§ 135-C — Electronic notarization

§ 135-c. Electronic notarization. 1. Definitions. (a) "Communication\ntechnology" means an electronic device or process that: (i) allows a\nnotary public and a remotely located individual to communicate with each\nother simultaneously by sight and sound; and (ii) when necessary and\nconsistent with other applicable law, facilitates communication with a\nremotely located individual who has a vision, hearing, or speech\nimpairment.\n (b) "Electronic" shall have the same meaning as set forth in\nsubdivision one of section three hundred two of the state technology\nlaw.\n (c) "Electronic record" means information that is created, generated,\nsent, communicated, received or stored by electronic means.\n (d) "Electronic notarial act" means an official act by a notary\npublic, physically present in the state of New York, on or involving an\nelectronic record and using means authorized by the secretary of state.\n (e) "Electronic notary public" or "electronic notary" means a notary\npublic who has registered with the secretary of state the capability of\nperforming electronic notarial acts.\n (f) "Electronic signature" shall have the same meaning as set forth in\nsubdivision three of section three hundred two of the state technology\nlaw.\n (g) "Principal" means an individual:\n (i) whose signature is reflected on a record that is notarized;\n (ii) who has taken an oath or affirmation administered by a notary\npublic; or\n (iii) whose signature is reflected on a record that is notarized after\nthe individual has taken an oath or affirmation administered by a notary\npublic.\n (h) "Record" means information that is inscribed on a tangible medium\nor that is stored in an electronic or other medium and is retrievable in\nperceivable form.\n 2. Any notary public qualified under this article is hereby authorized\nto perform an electronic notarial act by utilizing audio-video\ncommunication technology that allows the notary public to interact with\na principal, provided that all conditions of this section are met.\n (a) The methods for identifying document signers for an electronic\nnotarization shall be the same as the methods required for a paper-based\nnotarization; provided, however, an electronic notarial act conducted\nutilizing communication technology shall meet the standards which have\nbeen approved through regulation by the secretary of state as\nacceptable. Such regulations shall include, but not be limited to:\n (i) that the signal transmission shall be secure from interception\nthrough lawful means by anyone other than the persons communicating;\n (ii) that the communication technology shall permit the notary public\nto communicate with the principal live, in real time;\n (iii) that the communication technology shall permit the notary to\ncommunicate with and identify the remotely located individual at the\ntime of the notarial act; and\n (iv) a standard that requires two or more different processes for\nauthenticating the identity of a remotely located individual utilizing\ntechnology to detect and deter fraud, but which may allow a notary\npublic's personal knowledge of a document signer to satisfy such\nrequirement.\n (b) If video and audio conference technology has been used to\nascertain a document signer's identity, the electronic notary shall keep\na copy of the recording of the video and audio conference and a notation\nof the type of any other identification used. The recording shall be\nmaintained for a period of at least ten years from the date of\ntransaction.\n 3. Registration requirements. (a) Before performing any electronic\nnotarial act or acts, a notary public shall register the capability to\nnotarize electronically with the secretary of state on a form prescribed\nby the secretary of state and upon payment of a fee which shall be set\nby regulation.\n (b) In registering the capability to perform electronic notarial acts,\nthe notary public shall provide the following information to the\nsecretary of state, notary processing unit:\n (i) the applicant's name as currently commissioned and complete\nmailing address;\n (ii) the expiration date of the notary public's commission and\nsignature of the commissioned notary public;\n (iii) the applicant's e-mail address;\n (iv) the description of the electronic technology or technologies to\nbe used in attaching the notary public's electronic signature to the\nelectronic record; and\n (v) an exemplar of the notary public's electronic signature, which\nshall contain the notary public's name and any necessary instructions or\ntechniques that allow the notary public's electronic signature to be\nread.\n 4. Types of electronic notarial acts. (a) Any notarial act authorized\nby section one hundred thirty-five of this article may be performed\nelectronically as prescribed by this section if: (i) for execution of\nany instrument in writing, under applicable law that document may be\nsigned with an electronic signature and the notary public is reasonably\nable to confirm that such instrument is the same instrument in which the\nprincipal made a statement or on which the principal executed a\nsignature; and (ii) the electronic notary public is located within the\nstate of New York at the time of the performance of an electronic\nnotarial act using communication technology, regardless of the location\nof the document signer. If the principal is outside the United States,\nthe record or subject of the notarial act:\n (1) is to be filed with or relates to a matter before a public\nofficial or court, governmental entity, or other entity subject to the\njurisdiction of the United States; or\n (2) shall involve property located in the territorial jurisdiction of\nthe United States or shall involve a transaction substantially connected\nwith the United States.