Hawaii-2020-SB562-Introduced

SECTION 1. The legislature finds that electronic communications make it possible to perform notarial acts by new means. Some of the earliest transactions governed by law are notarial acts performed by words inscribed on paper with manual signatures and physical impressions of notarial seals. However, technology has advanced and audio and visual communications between individuals performed by electronic means are increasingly replacing in-person communications, just as electronic records are increasingly replacing paper documents. The legislature further finds that the public will benefit from the use of modern technology to obtain notarial services; provided that consumer protections are in place to protect against incidents of fraud.

The purpose of this Act is to permit notaries public to perform notarial acts utilizing electronic documents with electronic signatures and seals, without the necessity of the notary public and the individual requesting the notarial services being in the same physical location; provided that the notary and the individual can communicate with each other simultaneously by sight and sound by means of communication technology.

SECTION 2. Chapter 456, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§456- Notarial acts performed for remotely located individual. (a) For purposes of this section, the following definitions shall apply:

"Communication technology" means an electronic device or process that:

(1) Allows a notary public and a remotely located individual to communicate with each other simultaneously by sight and sound; and

(2) When necessary and consistent with other applicable law, facilitates communication with a remotely located individual who has a vision, hearing, or speech impairment.

"Foreign state" means a jurisdiction other than the United States, a state, or a federally recognized Indian tribe.

"Identity proofing" means a process or service by which a third person provides a notary public with a means to verify the identity of a remotely located individual by a review of personal information from public or private data sources.

"Outside the United States" means a location outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, and any territory, insular possession, or other location subject to the jurisdiction of the United States.

"Remotely located individual" means an individual who is not in the physical presence of the notary public who performs a notarial act under this section.

(b) A remotely located individual may comply with this section by using communication technology to appear before a notary public.

(c) A notary public located in this State may perform a notarial act using communication technology for a remotely located individual if:

(1) The notary public:

(A) Has personal knowledge of the individual as defined in this chapter;

(B) Has satisfactory evidence of the identity of the remotely located individual by oath or affirmation from a credible witness appearing before the notary public under this section; or

(C) Has obtained satisfactory evidence of the identity of the remotely located individual by using at least two different types of identity proofing;

(2) The notary public is able to reasonably confirm that a record before the notary public is the same record in which the remotely located individual made a statement or on which the individual executed a signature;

(3) The notary public, or a person acting on behalf of the notary public, creates an audio visual recording of the performance of the notarial act; and

(4) For a remotely located individual located outside the United States:

(A) The record:

(i) 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

(ii) The record involves property located in the territorial jurisdiction of the United States or involves a transaction substantially connected with the United States; and

(B) The act of making the statement or signing the record is not prohibited by the foreign state in which the remotely located individual is located.

(d) If a notarial act is performed under this section, any certificate of notarial act required by this chapter must indicate that the notarial act was performed using communication technology.

(e) A notary public, a guardian, conservator, or agent of a notary public, or a personal representative of a deceased notary public shall retain the audio visual recording created under this section or cause the recording to be retained by a repository designated by or on behalf of the person required to retain the recording. Unless a different period is required by rule adopted under this section, the recording shall be retained for a period of at least ten years after the recording is made.

(f) Before a notary public performs the notary public's initial notarial act under this section, the notary public shall notify the attorney general that the notary public will be performing notarial acts with respect to remotely located individuals and identify the technologies the notary public intends to use. If the attorney general has established standards under this section for approval of communication technology or identity proofing, the communication technology and identity proofing shall conform to the standards.

(g) In addition to adopting rules under this section and pursuant to chapter 91, the attorney general may adopt rules regarding performance of a notarial act involving a remotely located individual using communication technology, including:

(1) Prescribing the means of performing a notarial act involving a remotely located individual using communication technology;

(2) Establishing standards for communication technology and identity proofing;

(3) Establishing requirements or procedures to approve providers of communication technology and the process of identity proofing; and

(4) Establishing standards and a period for the retention of an audio visual recording created under this section.

(h) Before adopting, amending, or repealing a rule governing performance of a notarial act with respect to a remotely located individual, the attorney general shall consider:

(1) The most recent standards regarding the performance of a notarial act with respect to a remotely located individual promulgated by national standard-setting organizations and the recommendations of the National Association of Secretaries of State;

(2) The standards, practices, and customs of other jurisdictions that have laws substantially similar to this section; and

(3) The views of governmental officials and entities and other interested persons.

(i) By allowing its communication technology or identity proofing to facilitate a notarial act for a remotely located individual or by providing storage of the audio visual recording created under this section, the provider of the communication technology, identity proofing, or storage appoints the attorney general as the provider's agent for service of process in any civil action in this state related to the notarial act."

SECTION 3. Section 456-1.6, Hawaii Revised Statutes, is amended by amending the definition of "personally knowing" to read as follows:

""Personally knowing" or "personal knowledge" means having an acquaintance, derived from association with the individual, which establishes the individual's identity with at least a reasonable certainty."

SECTION 4. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	562
THIRTIETH LEGISLATURE, 2019
STATE OF HAWAII