Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2021

II 117TH CONGRESS 1ST SESSION S. 1625 To authorize notaries public to perform, and to establish minimum standards for, electronic notarizations and remote notarizations that occur in or affect interstate commerce, to require any Federal court to recognize notarizations performed by a notarial officer of any State, to require any State to recognize notarizations performed by a notarial officer of any other State when the notarization was performed under or relates to a public Act, record, or judicial proceeding of the notarial officer’s State or when the notarization occurs in or affects interstate commerce, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 13, 2021 Mr. CRAMER (for himself and Mr. WARNER) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To authorize notaries public to perform, and to establish minimum standards for, electronic notarizations and re- mote notarizations that occur in or affect interstate com- merce, to require any Federal court to recognize notarizations performed by a notarial officer of any State, to require any State to recognize notarizations performed by a notarial officer of any other State when the notarization was performed under or relates to a public Act, record, or judicial proceeding of the notarial officer’s State or when the notarization occurs in or affects interstate commerce, and for other purposes. VerDate Sep 11 2014 05:23 May 27, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\S1625.IS S1625 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1625 IS Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Securing and Enabling 4 Commerce Using Remote and Electronic Notarization Act 5 of 2021’’. 6 SEC. 2. DEFINITIONS. 7 In this Act: 8 (1) COMMUNICATION TECHNOLOGY.—The term 9 ‘‘communication technology’’, with respect to a nota- 10 rization, means an electronic device or process that 11 allows the notary public performing the notarization 12 and a remotely located individual to communicate 13 with each other simultaneously by sight and sound 14 during the notarization. 15 (2) ELECTRONIC; ELECTRONIC RECORD; ELEC- 16 TRONIC SIGNATURE; INFORMATION; PERSON; 17 RECORD.—The terms ‘‘electronic’’, ‘‘electronic 18 record’’, ‘‘electronic signature’’, ‘‘information’’, ‘‘per- 19 son’’, and ‘‘record’’ have the meanings given those 20 terms in section 106 of the Electronic Signatures in 21 Global and National Commerce Act (15 U.S.C. 22 7006). 23 (3) LAW.—The term ‘‘law’’ includes any stat- 24 ute, regulation, rule, or rule of law. 25 VerDate Sep 11 2014 05:23 May 27, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1625.IS S1625 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1625 IS (4) NOTARIAL OFFICER.—The term ‘‘notarial 1 officer’’ means— 2 (A) a notary public; or 3 (B) any other individual authorized to per- 4 form a notarization under the laws of a State 5 without a commission or appointment as a no- 6 tary public. 7 (5) NOTARIAL OFFICER’S STATE; NOTARY PUB- 8 LIC’S STATE.—The term ‘‘notarial officer’s State’’ or 9 ‘‘notary public’s State’’ means the State in which a 10 notarial officer, or a notary public, as applicable, is 11 authorized to perform a notarization. 12 (6) NOTARIZATION.—The term ‘‘notariza- 13 tion’’— 14 (A) means any act that a notarial officer 15 may perform under— 16 (i) Federal law, including this Act; or 17 (ii) the laws of the notarial officer’s 18 State; and 19 (B) includes any act described in subpara- 20 graph (A) and performed by a notarial officer— 21 (i) with respect to— 22 (I) a tangible record; or 23 (II) an electronic record; and 24 (ii) for— 25 VerDate Sep 11 2014 05:23 May 27, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1625.IS S1625 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1625 IS (I) an individual in the physical 1 presence of the notarial officer; or 2 (II) a remotely located individual. 3 (7) NOTARY PUBLIC.—The term ‘‘notary pub- 4 lic’’ means an individual commissioned or appointed 5 as a notary public to perform a notarization under 6 the laws of a State. 7 (8) PERSONAL KNOWLEDGE.—The term ‘‘per- 8 sonal knowledge’’, with respect to the identity of an 9 individual, means knowledge of the identity of the 10 individual through dealings sufficient to provide rea- 11 sonable certainty that the individual has the identity 12 claimed. 13 (9) REMOTELY LOCATED INDIVIDUAL.—The 14 term ‘‘remotely located individual’’, with respect to 15 a notarization, means an individual who is not in the 16 physical presence of the notarial officer performing 17 the notarization. 18 (10) REQUIREMENT.—The term ‘‘requirement’’ 19 includes a duty, a standard of care, and a prohibi- 20 tion. 21 (11) SIGNATURE.