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IN Senate Bill 372

Legislation

State: Indiana
Signed: March 13, 2018

Effective: July 01, 2019
Chapter: Public Law No. 59

Summary

Senate Bill 372 "cleans up" last year's Senate Bill 532 and adds provisions for electronic and remote notarization.

Affects

Amends Sections 33-42-0.5-1, 33-42-9-2, 33-42-9-4, 33-42-9-6, 33-42-9-7, 33-42-9-8, 33-42-9-9, 33-42-9-10,  33-42-9-11, 33-42-9-12, 33-42-10-3, 33-42-12-1, IC 33-42-12-3, IC 33-42-12-1, IC 33-42-12-3, IC 33-42-13-1, IC 33-42-13-3, 33-42-13-4, 33-42-14-1, 33-42-16-2, 33-42-16-3 and 33-42-16-4 of; adds Sections 33-42-0.5-2 through 33-42-0.5-35, adds Sections 33-42-17-1 through 33-42-17-12 to, and repeals Section 33-42-10-1 from the Indiana Code.

Changes

Definitions

  1. Defines or amends the definitions of the following terms: (a) “appearance” or “appear”; (b) “audio-visual communication”; (c) “credential”; (d) “credential analysis”; (e) “credible witness”; (f) “dynamic knowledge based authentication assessment”; (g) “electronic”; (h) “electronic notarial certificate”; (i) “electronic record”; (j) “electronic seal”; (k) “exclusive control”; (l) “identity proofing”; (m) “in a representative capacity”; (n) “notarial act”; (o) “official seal”; (p) “principal”; (q) “public key infrastructure”; (r) “record”; (s) “remote notarial act”; (t) “remote notary public” (u) “remote presentation”; (v) “sign”; (w) “stamping device”; (x) “surety” and (y) “technology”.

Registration

  1. Provides that an individual performing a notarial act may not perform the notarial act as a remote notarial act unless (a) the individual performing the remote notarial act is a Notary Public commissioned by the Secretary of State under IC 33-42-2; and is registered as a remote Notary; (b) the remote notarial act is performed in accordance with Indiana Code Title 33, Article 42, Chapter 17; and (c) the individual performing the remote notarial act complies with Indiana Code Title 33, Article 42, Chapter 17.
  2. Provides that a Notary may perform a remote notarial act only after registering as a remote Notary with the Secretary of State.
  3. Provides that a Notary is eligible to register to perform remote notarizations if the Notary (a) holds a current Indiana Notary commission; (b) complies with the continuing education requirements described in IC 33-42-12-2, and prescribed under IC 33-42-16-2; (c) is able to competently operate audiovisual communication technology and use identity proofing and credential analysis technology; and (d) pays a $5 registration fee that is in addition to the processing fee described in IC 33-42-12-1(c).
  4. Provides that unless a registration to perform remote notarizations is revoked under IC 33-42-13, the term of registration begins on the registration starting date set by the Secretary of State and expires on the date on which the remote Notary's current commission ends.
  5. Provides that a remote Notary whose registration expires under may not perform a remote notarial act until the remote Notary has reregistered.
  6. Clarifies that a Notary is not required to perform remote notarial acts.
  7. Clarifies that a remote Notary is a Notary subject to IC 33-42-12 to the same extent as a Notary who is not registered as a remote Notary, may perform notarial acts under IC 33-42-9 in addition to performing remote notarial acts and may perform remote notarial acts in accordance with Indiana Code Title 33, Article 42, Chapter 17.

