Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2020

II 116TH CONGRESS 2D SESSION S. 3533 To authorize and establish minimum standards for electronic and remote notarizations that occur in or affect interstate commerce, to require any Federal court located in a State to recognize notarizations performed by a notary public commissioned by another State when the notarization occurs in or affects interstate commerce, and to require any State to recognize notarizations performed by a notary public commissioned by another State when the notarization occurs in or affects interstate com- merce or when the notarization was performed under or relates to a public act, record, or judicial proceeding of the State in which the notary public was commissioned. IN THE SENATE OF THE UNITED STATES MARCH 18, 2020 Mr. CRAMER introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To authorize and establish minimum standards for electronic and remote notarizations that occur in or affect inter- state commerce, to require any Federal court located in a State to recognize notarizations performed by a notary public commissioned by another State when the notarization occurs in or affects interstate commerce, and to require any State to recognize notarizations per- formed by a notary public commissioned by another State when the notarization occurs in or affects interstate com- merce or when the notarization was performed under or relates to a public act, record, or judicial proceeding VerDate Sep 11 2014 01:54 Apr 02, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\S3533.IS S3533 kjohnson on DSK79L0C42PROD with BILLS 2 •S 3533 IS of the State in which the notary public was commis- sioned. 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 2020’’. 6 SEC. 2. DEFINITIONS. 7 In this Act: 8 (1) COMMISSIONED.—The term ‘‘commis- 9 sioned’’, with respect to a notary public, includes a 10 notary public who is appointed and licensed. 11 (2) ELECTRONIC; ELECTRONIC RECORD; ELEC- 12 TRONIC SIGNATURE; INFORMATION; PERSON; 13 RECORD.—The terms ‘‘electronic’’, ‘‘electronic 14 record’’, ‘‘electronic signature’’, ‘‘information’’, ‘‘per- 15 son’’, and ‘‘record’’ have the meanings given those 16 terms in section 106 of the Electronic Signatures in 17 Global and National Commerce Act (15 U.S.C. 18 7006). 19 (3) LAW.—The term ‘‘law’’ includes any stat- 20 ute, regulation, or rule. 21 (4) NOTARIZATION.—The term ‘‘notarization’’ 22 includes any act— 23 VerDate Sep 11 2014 01:54 Apr 02, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3533.IS S3533 kjohnson on DSK79L0C42PROD with BILLS 3 •S 3533 IS (A) that a notary public may perform 1 under Federal law, including this Act, or under 2 the laws of the State in which the notary public 3 is commissioned, without regard to whether the 4 notary public performs the act— 5 (i) with respect to a tangible or elec- 6 tronic record; or 7 (ii) in an individual, official, or rep- 8 resentative capacity; and 9 (B) in which an individual making a state- 10 ment or executing a record is not in the phys- 11 ical presence of a notary public but is able to 12 communicate with the notary public simulta- 13 neously by sight and sound through an elec- 14 tronic device or process at the time of the act. 15 (5) REQUIREMENT.—The term ‘‘requirement’’ 16 includes a duty, a standard of care, and a prohibi- 17 tion. 18 (6) SIMULTANEOUSLY.—The term ‘‘simulta- 19 neously’’, with respect to a communication between 20 parties— 21 (A) means that each party communicates 22 substantially simultaneously and without unrea- 23 sonable interruption or disconnection; and 24 VerDate Sep 11 2014 01:54 Apr 02, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3533.IS S3533 kjohnson on DSK79L0C42PROD with BILLS 4 •S 3533 IS (B) includes a reasonably short delay that 1 is inherent in, or common with respect to, the 2 method used for the communication. 3 (7) STAMP OR SEAL OF OFFICE.—The term 4 ‘‘stamp or seal of office’’ means an image that— 5 (A) contains information as specified under 6 the law of the State in which a notary public 7 is commissioned; 8 (B) a notary public uses to authenticate 9 the notarization of a record; and 10 (C) may consist of— 11 (i) a physical image or impression af- 12 fixed to or embossed on a tangible record; 13 or 14 (ii) an electronic image attached to, or 15 logically associated with, an electronic 16 record. 