Bill Text: NY A00399 | 2021-2022 | General Assembly | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Relates to providing for electronic notarization; authorizes the use of video and audio conference technology in identifying individuals for electronic notarization.

Spectrum: Moderate Partisan Bill (Democrat 16-2)

Status: (Introduced - Dead) 2021-06-09 - substituted by s1780c [A00399 Detail]

Download: New_York-2021-A00399-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                         399--A

                               2021-2022 Regular Sessions

                   IN ASSEMBLY

                                       (Prefiled)

                                     January 6, 2021
                                       ___________

        Introduced  by M. of A. ROZIC, DE LA ROSA, FAHY, SEAWRIGHT, OTIS, SIMON,
          HUNTER, BUTTENSCHON, STECK, MONTESANO -- Multi-Sponsored by --  M.  of
          A.   ENGLEBRIGHT -- read once and referred to the Committee on Govern-
          mental Operations  --  committee  discharged,  bill  amended,  ordered
          reprinted as amended and recommitted to said committee

        AN  ACT  to  amend the executive law, in relation to providing for elec-
          tronic notarization

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1. The executive law is amended by adding a new section 137-a
     2  to read as follows:
     3    § 137-a. Electronic notarization. 1.  Definitions. (a)  "Communication
     4  technology"  means  an  electronic  device or process that: (i) allows a
     5  notary public and a remotely located individual to communicate with each
     6  other simultaneously by sight and sound; and  (ii)  when  necessary  and
     7  consistent  with  other applicable law, facilitates communication with a
     8  remotely located individual who has a vision, hearing, or speech impair-
     9  ment.
    10    (b) "Electronic" shall have the same meaning as set forth in  subdivi-
    11  sion one of section three hundred two of the state technology law.
    12    (c)  "Electronic  document"  means information that is created, gener-
    13  ated, sent, communicated, received or stored by electronic means.
    14    (d) "Electronic notarial act" means an official act by a notary public
    15  on or involving an electronic document and using means authorized by the
    16  secretary of state.
    17    (e) "Electronic notary public" or "electronic notary" means  a  notary
    18  public  who has registered with the secretary of state the capability of
    19  performing electronic notarial acts.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03271-07-1
        A. 399--A                           2

     1    (f) "Electronic signature" shall have the same meaning as set forth in
     2  subdivision three of section three hundred two of the  state  technology
     3  law.
     4    (g)  "Electronic notarial statement of authority" means the portion of
     5  a notarized electronic document that is completed by a notary public and
     6  contains the notary public's electronic signature  and  all  information
     7  required by section one hundred thirty-seven of this article.
     8    (h)  "Notary  electronic  signature"  means  those forms of electronic
     9  signature, which have been approved by the  secretary  of  state  as  an
    10  acceptable  means  for an electronic notary to affix the notary public's
    11  official signature to an electronic record that is being notarized.
    12    (i) "Remotely located individual" means an individual who  is  not  in
    13  the  physical  presence of the notary public at the time of the notarial
    14  act.
    15    2. Identifying document signers.   (a)  The  methods  for  identifying
    16  document signers for an electronic notarization shall be the same as the
    17  methods  required  for a paper-based notarization; provided, however, an
    18  electronic notarization  conducted  utilizing  communication  technology
    19  shall meet the following standards:
    20    (i)  the signal transmission shall be secure from interception through
    21  lawful means by anyone other than the persons communicating;
    22    (ii) the signal transmission shall be live, in real time; and
    23    (iii) the technology shall permit the notary to communicate  with  and
    24  identify  the  remotely  located  individual at the time of the notarial
    25  act, provided that such identification is confirmed by:
    26    (A) personal knowledge;
    27    (B) an antecedent in-person identity verification process  in  accord-
    28  ance with the specifications of the federal bridge certification author-
    29  ity; or
    30    (C)  each  of  the  following:  (1)  remote presentation by the person
    31  creating the electronic signature of a government issued  identification
    32  credential,  including  such person's passport or driver's license, that
    33  contains the signature and a photograph of such person;  (2)  credential
    34  analysis; and (3) identity proofing.
    35    (b)  If  video and audio conference technology has been used to ascer-
    36  tain a document signer's identity, the electronic notary  shall  keep  a
    37  copy  of  the recording of the video and audio conference and a notation
    38  of the type of any other identification used.  The  recording  shall  be
    39  maintained  for  a  period of at least ten years from the date of trans-
    40  action.
    41    (c) For purposes of this subdivision: (i) "credential analysis"  means
    42  a  process or service that meets the standards established by the secre-
    43  tary of state through which a third person affirms  the  validity  of  a
    44  government-issued identification credential through review of public and
    45  proprietary data sources; and
    46    (ii)  "identity proofing" means a process or service operating accord-
    47  ing to standards established by the secretary of state through  which  a
    48  third  person  affirms  the  identity  of an individual: (A) by means of
    49  dynamic knowledge based authentication such  as  a  review  of  personal
    50  information  from public or proprietary data sources; or (B) by means of
    51  analysis of biometric data such as, but not limited to, facial  recogni-
    52  tion, voiceprint analysis, or fingerprint analysis.
    53    3.  Registration  requirements.  (a)  Before performing any electronic
    54  notarial act or acts, a notary public shall register the  capability  to
    55  notarize electronically with the secretary of state on a form prescribed
    56  by the secretary of state.
        A. 399--A                           3

