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MA House Bill 58

Legislation

State: Massachusetts
Signed: March 29, 2023

Effective: June 27, 2023
Chapter: 2

Summary
Massachusetts puts in place permanent in-person electronic and remote online notarization statutes.
Affects
Amends Sections 1, 1A, 8, 16, 18, 22 of, and adds Sections 27, 28, and 29 to, Chapter 222 of the Massachusetts General Laws.
Changes

Definitions

  1. Defines “communication technology,” “credential analysis,” “credible witness,” “dynamic knowledge-based authentication,” “electronic,” “electronic record,” “electronic signature,” “foreign state,” “identity proofing,” “record,” “remotely located individual,” “State Secretary,” “tamper-evident,” “tangible journal,” and “United States.”

Electronic Seal, Signature, and Certificate of Notarial Act

  1. Provides that the seal of a Notary may be a digital image that appears in the likeness or representation of a traditional physical Notary seal.
  2. Provides that only the Notary whose name and registration number appear on an electronic seal shall affix that seal.
  3. Provides that if the seal is electronically generated, it shall include the words "Electronically affixed."
  4. Requires a Notary to  attach or logically associate the Notary’s electronic signature and electronic seal to an electronic record that is the subject of a notarial act by use of the digital certificate in a matter that is capable of independent verification and renders any subsequent change or modification to the electronic document tamper evident.
  5. Requires a certificate of notarial act required by GL ch. 222, Section 15 for a remote notarization to 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 is physically located while performing the notarial act.

Tangible and Electronic Journal

  1. Authorizes a journal to be created in a permanent, tamper-evident electronic format complying with rules of the State Secretary.
  2. Clarifies that a Notary may only keep 1 tangible journal at any time but may keep more than 1 electronic journal provide that each conforms to the requirements of GL ch. 222, Section 22(a).
  3. Adds as a required entry in the journal a notation indicating whether the notarial act was conducted in person or remotely.
  4. Requires that if a notarial act is performed remotely, the Notary must include the address of the Notary and each principal and witness in the journal.
  5. Provides that if not in use, a journal shall be kept under the exclusive control of the Notary or a third-party technology service provider designated by the Notary, provided there is a mutual agreement by both the Notary and the third-party service provider, and further provided the journal is not used by any other Notary or surrendered to an employer upon termination of employment.

In-Person Electronic Notarial Acts

  1. Permits a Notary to select one or more tamper-evident technologies to perform notarial acts with respect to electronic records.
  2. Prohibits a person from requiring a Notary to perform a notarial act with respect to an electronic record with a technology that the Notary has not selected.
  3. Provides that the State Secretary shall establish standards for approval of technologies for use by Notaries.
  4. Requires any technology approved by the State Secretary and selected by a Notary must require the Notary’s electronic signature and electronic seal to be: (a) unique to the Notary; (b) capable of independent verification; (c) retained under the sole control of the Notary; and (d) attached to or logically associated with the electronic record in a tamper-evident manner.
  5. Clarifies that a tangible copy of an electronic record shall be accepted as the equivalent of an original document for purposes of recording said copy, provided that: (a) the copy contains a notarial certificate that satisfies all requirements for an original document to be accepted for recording; (b) the copy satisfies all requirements for recording an original document set forth in GL ch. 183 and 185, as applicable; and (c) the notarial officer executing the notarial certificate certifies that the tangible copy is an accurate copy of the electronic record.

Authorization to Perform Remote Notarial Acts

  1. Authorizes a Notary physically located in Massachusetts to perform a notarial act using communication technology for a remotely located individual who is the principal in a notarial act if: the Notary: (a) has personal knowledge of the identity of the individual; (a) 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 and who personally knows the remotely located individual; or (c) reasonably can identify the individual by at least 2 different types of identity proofing processes or services.
  2. Authorizes a Notary to perform a remote notarization if the Notary is able to execute the notarial act in a single, real-time session.
  3. Authorizes a Notary to perform a remote notarization if the Notary is able reasonably to confirm that a record before the Notary is the same record in which the remotely located individual made a statement or on which the remotely located individual executed a signature.
  4. Authorizes a Notary to perform a remote notarization if the Notary, or a person acting on behalf of the Notary, creates an audio-visual recording of the performance of the notarial act.
  5. Authorizes a Notary to perform a remote notarization for a remotely located individual who is located outside the United States if: (a) the record 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 involves property located in the territorial jurisdiction of the United States or a transaction substantially connected with the United States; and (b) the act of making the statement or signing the record is not prohibited by the foreign state in which the remotely located individual is located.
  6. Prohibits a Notary from using communication technology to notarize a record related to the electoral process, or a will, codicil, or document purporting to be a will or codicil.