17 (8) STATE.—The term ‘‘State’’— 18 (A) means— 19 (i) any State of the United States; 20 (ii) the District of Columbia; 21 (iii) the Commonwealth of Puerto 22 Rico; 23 (iv) any territory or possession of the 24 United States; and 25 VerDate Sep 11 2014 01:54 Apr 02, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3533.IS S3533 kjohnson on DSK79L0C42PROD with BILLS 5 •S 3533 IS (v) any federally recognized Indian 1 tribe; and 2 (B) includes any executive, legislative, or 3 judicial agency, court, department, board, of- 4 fice, clerk, recorder, register, commission, au- 5 thority, institution, instrumentality, county, 6 municipality, or other political subdivision of an 7 entity described in any of clauses (i) through 8 (v) of subparagraph (A). 9 SEC. 3. AUTHORIZATION TO PERFORM AND MINIMUM 10 STANDARDS FOR ELECTRONIC NOTARIZA- 11 TION. 12 A notary public commissioned under the laws of a 13 State may perform a notarization that occurs in or affects 14 interstate commerce with respect to an electronic record, 15 if— 16 (1)(A) a stamp or seal of office is attached to 17 or logically associated with the electronic record; or 18 (B) the electronic signature of the notary pub- 19 lic, and all other information required to be included 20 under other applicable law, is attached to or logically 21 associated with the signature or record; and 22 (2) the stamp or seal of office, electronic signa- 23 ture, or other information described in paragraph 24 (1) is securely bound to the electronic record in a 25 VerDate Sep 11 2014 01:54 Apr 02, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3533.IS S3533 kjohnson on DSK79L0C42PROD with BILLS 6 •S 3533 IS manner that is capable of independent verification 1 and renders any subsequent change or modification 2 to the electronic record evident. 3 SEC. 4. AUTHORIZATION TO PERFORM AND MINIMUM 4 STANDARDS FOR REMOTE NOTARIZATION. 5 (a) REQUIREMENTS OF REMOTE NOTARIZATION.—A 6 notary public commissioned under the laws of a State may 7 perform a notarization that occurs in or affects interstate 8 commerce for an individual not in the physical presence 9 of the notary public, if— 10 (1) the individual and the notary public are able 11 to communicate simultaneously by sight and sound 12 through an electronic device or process at the time 13 of the notarization; 14 (2) the notary public— 15 (A) has reasonably identified the individual 16 through— 17 (i) personal knowledge of the indi- 18 vidual; 19 (ii) not fewer than 2 distinct types of 20 processes or services through which a third 21 person provides a means to verify the iden- 22 tity of the individual through a review of 23 public or private data sources; or 24 VerDate Sep 11 2014 01:54 Apr 02, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3533.IS S3533 kjohnson on DSK79L0C42PROD with BILLS 7 •S 3533 IS (iii) oath or affirmation of a credible 1 witness who— 2 (I)(aa) is in the physical presence 3 of the notary public or the individual; 4 or 5 (bb) is able to communicate with 6 the notary public and the individual 7 simultaneously by sight and sound 8 through an electronic device or proc- 9 ess at the time of the notarization; 10 (II) has personal knowledge of 11 the individual; and 12 (III) has been reasonably identi- 13 fied by the notary public under clause 14 (i) or (ii); and 15 (B) either directly or through an agent— 16 (i) creates an audio and visual record- 17 ing of the performance of the notarization; 18 and 19 (ii) retains the recording created 20 under clause (i)— 21 (I) as a notarial record during 22 the term of the notary public’s office, 23 including renewals of that term, un- 24 VerDate Sep 11 2014 01:54 Apr 02, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3533.IS S3533 kjohnson on DSK79L0C42PROD with BILLS 8 •S 3533 IS less a law of the State requires a dif- 1 ferent period of retention; and 2 (II) if any laws of the State gov- 3 ern the content, retention, security, 4 use, effect, and disclosure of that re- 5 cording and any information con- 6 tained in the recording, in accordance 7 with those laws; and 8 (3) with respect to an individual physically lo- 9 cated outside the geographic boundaries of a State 10 or other location subject to the jurisdiction of the 11 