Standards for Remote Notarial Acts

  1. Authorizes the following notarial acts to be performed as remote notarial acts: (a) acknowledgments; (b) oaths and affirmations; (c) verifications on oath or affirmation; (d) signature witnessings; and (e) copy certifications.
  2. Clarifies that a remote Notary may perform a remote notarial act only if the remote Notary is physically present in Indiana at the time the remote notarial act is performed.
  3. Allows a remote Notary to charge not more than $15 for each remote notarial act.
  4. Allows a remote Notary to charge a reasonable fee to recover expenses related to copying of electronic journal entries or the audio-visual recording of remote notarial acts.
  5. Clarifies that a remote notarization in which the principal appears before the remote Notary by means of audio-visual communication satisfies the requirement for an in-person appearance under Indiana Code Title 33, Article 42, Chapter 17.
  6. Permits a remote Notary to use audio-visual communication technology in performing a remote notarial act if the remote Notary has first selected a technology that has been approved by the Secretary of State and notified the Secretary of the selection.
  7. Clarifies that a remote notarization performed by an Indiana remote Notary using audio-visual communication technology that has been approved by and reported by the remote Notary to the Secretary of State is considered to have been performed in Indiana and governed by Indiana law regardless of where the principal for whom the remote notarization was performed was located.
  8. Permits a remote Notary to perform a remote notarial act for a principle (a) in Indiana; (b) outside Indiana, but within the United States; or (c) outside of the United States, subject to certain conditions.
  9. Clarifies that a remote Notary may perform a remote notarial act for a principal located outside of the United States if the act is not prohibited in the jurisdiction where the principal is present at the time of the remote notarial act and the remote notarial act concerns a matter that (a) is before a court, a governmental entity or another entity in; (b) concerns a property located in; or (c) relates to a transaction substantially connected to a territory or jurisdiction of, the United States.
  10. Clarifies that regardless of the physical location of the principal at the time of the notarial act, the validity of a remote notarization performed by a remote Notary commissioned in Indiana must be determined under the laws of Indiana.
  11. Clarifies that a remote notarial act performed under Indiana law is considered to have been performed in Indiana, regardless of the physical location of the principal at the time the remote notarial act is performed.
  12. Clarifies that to the extent that Chapter 17 conflicts with another provision of Indiana Code Title 33, Article 42 concerning remote notarial acts, Chapter 17 is controlling.
  13. Provides that the identity of the principal in a remote notarial act may be verified by (a) the remote Notary's personal knowledge of the principal's identity; (b) a credible witness's knowledge of the principal's identity; or (c) all of the following: (i) remote presentation by the principal of a credential identifying the principal, (ii) credential analysis and visual inspection by the remote Notary of the credential remotely presented to the remote Notary; and (iii) identity proofing of the principal, which may include a dynamic knowledge-based authentication assessment or use of a public key infrastructure.
  14. In addition to the methods of identification for identifying principals in a remote notarization specified in the statute, provides that principals may be identified by another method that uses technology that meets or exceeds the standards for approval established by the Secretary of State under IC 33-42-16-2.

Records of Remote Notarial Acts

  1. Requires a remote Notary who performs a remote notarial act to personally do the following enter each remote notarial act in 1 or more electronic journals.
  2. Requires a remote Notary who performs a remote notarial act maintain the electronic journal, keep the electronic journal in the exclusive control of the remote Notary and use commercially reasonable means to prevent unauthorized access to the electronic journal.
  3. Requires a remote Notary who performs a remote notarial act to provide for the lawful copying and inspection of the electronic journal.
  4. Prohibits an employer from keeping, maintaining, securing and providing lawful copying and inspection of the electronic journal on behalf of a remote Notary.
  5. Provides that an electronic journal must provide access to the information contained in the electronic journal contingent upon the use of a password or other secure means of authentication.
  6. Provides that an electronic journal must be able to print or produce a tangible record of any entry logged in the electronic journal.
  7. Requires the electronic journal entry for each remote notarial act to consist of (a) the date and time of the remote notarial act; (b) the type of remote notarial act; (c) a title or description of the electronic record for each remote notarial act; (d) the full name of the principal; (e) a description of the manner by which the identity of the principal was authenticated or verified; (f) a description of any credential and the credential's corresponding date of expiration used to authenticate or verify the identity of the principal; (g) a listing of every type of fee and fee amount charged by the remote Notary for each remote notarial act; and (h) any other information required by the Secretary of State.
  8. Prohibits a remote Notary from deleting, destroying, overwriting or rendering inaccessible an electronic journal unless the remote Notary is ordered to do so by the Secretary of State or judicial order.
  9. Requires upon a remote Notary's learning that an electronic journal is lost, stolen, or compromised, the remote Notary to notify the Secretary of State.
  10. Requires a remote Notary who resigns or whose commission expires to maintain the contents of an electronic journal for at least 5 years after the performance of the last recorded remote notarial act.
  11. Requires a remote notarial act that is performed using audiovisual communication technology to be captured by an audiovisual recording, regardless of whether the requested remote notarial act is completed.
  12. Clarifies that before performing a remote notarial act, a remote Notary must inform the participating parties that the remote notarial act will be captured by an audiovisual recording.
  13. Provides that an audiovisual recording of a remote notarial act must include a recitation of the following by the remote Notary: (a) identifying information sufficient to identify the specific remote notarial act performed;  and (b) a statement explaining either that the principal's identity is authenticated through the remote Notary's personal knowledge of the principal's identity or that the identity of the principal is authenticated by a credible witness.
  14. Provides that an audiovisual recording of a remote notarial act must include a recitation by the principal that the principal's electronic signature is freely and voluntarily made.