Registration

  1. Requires a Notary to register as a Remote Notary with the State Secretary, inform the State Secretary that the Notary will be performing remote notarizations and identify the communication technology that the Notary intends to use before the Notary performs the Notary’s initial notarization using communication technology.
  2. Requires the notice a Notary submits to register to be a Remote Notary to be submitted in the form required by the State Secretary and must: (a) include an affirmation that the Notary has read and will comply with this section and all rules adopted by the State Secretary; (b) be accompanied by proof that the Notary has successfully completed any training that may be required by the State Secretary; and (c) identify a usual place of business in this state or, if a foreign entity, identify a registered agent, and in either case an address for service of process in connection with a civil action or other proceeding.
  3. Provides that the State Secretary may require a Notary who performs remote notarizations to take a maximum 3-hour in-person or online course addressing the duties, obligations, and technology requirements for conducting remote notarizations.
  4. Provides that the course, if required, is to be offered by the State Secretary or a vendor approved by the State Secretary.
  5. Requires each course provider to make the in-person or online course generally available to all applicants.
  6. Provides that regardless of membership in the course 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.

Recordings of Remote Notarial Acts; Records Access; Personal Information

  1. Requires a Notary, a guardian, conservator, or agent of a Notary, or a personal representative of a deceased Notary to retain the audio-visual recording of a remote notarial act or cause the recording to be retained by a repository designated by or on behalf of the person required to retain the recording.
  2. Provides that the recording of a remote notarization must be retained for a period of 10 years after the recording is made.
  3. Requires a Notary, upon request, to 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: (a) the parties to an electronic record notarized by the Notary; (b) 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 (c) any other persons pursuant to a subpoena, court order, law enforcement investigation, or other lawful inspection demand.
  4. Prohibits a Notary from using, selling, offering to sell to another person or transferring to another person for use or sale any personal information obtained under GL ch. 222, Section 28 that identifies a remotely located individual, a witness to a remote notarization, or a person named in a record presented for remote notarization, except (a) as necessary to facilitate performance of a notarial act, (b) to effect, administer, enforce, service, or process a record provided by or on behalf of the individual or the transaction of which the record is a part, or (c) in accordance with GL ch. 222, Section 28, including the rules adopted pursuant thereto, or other applicable federal or state law, or to comply with a lawful subpoena or court order.

Regulation of Technology Service Providers

  1. Requires the State Secretary to create and maintain a registry of communication technology service providers who meet the established standards as certified by the communication technology service provider.
  2. Requires a Notary who uses communication technology to utilize communication technology and identity proofing from communication technology service providers included on the State Secretary’s registry.
  3. Requires a remote notarization system to conform to the requirements of GL ch. 222 and any rules adopted by the State Secretary.
  4. Provides that 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.
  5. Provides that the annual fee for technology service providers shall not exceed, in the aggregate, the actual and reasonable costs incurred by the State Secretary for administering the requirements imposed under GL ch. 222, Section 28 and in any event shall not be greater than $500 in the aggregate.
  6. Clarifies that the costs comprising the technology service provider annual fee 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.
  7. Clarifies that 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, the provider of the communication technology, identity proofing, or storage appoints the State Secretary as the provider’s agent for service of process in any civil action in Massachusetts related to the notarial act.
  8. Requires that in addition to any coverage it elects to provide for individual Notaries, 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.
  9. Clarifies that 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.