—The term ‘‘signature’’ 22 means— 23 (A) an electronic signature; or 24 VerDate Sep 11 2014 05:23 May 27, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1625.IS S1625 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1625 IS (B) a tangible symbol executed or adopted 1 by a person and evidencing the present intent 2 to authenticate or adopt a record. 3 (12) SIMULTANEOUSLY.—The term ‘‘simulta- 4 neously’’, with respect to a communication between 5 parties— 6 (A) means that each party communicates 7 substantially simultaneously and without unrea- 8 sonable interruption or disconnection; and 9 (B) includes any reasonably short delay 10 that is inherent in, or common with respect to, 11 the method used for the communication. 12 (13) STATE.—The term ‘‘State’’— 13 (A) means— 14 (i) any State of the United States; 15 (ii) the District of Columbia; 16 (iii) the Commonwealth of Puerto 17 Rico; 18 (iv) any territory or possession of the 19 United States; and 20 (v) any federally recognized Indian 21 Tribe; and 22 (B) includes any executive, legislative, or 23 judicial agency, court, department, board, of- 24 fice, clerk, recorder, register, registrar, commis- 25 VerDate Sep 11 2014 05:23 May 27, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1625.IS S1625 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1625 IS sion, authority, institution, instrumentality, 1 county, municipality, or other political subdivi- 2 sion of an entity described in any of clauses (i) 3 through (v) of subparagraph (A). 4 SEC. 3. AUTHORIZATION TO PERFORM AND MINIMUM 5 STANDARDS FOR ELECTRONIC NOTARIZA- 6 TION. 7 (a) AUTHORIZATION.—Unless prohibited under sec- 8 tion 10, and subject to subsection (b), a notary public may 9 perform a notarization that occurs in or affects interstate 10 commerce with respect to an electronic record. 11 (b) REQUIREMENTS OF ELECTRONIC NOTARIZA- 12 TION.—If a notary public performs a notarization under 13 subsection (a), the following requirements shall apply with 14 respect to the notarization: 15 (1) The electronic signature of the notary pub- 16 lic, and all other information required to be included 17 under other applicable law, shall be attached to or 18 logically associated with the electronic record. 19 (2) The electronic signature and other informa- 20 tion described in paragraph (1) shall be bound to 21 the electronic record in a manner that renders any 22 subsequent change or modification to the electronic 23 record evident. 24 VerDate Sep 11 2014 05:23 May 27, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1625.IS S1625 kjohnson on DSK79L0C42PROD with BILLS 7 •S 1625 IS SEC. 4. AUTHORIZATION TO PERFORM AND MINIMUM 1 STANDARDS FOR REMOTE NOTARIZATION. 2 (a) AUTHORIZATION.—Unless prohibited under sec- 3 tion 10, and subject to subsection (b), a notary public may 4 perform a notarization that occurs in or affects interstate 5 commerce for a remotely located individual. 6 (b) REQUIREMENTS OF REMOTE NOTARIZATION.—If 7 a notary public performs a notarization under subsection 8 (a), the following requirements shall apply with respect to 9 the notarization: 10 (1) The remotely located individual shall appear 11 personally before the notary public at the time of the 12 notarization by using communication technology. 13 (2) The notary public shall— 14 (A) reasonably identify the remotely lo- 15 cated individual— 16 (i) through personal knowledge of the 17 identity of the remotely located individual; 18 or 19 (ii) by obtaining satisfactory evidence 20 of the identity of the remotely located indi- 21 vidual by— 22 (I) using not fewer than 2 dis- 23 tinct types of processes or services 24 through which a third person provides 25 a means to verify the identity of the 26 VerDate Sep 11 2014 05:23 May 27, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1625.IS S1625 kjohnson on DSK79L0C42PROD with BILLS 8 •S 1625 IS remotely located individual through a 1 review of public or private data 2 sources; or 3 (II) oath or affirmation of a 4 credible witness who— 5 (aa)(AA) is in the physical 6 presence of the notary public or 7 the remotely located individual; 8 or 9 (BB) appears personally be- 10 fore the notary public and the re- 11 motely located individual by 12 using communication technology; 13 (bb) has personal knowledge 14 of the identity of the remotely lo- 15 cated individual; and 16 (cc) has been identified by 17 the notary public under clause (i) 18 or subclause (I) of this clause; 19 (B) either directly or through an agent— 20 (i) create an audio and visual record- 21 ing of the performance of the notarization; 22 and 23 (ii) notwithstanding any resignation 24 from, or revocation, suspension, or termi- 25 VerDate Sep 11 2014 05:23 May 27, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1625.IS S1625 kjohnson on DSK79L0C42PROD with BILLS 9 •S 1625 IS nation of, the notary public’s commission 1 or appointment, retain the recording cre- 2 ated under clause (i) as