AB293: Bill Text

AB293,10,11 (d) 1. An online notarization system provider may not authorize use of its electronic notarization system by any person other than an online notary public holding a commission under sub. (2m). An online notarization system provider shall establish a method for enrolling online notaries public authorized to use its electronic notarization system.

AB293,10,14 2. Within 5 days after enrolling an online notary public to use its electronic notarization system, an online notarization system provider shall notify the department of the name of the online notary public.

AB293,10,18 (e) Each online notarization system provider shall take reasonable steps to ensure that any online notary public authorized to use its electronic notarization system has the requisite knowledge to perform electronic notarial acts using the system.

AB293,10,20 (f) An online notarization system provider shall ensure that all of the following requirements are satisfied with respect to its electronic notarization system:

AB293,10,23 1. The electronic notarization system incorporates security measures to limit system access and complies with all security standards established by the department under sub. (13) (a) 5.

AB293,11,2 2. The electronic notarization system allows an online notary public to affix the online notary public's electronic signature and electronic notarial seal in a manner that attributes the electronic notarial act to the online notary public and renders the electronic notarial act tamper-evident.

AB293,16 Section 16. 137.01 (11) of the statutes is created to read:

AB293,11,10 137.01 (11) Termination of notary public's commission; destruction of hardware or software. (a) Except as provided in par. (b), if a notary public maintains any coding, disk, certificate, card, software, or password that enables the notary public's electronic signature or electronic seal to be affixed and if the notary public's commission is terminated, the notary public shall destroy the coding, disk, certificate, card, software, or password within 3 months of termination of the notary public's commission.

AB293,11,15 (b) If a notary public's commission is terminated for any reason other than revocation or denial of renewal, the notary public is not required to destroy the coding, disk, certificate, card, software, or password as described in par. (a) if the notary public is recommissioned within 3 months and keeps the same electronic signature and electronic seal.

AB293,17 Section 17. 137.01 (12) of the statutes is created to read:

AB293,11,20 137.01 (12) Wrongful possession or destruction of software or hardware. Any person who knowingly obtains or destroys, without prior authorization, a certificate, disk, coding, card, program, software, or hardware that enables a notary public's electronic signature or electronic seal to be affixed is guilty of a Class I felony.

AB293,18 Section 18. 137.01 (13) of the statutes is created to read:

AB293,11,23 137.01 (13) Rule making. (a) The department shall promulgate rules that do all of the following:

AB293,11,25 1. Establish standards for online notaries public holding a commission under sub. (2m).

AB293,12,2 2. Establish a minimum period during which online notaries public shall retain evidence of online notarizations.

AB293,12,5 3. Require applicants for appointment as an online notary public under sub. (2m) to complete a course of instruction and identify all courses of instruction approved by the department to satisfy this requirement.

AB293,12,6 4. Specify the electronic notarial seals described in sub. (3) (c).

AB293,12,8 5. Establish security standards for accessing electronic notarization systems maintained by online notarization system providers under sub. (10).

AB293,12,9 (b) The department may promulgate rules that do any of the following:

AB293,12,11 1. Establish maximum fees that may be charged by an online notary public for performing an online notarization.

AB293,12,13 2. Establish any other standard or requirement, not inconsistent with this section and s. 137.195, relating to online notaries public and online notarizations.

AB293,19 Section 19. Subchapter II (title) of chapter 137 [precedes 137.11] of the statutes is amended to read:

AB293,12,16 CHAPTER 137

AB293,12,20 SUBCHAPTER II ELECTRONIC TRANSACTIONS AND RECORDS; ELECTRONIC NOTARIZATION AND ACKNOWLEDGEMENT

AB293,20 Section 20. 137.11 (8) of the statutes is amended to read:

AB293,12,24 137.11 (8) “Electronic signature" means an electronic sound, symbol, or process attached to, incorporated into, or logically associated with a record and executed or adopted by a person with the intent to sign the record.

AB293,21 Section 21. 137.19 of the statutes is amended to read:

AB293,13,6 137.19 Notarization and acknowledgement. If a law requires a signature or record to be notarized, acknowledged, verified, or made under oath, the requirement is satisfied if the electronic signature of the person authorized to administer the oath or to make the notarization, acknowledgment, or verification, together with all other information required to be included by other applicable law, is attached to, incorporated into, or logically associated with the signature or record.