Remote Notarial Acts and Real Estate Closings

  1. Provides that with respect to notarial acts conducted in the course of a closing, as that term is defined in GL ch. 221, Section 46E, the communication technology must be engaged by the closing attorney with the approval of the lender.
  2. Provides that in a remote closing, upon successful verification of the identity of the remotely located individual by the Notary, the attorney shall enter and affirm the Massachusetts Board of Bar Overseers assigned number of the attorney prior to the conduct of the first notarial act, and further provides that the communication technology is responsible for recording this information in a manner that is logically associated with the transaction and retaining the information for the same length of time and in the same manner as it retains all other information regarding the notarial act.
  3. Provides that with respect to any document executed in the course of a closing involving a mortgage or other conveyance of title to residential real property, only a Notary appointed pursuant to GL ch. 222 who is an attorney licensed to practice law in the commonwealth or a non-attorney, either under the direct supervision of or pursuant to a direct request by such an attorney who is directing or managing the closing, shall perform an acknowledgment, affirmation or other notarial act utilizing communication technology.
  4. Requires the notarial certificate affixed to any document in a closing to recite the Massachusetts Board of Bar Overseers registration number of the Massachusetts attorney Notary, or of the supervising Massachusetts attorney in the event that the document is notarized by a non-attorney, but failure to comply with this requirement shall not affect the validity of the document or the recording thereof.
  5. Prohibits anyone who is not a Massachusetts attorney from ensuring that the documents necessary for the transfer of title are executed in accordance with the laws of the Commonwealth of Massachusetts.

Other Provisions

  1. Clarifies that a Notary must not perform a notarial act if the principal is not in the Notary's presence at the time of notarization, except as specifically provided in Chapter 222.
  2. Provides that a Notary is not precluded from receiving an additional technology services fee that has been clearly disclosed in advance to the person requesting the service so long as the technology services fee reflects the actual reasonable cost to the Notary of utilizing a third-party technology service provider.
  3. Provides that whenever the State Secretary believes that a Notary registered pursuant to GL ch. 222, Section 28 has engaged in a pattern of conduct, or a standard, practice, or procedure that the State Secretary determines is contrary to GL ch. 221, Section 46E, the State Secretary may order the Notary to comply with the law.
  4. Provides that the Attorney General may enforce the order of the State to a Notary to comply with the law by civil action as provided in GL chapter 221, Section 46E.
  5. Authorizes State Secretary to adopt regulations governing administrative proceedings under GL ch. 222, Section 28.
  6. Clarifies that the remedy provided by GL ch. 222, Section 18 shall not in any way limit the availability of judicial remedies to any person or official.
  7. Authorizes the chief justice of the land court to promulgate rules, orders, guidelines, and directives concerning GL ch. 222, Sections 27 and 28 as they pertain to the execution, acknowledgment, and registration of documents affecting title to land whose title has been registered and confirmed by the land court pursuant to Chapter 18
  8. Makes technical changes.

Rules

  1. Requires the State Secretary to adopt rules regarding performance of the notarial act that prescribe the means of performing a notarial act involving a remotely located individual using communication technology.
  2. Requires the State Secretary to adopt rules regarding performance of the notarial act that 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.
  3. Requires the State Secretary to adopt rules regarding performance of the notarial act that 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.
  4. Authorizes the State Secretary to have the authority to establish standards for the use of communication technology and identity proofing and further requires a Notary who uses communication technology to conform to those standards.

Effective Dates

  1. The temporary COVID authorization to perform remote notarizations are repealed effective March 31, 2023 (See Section 48 of the bill, which adds a new Section 41 to Chapter 22 of the Acts of 2022 repealing Section 12 of that law).
  2. Sections 22-32 of the bill (everything in the bill except the IPEN and RON provisions) take effect 90 days after the effective date of the Act (June 27, 2023).
  3. Section 33, which adds the IPEN and RON provisions as Sections 27-29 of GL 222) takes effect January 1, 2024.
Analysis

Massachusetts, one of the last remaining holdout states to not have enacted permanent remote notarization statutes, does so with the enactment of House Bill 58. The bill puts in place provisions for both in-person electronic and remote online notarization. A Notary who wants to perform remote notarizations must register with the State Secretary. The Secretary has the authority to require a Notary to take up to a 3-hour course on remote notarizations before approving the Notary. The bill provides rules for technology service providers, electronic Notary seals, journals and electronic journals, audio-visual recordings of remote notarization, and more. As part of the bill, the state’s temporary remote notarization authorization put in place during the COVID-19 pandemic, has been repealed.

Read House Bill 58.

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