\n (b) An electronic notarial act performed using communication\ntechnology pursuant to this section satisfies any requirement of law of\nthis state that a document signer personally appear before, be in the\npresence of, or be in a single time and place with a notary public at\nthe time of the performance of the notarial act.\n 5. Form and manner of performing the electronic notarial act. (a) When\nperforming an electronic notarial act relating to execution of\ninstruments in writing, a notary public shall apply an electronic\nsignature, which shall be attached to the electronic record such that\nremoval or alteration of such electronic signature is detectable and\nwill render evidence of alteration of the document containing the notary\nsignature which may invalidate the electronic notarial act.\n (b) The notary public's electronic signature is deemed to be reliable\nif the standards which have been approved through regulation by the\nsecretary of state have been met. Such regulations shall include, but\nnot be limited to, the requirements that such electronic signature be:\n (i) unique to the notary public;\n (ii) capable of independent verification;\n (iii) retained under the notary public's sole control;\n (iv) attached to the electronic record; and\n (v) linked to the data in such a manner that any subsequent\nalterations to the underlying document are detectable and may invalidate\nthe electronic notarial act.\n (c) The notary public's electronic signature shall be used only for\nthe purpose of performing electronic notarial acts.\n (d) The remote online notarial certificate for an electronic notarial\nact shall state that the person making the acknowledgement or making the\noath appeared through use of communication technology.\n (e) The secretary shall adopt rules necessary to establish standards,\nprocedures, practices, forms, and records relating to a notary public's\nelectronic signature. The notary public's electronic signature shall\nconform to any standards adopted by the secretary.\n 6. Recording of an electronic record. (a) If otherwise required by law\nas a condition for recording that a document be an original document,\nprinted on paper or another tangible medium, or be in writing, the\nrequirement is satisfied by paper copy of an electronic record that\ncomplies with the requirements of this section.\n (b) If otherwise required by law as a condition for recording, that a\ndocument be signed, the requirement may be satisfied by an electronic\nsignature.\n (c) A requirement that a document or a signature associated with a\ndocument be notarized, acknowledged, verified, witnessed, or made under\noath is satisfied if the electronic signature of the person authorized\nto perform that act, and all other information required to be included,\nis attached to or logically associated with the document or signature. A\nphysical or electronic image of a stamp, impression, or seal need not\naccompany an electronic signature if the notary has attached an\nelectronic notarial certificate that meets the requirements of this\nsection.\n (d) (i) A notary public may certify that a tangible copy of the\nsignature page and document type of an electronic record notarized by\nsuch notary public is an accurate copy of such electronic record. Such\ncertification must (1) be dated and signed by the notary public in the\nsame manner as the official signature of the notary public provided to\nthe secretary of state pursuant to section one hundred thirty-one of\nthis article, and (2) comply with section one hundred thirty-seven of\nthis article.\n (ii) A county clerk, city registrar, or other recording officer where\napplicable shall accept for recording a tangible copy of an electronic\nrecord and that is otherwise eligible to be recorded under the laws of\nthis state if the record has been certified by a notary public or other\nindividual authorized to perform a notarial act.\n (iii) A certification in substantially the following form is\nsufficient for the purposes of this subdivision:\nCERTIFICATE OF AUTHENTICITY\nState of New York )\n ) ss.:\nCounty of ...............)\nOn this ...... day of ...... in the year ....., I certify that the\nsignature page of the attached record (entitled ......) (dated ......)\nis a true and correct copy of the signatures affixed to an electronic\nrecord printed by me or under my supervision. I further certify that, at\nthe time of printing, no security features present on the electronic\nrecord indicated any changes or errors in an electronic signature in the\nelectronic record after its creation or execution.\n (Signature and title of notary public)\n (official stamp or registration number, with the expiration\ndate of the notary public's commission)\n 7. Change of e-mail address. Within five days after the change of an\nelectronic notary public's e-mail address, the notary public shall\nelectronically transmit to the secretary of state a notice of the\nchange, signed with the notary public's official electronic signature.\n 8. No notary public or business employing the services of a notary\npublic operating in the state of New York shall exclusively require\nnotarial transactions to utilize electronic notarization.\n 9. Nothing in this section shall be construed as requiring any notary\npublic to perform a notarial act using electronic communication\ntechnology. A notary public may refuse to perform such a notarial act if\nthe notary public is not satisfied that (a) the principal is competent\nor has the capacity to execute a record, or (b) the principal's\nsignature is knowingly and voluntarily made.\n 10. Notwithstanding article nine of the real property law or any other\nlaw to the contrary, any act performed in conformity with this section\nshall satisfy any requirements at law that a principal personally appear\nbefore, be in the presence of, or be in a single time and place with a\nnotary public at the time of the performance of the notarial act, unless\na law expressly excludes the authorization provided for in this section.\n