a notarial 3 record— 4 (I) for a period of not less 5 than— 6 (aa) if an applicable law of 7 the notary public’s State specifies 8 a period of retention, the greater 9 of— 10 (AA) that specified pe- 11 riod; or 12 (BB) 5 years after the 13 date on which the recording 14 is created; or 15 (bb) if no applicable law of 16 the notary public’s State specifies 17 a period of retention, 10 years 18 after the date on which the re- 19 cording is created; and 20 (II) if any applicable law of the 21 notary public’s State govern the con- 22 tent, manner or place of retention, se- 23 curity, use, effect, or disclosure of 24 such recording or any information 25 VerDate Sep 11 2014 05:23 May 27, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1625.IS S1625 kjohnson on DSK79L0C42PROD with BILLS 10 •S 1625 IS contained in the recording, in accord- 1 ance with those laws; and 2 (C) if the notarization is performed with 3 respect to a tangible or electronic record, take 4 reasonable steps to confirm that the record be- 5 fore the notary public is the same record with 6 respect to which the remotely located individual 7 made a statement or on which the individual ex- 8 ecuted a signature. 9 (3) If a guardian, conservator, executor, per- 10 sonal representative, administrator, or similar fidu- 11 ciary or successor is appointed for or on behalf of 12 a notary public or a deceased notary public under 13 applicable law, that person shall retain the recording 14 under paragraph (2)(B)(ii), unless— 15 (A) another person is obligated to retain 16 the recording under applicable law of the notary 17 public’s State; or 18 (B)(i) under applicable law of the notary 19 public’s State, that person may transmit the re- 20 cording to an office, archive, or repository ap- 21 proved or designated by the State; and 22 (ii) that person transmits the recording to 23 the office, archive, or repository described in 24 VerDate Sep 11 2014 05:23 May 27, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1625.IS S1625 kjohnson on DSK79L0C42PROD with BILLS 11 •S 1625 IS clause (i) in accordance with applicable law of 1 the notary public’s State. 2 (4) If the remotely located individual is phys- 3 ically located outside the geographic boundaries of a 4 State, or is otherwise physically located in a location 5 that is not subject to the jurisdiction of the United 6 States, at the time of the notarization— 7 (A) the record shall— 8 (i) be intended for filing with, or re- 9 late to a matter before, a court, govern- 10 mental entity, public official, or other enti- 11 ty that is subject to the jurisdiction of the 12 United States; or 13 (ii) involve property located in the ter- 14 ritorial jurisdiction of the United States or 15 a transaction substantially connected to 16 the United States; and 17 (B) the act of making the statement or 18 signing the record may not be prohibited by a 19 law of the jurisdiction in which the individual is 20 physically located. 21 (c) PERSONAL APPEARANCE SATISFIED.—If a State 22 or Federal law requires an individual to appear personally 23 before or be in the physical presence of a notary public 24 VerDate Sep 11 2014 05:23 May 27, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1625.IS S1625 kjohnson on DSK79L0C42PROD with BILLS 12 •S 1625 IS at the time of a notarization, that requirement shall be 1 considered to be satisfied if— 2 (1) the individual— 3 (A) is a remotely located individual; and 4 (B) appears personally before the notary 5 public at the time of the notarization by using 6 communication technology; and 7 (2)(A) the notarization was performed under or 8 relates to a public act, record, or judicial proceeding 9 of the notary public’s State; or 10 (B) the notarization occurs in or affects inter- 11 state commerce. 12 SEC. 5. RECOGNITION OF NOTARIZATIONS IN FEDERAL 13 COURT. 14 (a) RECOGNITION OF VALIDITY.—Each court of the 15 United States shall recognize as valid under the State or 16 Federal law applicable in a judicial proceeding before the 17 court any notarization performed by a notarial officer of 18 any State if the notarization is valid under the laws of 19 the notarial officer’s State or under this Act. 20 (b) LEGAL EFFECT OF RECOGNIZED NOTARIZA- 21 TION.—A notarization recognized under subsection (a) 22 shall have the same effect under the State or Federal law 23 applicable in the applicable judicial proceeding as if that 24 notarization was validly performed— 25 VerDate Sep 11 2014 05:23 May 27, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1625.IS S1625 kjohnson on DSK79L0C42PROD with BILLS 13 •S 1625 IS (1)(A) by a notarial officer of the State, the law 1 of which is applicable in the proceeding; or 2 (B) under this Act or other Federal law; and 3 (2) without regar [Text truncated for display. 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