AB293,22 Section 22. 137.195 of the statutes is created to read:

AB293,13,8 137.195 Online notarization. (1) Definitions. In this section:

AB293,13,9 (a) “Credential” means a tangible record evidencing the identity of a person.

AB293,13,13 (b) “Credential analysis" means a process or service that complies with any rules promulgated by the department through which a 3rd party affirms the validity of a government-issued credential or any data thereon through review of public and proprietary data sources.

AB293,13,17 (c) “Communication technology” means an electronic device or process that allows an individual physically in one location and a notary public physically located at another location in this state to communicate with each other in real time by sight and sound.

AB293,13,18 (d) “Department” means the department of financial institutions.

AB293,13,22 (e) “Identity proofing" means a process or service operating according to criteria approved by the department through which a 3rd party affirms the identity of an individual through review of personal information from public and proprietary data sources.

AB293,13,25 (f) “Online notarial act" or “online notarization” means a notarial act, as defined in s. 706.07 (1) (c), performed by means of communication technology that meets the standards established by the department.

AB293,14,2 (g) “Online notary public” means a person appointed and holding a commission under s. 137.01 (2m).

AB293,14,3 (h) “Principal" means any of the following:

AB293,14,5 1. An individual whose electronic signature is notarized in an online notarization.

AB293,14,7 2. An individual taking an oath or affirmation from an online notary public but not in the capacity of a witness for the online notarial act.

AB293,14,9 (i) “Real time” means the actual span of uninterrupted time during which all parts of an online notarial act occur.

AB293,14,12 (j) “Remote presentation" means the transmission to an online notary public through communication technology of an image of a government-issued credential that is of sufficient quality to enable the online notary public to do all of the following:

AB293,14,13 1. Identify the individual appearing before the online notary public.

AB293,14,14 2. Perform a credential analysis.

AB293,14,16 (k) “United States” has the meaning given in s. 990.01 (44) but also includes a tribe, as defined in s. 822.02 (16).

AB293,14,19 (2) Authority to perform online notarizations. (a) An online notary public may perform online notarial acts for a person who is physically located in the United States.

AB293,14,21 (am) An online notary public may perform online notarial acts for a person who is physically located outside the United States if all of the following apply:

AB293,14,24 1. The online notarial act is not, to the notary's actual knowledge, prohibited in the jurisdiction where the person is physically located at the time of the online notarial act.

AB293,14,25 2. The online notarial act relates to any of the following:

AB293,15,2 a. A matter that is before a court, a governmental entity, or another entity in the United States.

AB293,15,3 b. Property located in the United States.

AB293,15,4 c. A transaction substantially connected to the United States.

AB293,15,6 (b) An online notary public must be physically located in this state in order to perform the online notarial act.

AB293,15,11 (3) Online notarization procedures. (a) An online notary public shall verify the identity of the person creating the electronic signature at the time the signature is taken by using communication technology that meets the requirements of this section and rules promulgated by the department. The identity may be verified by any of the following:

AB293,15,13 1. The online notary public's personal knowledge of the person creating the electronic signature.

AB293,15,14 2. The occurrence of all of the following:

AB293,15,17 a. The principal's remote presentation of a government-issued credential, including a passport or operator's license, that contains a signature and photograph of the principal.

AB293,15,19 b. The online notary public's application of credential analysis to the credential under subd. 2. a.

AB293,15,21 c. The online notary public's use of identity proofing with respect to the principal making the remote presentation under subd. 2. a.

AB293,15,24 (b) The online notary public shall take reasonable steps to ensure that the communication technology used for the online notarization is secure from unauthorized use.

AB293,16,3 (c) A principal for whom an online notarization is performed under this section is considered, for purposes of any other law, to appear personally before and be in the physical presence of the online notary public at the time of the online notarial act.

AB293,16,7 (d) 1. For each online notarial act performed under this section, the online notary public shall prepare an electronic certificate of notarial act that satisfies the requirements for a certificate of notarial act under s. 706.07 (7) and (8) except to the extent provided in subds. 2. to 4.

