FL Administrative Rules (2010)

Rule/Regulation

State: Florida

Effective: January 26, 2010

Summary

In 2007, the Florida Legislature enacted electronic notarization laws which authorized the Department of State to adopt rules to ensure the security, reliability, and uniformity of signatures and seals to be utilized in performing electronic notarizations. These rules provide important definitions, establish the manner in which a signature and seal information must be electronically affixed and the assurance level of security needed to insure reliability and uniformity.

Affects

Amends Section Chapter 1N-5 of the Florida Administrative Code.

Changes

Defines the following terms which describe a Notary’s electronic signature: (a) “attached to or logically associated with”; (b) “capable of independent verification”; (c) “unique to the notary public”; and (d) “retained under the notary public’s sole control.”
Defines “public key certificate” as a computer-based record that: (a) identifies the certification authority issuing it; (b) names or identifies its subscriber; (c) contains the subscriber’s public key; and (d) is digitally signed by the certification authority issuing it.
Defines an “electronic notary system” as a set of applications, programs, hardware, software or technology designed to enable a Notary to perform electronic notarizations.
Permits a Notary to affix an electronic signature and seal information by means of a (a) public key certificate that is issued at the third or higher level of assurance as defined by the U. S. National Institute of Standards and Technology (NIST) Special Publication 800-63, Electronic Authentication Guideline Version 1.0.2; or (b) electronic Notary system.
Requires a Notary to take reasonable steps to ensure the security, reliability and uniformity of electronic notarizations, by using an authentication procedure, such as a password, token, card or biometric, to protect access to the notary’s electronic signature or the means for affixing the signature.

Analysis

In 2007 the Florida Legislature initiated electronic notarization in Florida by enacting Chapter 2007-257 of the Laws of Florida. This was codified as Section 117.021, Florida Statutes. Subsection (5) of this section authorizes the Department of State to adopt rules to ensure the security, reliability, and uniformity of signatures and seals to be utilized in the electronic notarization process. This rule establishes the manner in which a signature and seal information must be electronically affixed and the assurance level of security needed to insure reliability and uniformity. The law and the rule do not assign any regulatory responsibilities on the Department. The rule establishes a mechanism by which a duly commissioned Notary Public is enabled to notarize documents electronically in a secure, reliable, and uniform manner.

Final rule 1N-5.001 contains important definitions of terms which describe a Notary’s electronic signature. These characteristics, which first appeared in the digital signature laws enacted by several other states, was subsequently made part of the National Association of Secretaries of State National eNotarization Standards and incorporated into the newly-released Model Notary Act of 2010.

The NNA was consulted to assist the Department of State in drafting the rules. Final rule 1N-5.002 strike an important balance by permitting a Notary to use either PKI technology (public key certificate) for affixing an electronic signature and the information from a Notary’s official seal or an “electronic notary system,” a technology-neutral term embracing many different processes. Use of the phrase “seal information” in Rule 1N-5.002(3), (4) and (5) indicates that in performing an electronic notarization a Notary need only to include the information contained in the Notary’s official physical seal and not affix an image of this seal.

Read the adopted administrative rules.