Technology Standards

  1. Requires that a technology used by a remote Notary for use in performing remote notarial acts must first be approved by the Secretary of State.
  2. Permits the Secretary of State to approve a technology for remote notarizations only if the technology (a) is tamper evident; (b) allows a remote notarial act to be completed in accordance with Indiana Code Title 33, Article 42; (c) conforms to rules adopted by the Secretary under IC 4-22-2; and (d) if the technology is to be used for a remote notarial act described in IC 33-42-17(4)(a), allows for audiovisual communication between the parties.
  3. Permits the Secretary of State to approve a technology for remote notarizations only if the vendor of the technology (a) uses a traditional or cloud-based backup strategy that is acceptable to the Secretary for use as a record keeper for any record that is related to a remote notarial act and (b) signs an agreement with the owner of the backup strategy that, in the event that the vendor ceases business operations, the owner is required to release to the Secretary any record that is related to a remote notarial act.
  4. Permits a remote Notary to select 1 or more technologies approved by the Secretary of State to perform remote notarial acts; and clarifies that the remote Notary may not be required to use a particular technology not previously selected by the remote Notary.
  5. Requires a remote Notary to (a) take reasonable steps to ensure that audiovisual technology used in a remote notarial act is secure from unauthorized interception and (b) not later than 30 days after the change occurs, notify the Secretary of State of any change in technology used to perform remote notarial acts.

Certificate of Electronic and Remote Notarial Acts

  1. Clarifies that a certificate of notarial act that is not a remote notarial act must identify the county and state in which the principal appears before the notarial officer.
  2. Clarifies that a certificate of a remote notarial act requires the information required under IC 33-42-17-7(a)(3). (Note: this section requires an electronic notarial certificate to specify that the act is a remote notarial act, include a space in which a remote Notary may indicate whether the principal in the remote notarial act appeared before the remote Notary under section 4(a)(1) or 4(a)(2) of Chapter 17; and specify the city and county in Indiana in which the remote Notary is physically located performing the remote notarial act; and city, county, state or province, and country in which the principal is physically located when the principal signs the document.)
  3. Clarifies that an electronic notarial certificate completed by a Notary (a) must be signed and dated by the Notary; (b) identify the jurisdiction in which the notarial act is performed; (c) must contain the title of the Notary, the Notary’s commission expiration date and the county of the Notary’s commission; (d), if a remote notarization, must contain the information required under IC 33-42-17(a)(3); and (e) must include the Notary’s electronic seal.
  4. Clarifies that an electronic notarial certificate completed by a notarial officer other than a Notary must (a) be signed and dated by the notarial officer; (b) identify the jurisdiction in which the notarial act is performed; (c) contain the title of the notarial officer; and (d)  include the notarial officer’s seal.
  5. Clarifies that an electronic notarial certificate form is sufficient if it meets the same requirements as in current law for a paper-based certificate form.
  6. Clarifies that in completing an electronic notarial certificate, a notarial officer certifies the officer has complied with the requirements of IC 33-42-9-1 et seq.
  7. Clarifies that in completing an electronic notarial certificate, a notarial officer may not sign the certificate until the notarial act has been performed.
  8. Clarifies that a certificate of notarial act or an electronic notarial certificate must be attached to or associated with each tangible or electronic record in a manner consistent with IC 33-42-9-12(a) through (f).
  9. Clarifies that an electronic notarial certificate constitutes presumptive evidence of the facts stated in cases, where, by law, the notarial officer is authorized to certify facts.
  10. Clarifies that a notarial officer may subsequently correct any information included or omitted from an electronic notarial certificate executed by the officer.
  11. No longer requires a Notary to notify the Secretary of State no later than 30 days after a change of residential address.
  12. Requires an electronic certificate of a remote notarial act to (a) specify that the notarial act is a remote notarial act; (b) include a space in which a remote Notary may indicate whether the principal in the remote notarial act appeared before the remote Notary physically or by means of audiovisual communication technology; and (c) specify the city and county in Indiana in which the remote Notary is physically located when performing the remote notarization and the city, county, state or province, and country in which the principal is physically located when the principal signs the document.
  13. Provides certificate forms that satisfy the requirements for an electronic certificate of a remote notarial act.