AB293,16,15 2. The electronic certificate of notarial act for an online notarial act shall clearly indicate that the principal appeared by remote presentation, and the face of the notarized record shall clearly indicate that it was notarized by means of an online notarial act. For purposes of the forms under s. 706.07 (8) and any other form authorized under s. 706.07 (7) (b), a principal for whom an online notarial act is performed is considered to be before the online notary public. An electronic certificate of notarial act for an online notarial act shall be in lieu of any written certificate.

AB293,16,21 3. For purposes of determining the jurisdiction in which an online notarial act is performed, the location of the online notary public shall be determinative. The commission expiration date appearing on the certificate shall be the expiration date of the commission as an online notary public, regardless of any other commission the notary public holds. The online notary public shall use on the electronic certificate the electronic notarial seal under s. 137.01 (3) (c).

AB293,16,25 4. By executing an electronic certificate of notarial act under this paragraph, the online notary public certifies that the online notary public has acted in compliance with this section. Section 706.07 (7) (c) does not apply with respect to an electronic certificate of notarial act.

AB293,17,2 (e) An online notarial act performed under this section involving the principal's remote presentation shall comply with the following minimum standards:

AB293,17,5 1. The online notary public shall use identity proofing that includes knowledge-based authentication with at least the following minimum security characteristics:

AB293,17,7 a. The principal shall be presented with 5 or more questions with a minimum of 5 possible answer choices per question.

AB293,17,11 b. Each question under subd. 1. a. shall be drawn from a 3rd-party provider of public and proprietary data sources and be identifiable to the principal's social security number or other identification information or the principal's identity and historical events records.

AB293,17,13 c. Responses to all questions under subd. 1. a. shall be made within a 2-minute time constraint.

AB293,17,15 d. The principal shall answer a minimum of 80 percent of the questions correctly.

AB293,17,17 e. The principal may be offered an additional attempt in the event of a failed first attempt.

AB293,17,19 f. During a second attempt, the principal may not be presented with more than 3 questions from the prior attempt.

AB293,17,23 2. The online notary public shall confirm that the principal's credential is valid and matches the principal's claimed identity by using credential analysis consisting of one or more automated software or hardware processes that scan the credential, including its format features, data, bar codes, or other security elements.

AB293,18,2 (4) Electronic record of online notarizations. (a) Subject to par. (e), an online notary public shall keep electronic records for online notarized documents and shall maintain the security of these records. These records shall include all of the following:

AB293,18,3 1. The date and time of the online notarial act.

AB293,18,4 2. The type of online notarial act.

AB293,18,5 3. A description of the online proceeding.

AB293,18,6 4. The name and address of each principal involved in the proceeding.

AB293,18,8 5. A notation of the type of credential provided by each principal involved in the proceeding to the online notary public.

AB293,18,9 6. The fee, if any, charged for the notarization.

AB293,18,12 (b) The online notary public shall create an audio and video copy of the performance of the online notarial act, which recording may provide satisfactory evidence of identification.

AB293,18,15 (c) The online notary public shall take reasonable steps to ensure the integrity and security of online notarizations, maintain a backup for all electronic records, and protect the backup records from unauthorized access and use.

AB293,18,17 (d) All electronic records shall be maintained for at least 7 years after the date of the transaction or proceeding associated with the record.

AB293,18,23 (e) An online notary public may, by written agreement, designate a repository to maintain the electronic records required under par. (a) and the audio and video recordings required under par. (b). The written agreement shall require the repository to maintain the security of these electronic records and to meet all applicable requirements of this paragraph and par. (c). The repository may be the employer of the online notary public.

AB293,19,2 (5) Use of electronic record, signature, and seal. (a) An online notary public shall take reasonable steps to ensure registered devices used to create electronic signatures are current and have not been revoked or terminated by the devices' issuing authority.

AB293,19,4 (b) An online notary public may not allow another person to use the online notary public's electronic signature.

AB293,19,7 (c) An online notary public shall immediately report to the department any loss, theft, or vandalism of the online notary public's electronic signature or electronic seal.

AB293,19,11 (6) Rule making. The department shall promulgate rules to implement this section and to facilitate online notarizations. These rules shall include standards for online notarization, credential analysis, identity proofing, and communication technology.