     1    (b) In registering the capability to perform electronic notarial acts,
     2  the  notary public shall provide the following information to the secre-
     3  tary of state, notary processing unit:
     4    (i)  the applicant's name as currently commissioned and complete mail-
     5  ing address;
     6    (ii) the expiration date of the notary public's commission and  signa-
     7  ture of the commissioned notary public;
     8    (iii) the applicant's e-mail address;
     9    (iv)  the  description of the electronic technology or technologies to
    10  be used in attaching the notary public's  electronic  signature  to  the
    11  electronic document; and
    12    (v)  an  exemplar  of  the notary public's electronic signature, which
    13  shall contain the notary public's name and any necessary instructions or
    14  techniques that allow the notary public's  electronic  signature  to  be
    15  read.
    16    4.  Types of electronic notarial acts. (a) Any notarial act authorized
    17  by section one hundred thirty-five of  this  article  may  be  performed
    18  electronically  as  prescribed  by this section if: (i) under applicable
    19  law that document may be signed with an electronic signature;  and  (ii)
    20  the  electronic notary public is located within the state at the time of
    21  the performance of an electronic notarial act using communication  tech-
    22  nology, regardless of the location of the document signer.
    23    (b) An electronic notarial act performed using communication technolo-
    24  gy  pursuant  to  this  section satisfies any requirement of law of this
    25  state that a document signer personally appear before, be in  the  pres-
    26  ence  of,  or  be in a single time and place with a notary public at the
    27  time of the performance of the notarial act.
    28    5. Form and manner of performing the electronic notarial act. (a) When
    29  performing an electronic notarial act, a notary public  shall  apply  an
    30  electronic signature, which shall be attached to or logically associated
    31  with  the  electronic  document  such that removal or alteration of such
    32  electronic signature is detectable and will render  evidence  of  alter-
    33  ation  of the document containing the notary signature which may invali-
    34  date the electronic notarial act.
    35    (b) The notary public's electronic signature is deemed to be  reliable
    36  if  the  following  requirements are met: (i) it is unique to the notary
    37  public;
    38    (ii) it is capable of independent verification;
    39    (iii) it is retained under the notary public's sole control;
    40    (iv) it is attached to or logically  associated  with  the  electronic
    41  document; and
    42    (v)  it  is  linked  to  the data in such a manner that any subsequent
    43  alterations to the underlying document are detectable and may invalidate
    44  the electronic notarial act.
    45    (c) The notary public's electronic signature shall be  used  only  for
    46  the purpose of performing electronic notarial acts.
    47    (d)  The remote online notarial certificate for an electronic notarial
    48  act shall state that the person making the acknowledgement or making the
    49  oath appeared remotely online.
    50    (e) The secretary shall adopt rules necessary to establish  standards,
    51  procedures,  practices, forms, and records relating to a notary public's
    52  electronic signature. The notary  public's  electronic  signature  shall
    53  conform to any standards adopted by the secretary.
    54    6.    Recording  of an electronic record. (a) If otherwise required by
    55  law as a condition for recording that a document be  an  original  docu-
    56  ment, printed on paper or another tangible medium, or be in writing, the
        A. 399--A                           4

     1  requirement  is  satisfied  by  paper  copy of an electronic record that
     2  complies with the requirements of this section.
     3    (b)  If otherwise required by law as a condition for recording, that a
     4  document be signed, the requirement is satisfied by an electronic signa-
     5  ture.
     6    (c) A requirement that a document or a  signature  associated  with  a
     7  document  be notarized, acknowledged, verified, witnessed, or made under
     8  oath is satisfied if the electronic signature of the  person  authorized
     9  to  perform that act, and all other information required to be included,
    10  is attached to or logically associated with the document or signature. A
    11  physical or electronic image of a stamp, impression, or  seal  need  not
    12  accompany  an  electronic  signature if the notary has attached an elec-
    13  tronic notarial certificate that meets the requirements of this section.
    14    7.  Change of e-mail address. Within five days after the change of  an
    15  electronic notary public's e-mail address, the notary public shall elec-
    16  tronically  transmit  to  the secretary of state a notice of the change,
    17  signed with the notary public's official electronic signature.
    18    § 2. Section 136 of the executive law, as amended by  chapter  143  of
    19  the laws of 1991, is amended to read as follows:
    20    § 136. Notarial  fees.  A  notary  public  shall  be  entitled to [the
    21  following] fees[:
    22    1. For administering an oath or affirmation, and certifying  the  same
    23  when  required,  except  where another fee is specifically prescribed by
    24  statute, two dollars.
    25    2. For taking and certifying the acknowledgment or proof of  execution
    26  of  a  written instrument, by one person, two dollars, and by each addi-
    27  tional person, two dollars,  for  swearing  each  witness  thereto,  two
    28  dollars],  including  for electronic notarial services, as authorized by
    29  the secretary of state.
    30    § 3. This act shall take effect on the ninetieth day  after  it  shall
    31  have become a law. Effective immediately, the addition, amendment and/or
    32  repeal  of  any  rule  or regulation necessary for the implementation of
    33  this act on its effective date are authorized to be made  on  or  before
    34  such effective date.