; or
  2. (c) the oath or affirmation of a credible witness who personally knows the principal if the credible witness is personally known to the Notary, or the Notary has reasonably verified the identity of the credible witness using remote presentation of an ID, credential analysis of that ID and identity proofing.
  3. Authorizes a Notary to require a principal or credible witness to provide additional information necessary to assure the Notary of the identity of the principal or credible witness.
  4. Authorizes a Notary to refuse to perform a remote online notarial act if the Notary is not satisfied as to the identity of a principal.
  5. Allows a credible witness to be physically present with a principal at the time of a remote online notarial act and communicate with the Notary by means of communication technology or be physically present with a Notary at the time of a remote online notarial act and communicate with the principal by means of communication technology.

Electronic Signature, Seal and Certificate of Remote Online Notarization

  1. Clarifies that a Notary’s use of an electronic signature and electronic seal satisfies the requirement of 49 OS 5 that a Notary authenticate an official act with an official signature and seal of office.
  2. Requires an electronic seal to legibly reproduce the elements of a Notary seal as provided under 49 OS 5.
  3. Requires a Notary to attach or logically associate the Notary’s electronic signature and electronic seal to the certificate of a remote notarial act in a tamper-evident format.
  4. Requires the Notary’s electronic seal to be capable of being copied together with the electronic record to which it is attached or with which it is logically associated.
  5. Requires the certificate of a remote online notarial act to be attached to or logically associated with the electronic record that is the subject of the remote online notarial act.
  6. Requires the certificate of notarial act for a remote online notarization shall indicate that the act was a remote online notarial act performed by means of communication technology.
  7. Provides that a certificate for a remote online notarial act is sufficient if it complies with standards under 49 OS 203 or is in a form otherwise sufficient under Oklahoma law and contains a statement substantially as follows: “This remote online notarization involved the use of communication technology.”
  8. Provides that if the Secretary of State has approved standards under 49 OS 203 for attaching or logically associating the electronic signature, electronic seal or certificate of remote online notarial act, the process shall conform to the standards.
  9. Provides that unless required as part of the application for registration to perform remote online notarizations, a Notary is not required to submit an image of the Notary’s electronic seal to the Secretary of State, and further clarifies that a Notary’s electronic seal is not subject to the requirement that an impression be filed with and approved by the Secretary of State under 49 OS 2.

Security of Remote Online Notarizations

  1. Requires a Notary to take reasonable steps to ensure the integrity, security and authenticity of remote online notarial acts.
  2. Requires a Notary to reasonably identify the electronic record before the Notary as the same electronic record in which the principal made a statement or on which the principal executed or adopted an electronic signature before performing a remote online notarial act.
  3. Requires a Notary to take reasonable steps to ensure that the communication technology used in the remote online notarial act is secure from unauthorized interception before performing a remote online notarial act.
  4. Requires a Notary to take reasonable steps to protect the Notary’s electronic seal from unauthorized use.
  5. Prohibits a Notary from allowing another person to use the Notary’s electronic seal.
  6. Requires a Notary to immediately notify an appropriate law enforcement agency and the Secretary of State upon actual knowledge of the theft or vandalism of the Notary’s journal or electronic seal.
  7. Requires a Notary to immediately notify the Secretary of State upon actual knowledge of the loss or use by another person of the Notary’s journal or electronic seal.

Legal Recognition and Validity of Remote Online Notarizations

  1. Clarifies that a remote online notarization satisfies any requirement of Oklahoma law that a principal appear before, appear personally before, or be in the physical presence of a Notary at the time of the performance of the notarial act.
  2. Clarifies that a Notary’s verification of a principal’s identity under the remote notarization statutes constitutes satisfactory evidence of identity of the principal and satisfies any requirement of Oklahoma law that the Notary obtain satisfactory evidence of identity of the principal.
  3. Clarifies that the failure of a Notary to perform a duty or meet a requirement specified in remote online notarization statutes does not invalidate a remote online notarial act performed by the Notary.
  4. Provides that the validity granted to a remote online notarial act does not prevent an aggrieved person from seeking to invalidate the electronic record or transaction that is the subject of the remote online notarial act or from seeking other remedies based on Oklahoma law other than this chapter or based on law of the United States.
  5. Clarifies that the validity extended to remote online notarial acts does not validate a purported remote online notarial act performed by an individual who does not have the authority to perform remote online notarial acts.
  6. Clarifies that the validity of a remote online notarization performed under the Remote Online Notary Act is determined by applying the laws of Oklahoma, regardless of the physical location of the principal at the time of the remote online notarization.
  7. Provides that in the event of a conflict between a provision of the Remote Online Notary Act and another provision of Title 49 of the Oklahoma Statutes or any other Oklahoma law, the provision of the Remote Online Notary Act controls.

Rules

  1. Requires the Secretary of State to promulgate rules to implement and ensure the effective administration of the Remote Online Notary Act and Sections 1 through 12 of Title 49 of the Oklahoma Statutes.
  2. Requires the rules promulgated by the Secretary of State to provide standards for: (a) ensuring integrity in the creation, transmittal, storage and authentication of electronic signatures, electronic seals and electronic records; (b) the means of performing remote online notarial acts; (c) communication technology, credential analysis and identity proofing; (d) the retention of journals and audio and visual recordings under Section 7 of the act; (e) sufficient forms of notarial certificates for remote online notarizations; and (f) other matters as deemed necessary by the Secretary of State to implement and administer the provisions of Oklahoma’s Notary and remote online notarization statutes.
Analysis:

After first being introduced in 2018, the Remote Online Notary Act has been enacted in Oklahoma and takes effect January 1, 2020. SB 915 is a combination of the three major models of remote online notarization legislation: the amendments to the Revised Uniform Law on Notarial Acts, the NNA’s Model Electronic Notarization Act and the ALTA/MBA Model Legislation. The Act requires Notaries wanting to perform online notarizations to register first with the Secretary of State. The Act contains most of the provisions enacted in the majority of other states, ensuring a level of uniformity with those states.

Read the bill text.

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