Other Provisions

  1. Clarifies that a commission as a Notary in effect on July 1, 2018, continues until its date of expiration and that a Notary who applies or reapplies for a commission on or after July 1, 2018, is subject to Indiana Code Title 33, Article 42.
  2. Clarifies that a notarial act performed under federal law is presumed valid and has the same effect as a notarial act performed by an Indiana notarial officer if the act performed under federal law is performed by a commissioned officer with the rank of second lieutenant or higher in the active service of the United States Army, United States Marine Corps, or ensign or higher in the active service of the United States Coast Guard or United States Navy.
  3. Clarifies that to the extent IC 26-2-8 conflicts with the new laws, IC 26-2-8 is controlling.
  4. Makes technical non-substantive changes.

Rules

  1. No longer permits but requires the Secretary of State to adopt rules to implement Indiana Code Title 33, Article 42.
  2. Requires the Secretary of State to adopt rules for remote Notary registration.
  3. Requires the Secretary of State to adopt rules to prescribe the manner by which notarial acts are performed with respect to tangible records and electronic records.
  4. Requires the Secretary of State to adopt rules to ensure that a change to or tampering with a record bearing an electronic notarial certificate is self-evident.
  5. Requires the Secretary of State to adopt rules to specify requirements to ensure the secure creation, storage, transmission and authentication of electronic records, electronic seals and electronic signatures.
  6. Requires the Secretary of State to adopt rules to specify standards for approval of the following for use in Indiana: (a) audio-visual communication technology; (b) identity proofing; (c) credential analysis; (d) dynamic knowledge-based authentication; (e) biometrics; and (f) other methods of identification.
  7. Clarifies that in adopting, amending or repealing rules governing electronic records or remote notarial acts, the Secretary of State shall consider (a) recent standards regarding electronic records issued by national bodies, including the National Association of Secretaries of State; (b) the customs, practices, and standards of other jurisdictions; and (c) actions of other governmental entities and officials.
  8. Requires the administrative rules for remote notarial acts must be in effect before the Secretary of state approves vendors of technology under IC 33-42-17-6.
  9. Clarifies that remote Notary applications will not be accepted for processing until the administrative rules are in effect and vendors of technology are approved by the Secretary of State.
Analysis

Senate Bill 372 makes Indiana the first state in 2018 to enact a remote or online notarization law. Indiana becomes the fifth state to authorize remote notarizations. In most respects, the remote notarization provisions mirror those enacted by Texas and Nevada last year. Following Nevada, Indiana has chosen to require Notaries wanting to perform remote notarizations to register with the Secretary of State and not seek a separate commission like Texas. As is the case in all states allowing remote notarization, Indiana Notaries must keep an electronic journal and a recording of the audiovisual remote notarization event. Like Texas and Nevada, a Notary who performs remote notarization may identify a signer by personal knowledge or a credible witness (as can Notaries for paper-based notarizations), or as is more likely, by identity proofing, remote presentation of an ID credential and credential analysis of the credential presented remotely to the remote Notary. Indiana also allows a signer to present a digital certificate issued under a public key infrastructure as evidence of identity as well. All of these terms are defined under Senate Bill 372. 

Senate Bill 372 sets an effective date of July 1, 2019, for virtually all provisions, but designates July 1, 2018, as the effective date for Sections 62 and 65 of the bill.

Read Senate Bill 372.

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