Part 5 in our series looking at the new Illinois Notary laws and how they affect Notaries in the state. Previous articles can be found here:
Part 1: Illinois new Notary law overview
Part 2: Illinois new Notary journal rules
Part 3: Illinois traditional and electronic commission changes
Part 4: New Illinois Notary seal, certificate and fee rules
In the final article of our series on the sweeping Illinois new laws that took effect on June 5, 2023, we discuss the new electronic and remote notarization rules. Many Illinois Notaries have asked us how these rules will work. Here’s what you need to know.
Electronic notarization basics
As you may recall from reading our first article on Illinois Notary law changes, an “electronic notarization” is a notarization where the principal and Electronic Notary are in different physical locations, and the notarization is performed on an electronic document. The Illinois Secretary of State has told the NNA that “electronic notarization” refers to “in-person electronic notarizations” (IPEN) as well. Our article on Illinois commissioning changes described the rules for obtaining an Electronic Notary Commission.
Many of the new electronic notarization rules center around the Notary’s electronic signature and seal. The Electronic Notary seal must contain all the information required in an official Notary Public seal and look identical to it in every respect.
Both the electronic signature and seal must be applied to an electronic document in a manner that is capable of independently verifying the Electronic Notary who used them and making evident any subsequent change to the electronic document. This is accomplished by the Notary using a digital certificate, a piece of computer code that uses encryption technology to identify the changes to the electronically notarized record and by whom.
A digital certificate may be purchased from a technology company that functions as the “certification authority” for the issuance of digital certificates. A digital certificate must comply with the X.509 standard and is typically issued for a stated period, such as 1 year. An Electronic Notary must keep their digital certificate secure and not allow anyone else to use it. If the Notary changes their digital certificate, they must notify the Secretary of State.
The security requirements for physical Notary Public seals, as discussed in our article on Illinois Notary seals, certificates and fees, also apply to electronic seals.
Since electronic notarizations require audio-video communication technology, many rules govern the use of this technology. The technology must utilize real-time, live transmission of audio-video feeds and be of sufficient audio clarity and video resolution to enable an Electronic Notary and remotely located principal to see and speak with each other and for the Electronic Notary to reasonably confirm that a record signed by the remotely located principal is the same one the Electronic Notary will be notarizing. The technology must provide a means of access control so that the appropriate parties are admitted to the notarial ceremony conducted remotely. At this time there are no specific rules adopted to specify requirements for technology used to perform IPEN.
How does an Electronic Notary identify a remotely located principal? Suppose the Electronic Notary does not personally know the remotely located principal, or a credible witness who can vouch for the principal’s identity is unavailable. In that case, the Electronic Notary must use a “multi-factor authentication procedure” that involves:
- Remote presentation by the principal of a government-issued photo ID.
- Credential analysis of the ID using appropriate technologies to confirm the ID is not fraudulent or altered.
- “Dynamic knowledge-based authentication,” which presents 5 questions based on the life and credit history of the remote principal and must be answered with an 80% score in 2 minutes or less.
We’ve mentioned in the Notary journal article in this series that Electronic Notaries in Illinois must keep a journal of every electronic notarization they perform. For every electronic notarization, an Electronic Notary must also create an audio-video recording of the electronic notarial act.
The administrative rules dive into the requirements for these recordings. The Electronic Notary must inform the parties that the electronic notarial act will be recorded. The Electronic Notary and the provider of the electronic notarization system used to create the recording must ensure that any personally identifiable information disclosed during the electronic notarial act is protected from unauthorized access. An Electronic Notary may choose to authorize a technology provider to be the repository to store all the Electronic Notary’s journals and audio-video recordings, but the Electronic Notary must retain sole control of these records at all times.
Remote notarization basics
In Illinois, “remote notarization” is a second form of notarization that uses audio-visual communication technology. Electronic and remote notarization in Illinois have many similarities, but they also have fundamental differences.
Remote notarization in Illinois is similar to electronic notarization in the following ways:
- A Remote Notary must have a combined $30,000 bond to perform remote notarizations.
- A Notary must keep a journal and make a recording of the remote notarial act.
- The quality of the audio-video communication must enable the Remote Notary to confirm that the Remote Notary will be notarizing the same document signed by the remotely located individual.
- Every notarial certificate for a remote notarization must contain a prescribed statement indicating that a remote notarization was performed. (For an electronic notarization, the notarial certificate must contain a similar statement indicating that an electronic notarization was performed.)
Remote notarization in Illinois is different from electronic notarization in the following ways:
- In Illinois, “electronic notarizations” use electronic documents, signatures, and Notary seals, while “remote notarizations” use paper documents, ink signatures and physical Notary seals.
- One must obtain a separate Electronic Notary commission to perform electronic notarizations, but you only need a standard Notary Public commission to perform remote notarizations.
- Remote notarization does not require the Remote Notary to use a multi-factor authentication process to identify the remotely located individual. If the Notary wants to use multi-factor authentication — and the NNA strongly encourages it — the Remote Notary may do so.
- The documents in an electronic notarization are transmitted electronically. In a remote notarization, paper documents are physically mailed from the remotely located individual to the Remote Notary performing the remote notarization.
- Remote Notaries may charge a maximum of $5 for a remote notarial act, whereas an Electronic Notary may charge a maximum of $25 for an electronic notarial act.
Bill Anderson is the Vice President of Government Affairs for the National Notary Association.
Additional Resources:
Illinois online Notary information