§ 28 — Communication technology for remotely-located principal in a notarial act; limitations and requirements

Massachusetts § 28

• Jurisdiction: Massachusetts
• Part III: COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIL CASES
• Title I: COURTS AND JUDICIAL OFFICERS
• Ch. 222: JUSTICES OF THE PEACE, NOTARIES PUBLIC AND COMMISSIONERS

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[ Text of section added by 2023, 2, Sec. 33 effective January 1, 2024. See 2023, 2, Sec. 85.]Section 28. (a) A notary public physically located in the commonwealth may perform a notarial act using communication technology for a remotely-located individual who is the principal in a notarial act if the notary public:(i) (A) has personal knowledge of the identity of the remotely-located individual; (B) has identified the remotely-located individual by means of an oath or affirmation of a credible witness unaffected by the document or transaction who is personally known to the notary public and who personally knows the remotely-located individual; or (C) can reasonably identify the remotely-located individual by not less than 2 different types of identity proofing processes or services;(ii) is able to execute the notarial act in a single, real-time session;(iii) is reasonably able to 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 remotely-located individual executed a signature; and(iv) 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.(b) A notary public physically located in the commonwealth may perform a notarial act using communication technology for a remotely-located individual who is the principal in a notarial act and is located outside the United States if the: (i) record: (A) 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 (B) involves property located in the territorial jurisdiction of the United States or a transaction substantially connected with the United States; and (ii) act of making the statement or signing the record is not prohibited by the foreign state in which the remotely-located individual is located.(c) A notary public shall not use communication technology to notarize a record related to the electoral process, or a will, codicil or document purporting to be a will or codicil.(d) Before a notary public performs the notary public's initial notarization using communication technology, the notary public shall: (i) register as a remote notary with the state secretary; (ii) inform the state secretary that the notary public intends to perform remote notarizations; and (iii) identify the communication technology that the notary public will use. The communication technology shall conform to the requirements of this chapter and any rules adopted by the state secretary. The notice shall be submitted in the form prescribed by the state secretary and shall: (A) include an affirmation that the notary public has read and will comply with this section and all rules adopted by the state secretary; (B) be accompanied by proof that the notary public has successfully completed any training that may be required by the state secretary; and (C) identify a usual place of business in the commonwealth or, if a foreign entity, identify a registered agent, and in either case identify an address for service of process in connection with a civil action or other proceeding.(e) If a notarial act is performed pursuant to this section, the certificate of notarial act required by section 15 shall indicate that the notarial act was performed remotely using communication technology and identify the venue for the notarial act as the county within the commonwealth where the notary public was physically located while performing the notarial act.(f) 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 clause (iv) of subsection (a) or cause the recording to be retained by a repository designated by or on behalf of the person required to retain the recording. The recording shall be retained for 10 years after the recording is made.(g) Upon request, the notary public shall make available electronic copies of the pertinent entries in the electronic journal and provide access to any related audio-video communication recording to the following persons: (i) the parties to an electronic record notarized by the notary public; (ii) the title insurer reviewing an insured transaction in the context of an audit of its agent, if the agent conducted the electronic notarial act as an element of the insured transaction; and (iii) any other persons pursuant to a subpoena, court order, law enforcement investigation or other lawful inspection demand.(h) The state secretary shall establish standards, in conformity with national standards, for the use of communication technology and identity proofing by notaries public commissioned by the commonwealth. The state secretary shall create and maintain a registry of communication technology service providers who meet the established standards as certified by the communication technology service provider. A notary public who uses communication technology shall utilize communication technology and identity proofing from communication technology service providers included on the state secretary's registry.(i) The state secretary shall assess on each communication technology service provider approved by the secretary an annual fee to be proportioned equally among registered providers. The annual fee shall not exceed, in the aggregate, the actual and reasonable costs incurred by the state secretary for administering the requirements imposed under this section. The costs may include acquiring additional software and other such costs and expenses as determined by the state secretary as reasonable and necessary to meet such requirements. The annual fee shall not be greater than $500,000, in the aggregate.(j) The secretary shall adopt rules regarding performance of the notarial act that: (i) prescribe the means of performing a notarial act involving a remotely-located individual using communication technology; (ii) establish standards for identity proofing by means of credential analysis using 1 or more commercially available automated software or hardware processes that, consistent with sound commercial practices: (A) aid the notary public in verifying the authenticity of the credential by analyzing the integrity of visual, physical or cryptographic security features to indicate that the credential is not fraudulent or inappropriately modified; and (B) use information held or published by the issuing source or authoritative source to confirm the validity of credential details; provided, however, that the results of the credential analysis process shall be provided to the notary public performing the notarial act; and (iii) provide for the use of audio-video communication technology that: (A) allows the signal transmission to be reasonably secure from interception, access or viewing by anyone other than the participants communicating; (B) provides sufficient audio clarity and video resolution to enable the notary to communicate with the remotely-located individual and any witness and to confirm the identity of the remotely-located individual and any witness, as required, using identity proofing; and (C) meets tamper-evident technological requirements by the use of additional technology that renders any subsequent change or modification to the electronic record evident.(k) 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 clause (iv) of subsection (a), the provider of the communication technology, identity proofing or storage shall appoint the state secretary as the provider's agent for service of process in any civil action in the commonwealth related to the notarial act.(l) With respect to notarial acts conducted during a closing, as defined in section 46E of chapter 221, the communication technology shall be engaged by the closing attorney with the approval of the lender. Upon successful verification of the identity of the remotely-located individual by the notary as required by clause (i) of subsection (a), such attorney, or the attorney directing or managing the closing who is directly supervising a non-attorney notary public, shall enter and affirm the attorney's board of bar overseers registration number prior to the conduct of the first notarial act. The communication technology shall record such information in a manner that is logically associated with the transaction and shall retain such information for the same length of time and in the same manner as it retains all other information regarding the notarial act.(m) In addition to any coverage it elects to provide for individual notaries public, a communication technology service provider shall provide maintenance of errors and omissions insurance coverage in a total amount of not less than $250,000 in the annual aggregate with respect to potential errors or omissions in or relating to the technology or processes provided by the communication technology service provider. A notary public shall not be responsible for the security of the systems used by the remotely-located individual or others to access the notarization session.(n) Prior to a notary public's initial notarization using communication technology, the state secretary may require the notary public to complete a course, either in-person or online, addressing the duties, obligations and technology requirements for conducting remote notarizations offered by the state secretary or a vendor approved by the state secretary; provided, however, that if such course is required the course's duration shall not exceed 3 hours. Each such provider of communication technology shall make the in-person or online course generally available to all applicants. Regardless of membership in the provider's organization, the provider shall charge each attendee the same cost for the course unless the course is provided in conjunction with a regularly scheduled meeting of the provider's membership.(o) Notwithstanding any general or special law to the contrary, with respect to any document executed in the course of a closing, as defined in section 46E of chapter 221, involving a mortgage or other conveyance of title to residential real property, only a notary public appointed pursuant to this chapter who is an attorney licensed to practice law in the commonwealth, or a non-attorney who is under the direct supervision of, or acting pursuant to a direct request by, the attorney directing or managing the closing, shall perform an acknowledgment, affirmation or other notarial act utilizing communication technology. The notarial certificate affixed to any such document shall recite the board of bar overseers registration number of the attorney notary, or of the supervising attorney for a document notarized by a non-attorney.(p) The chief justice of the land court department may promulgate rules, orders, guidelines and directives to implement this section and section 27 as said sections pertain to the execution, acknowledgment and registration of documents affecting title to land whose title has been registered and confirmed by the land court department pursuant to chapter 185.