United States at the time of the notarization— 12 (A) the record— 13 (i) is intended for filing with, or re- 14 lates to a matter before, a court, govern- 15 mental entity, public official, or other enti- 16 ty subject to the jurisdiction of the United 17 States; or 18 (ii) involves property located in the 19 territorial jurisdiction of the United States 20 or a transaction substantially connected to 21 the United States; and 22 (B) the notary public has no actual knowl- 23 edge that the act of making the statement or 24 signing the record is prohibited by the laws of 25 VerDate Sep 11 2014 01:54 Apr 02, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3533.IS S3533 kjohnson on DSK79L0C42PROD with BILLS 9 •S 3533 IS the jurisdiction in which the individual is phys- 1 ically located. 2 (b) PERSONAL APPEARANCE SATISFIED.—If a State 3 or Federal law requires an individual to appear personally 4 before or be in the physical presence of a notary public 5 at the time of a notarization that occurs in or affects inter- 6 state commerce, that requirement is satisfied if the indi- 7 vidual and the notary public are not in the physical pres- 8 ence of each other but can communicate simultaneously 9 by sight and sound through an electronic device or process 10 at the time of the notarization. 11 SEC. 5. RECOGNITION OF NOTARIZATIONS IN FEDERAL 12 COURT. 13 Each court of the United States shall recognize any 14 notarization performed by a notary public commissioned 15 under the laws of a State other than the State in which 16 the court is located if— 17 (1) the notarization occurs in or affects inter- 18 state commerce; and 19 (2)(A) a stamp or seal of office is affixed or 20 embossed on a tangible record; or 21 (B) in the case of an electronic record— 22 (i) a stamp or seal of office is attached to 23 or logically associated with the electronic 24 record; or 25 VerDate Sep 11 2014 01:54 Apr 02, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3533.IS S3533 kjohnson on DSK79L0C42PROD with BILLS 10 •S 3533 IS (ii) the electronic signature of the notary 1 public, and all other information required to be 2 included under other applicable law, is attached 3 to or logically associated with the electronic 4 record. 5 SEC. 6. RECOGNITION BY STATE OF NOTARIZATIONS PER- 6 FORMED UNDER AUTHORITY OF ANOTHER 7 STATE. 8 Each State shall recognize as having the same effect 9 under the laws of that State as if performed by a notary 10 public of that State any notarization performed by a no- 11 tary public commissioned under the laws of any other 12 State if— 13 (1)(A) the notarization was performed under or 14 relates to a public act, record, or judicial proceeding 15 of the State in which the notary public is commis- 16 sioned; or 17 (B) the notarization occurs in or affects inter- 18 state commerce; and 19 (2)(A) a stamp or seal of office is affixed or 20 embossed on a tangible record; or 21 (B) in the case of an electronic record— 22 (i) a stamp or seal of office is attached to 23 or logically associated with the electronic 24 record; or 25 VerDate Sep 11 2014 01:54 Apr 02, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3533.IS S3533 kjohnson on DSK79L0C42PROD with BILLS 11 •S 3533 IS (ii) the electronic signature of the notary 1 public, and all other information required to be 2 included by other applicable law, is attached to 3 or logically associated with the electronic 4 record. 5 SEC. 7. ELECTRONIC AND REMOTE NOTARIZATION NOT RE- 6 QUIRED. 7 Nothing in this Act may be construed to require a 8 notary public commissioned under the laws of a State to 9 perform a notarization— 10 (1) with respect to an electronic record; 11 (2) for an individual not in the physical pres- 12 ence of the notary public; or 13 (3) using a technology that the notary public 14 has not selected. 15 SEC. 8. RIGHTS OF AGGRIEVED PERSONS NOT AFFECTED; 16 STATE LAWS ON THE PRACTICE OF LAW NOT 17 AFFECTED. 18 (a) IN GENERAL.—The validity and recognition of a 19 notarization under this Act may not be construed to pre- 20 vent an aggrieved person from seeking to invalidate a 21 record or transaction that is the subject of a notarization 22 or from seeking other remedies based on State or Federal 23 law other than this Act for any reason not addressed in 24 this Act, including on the basis— 25 VerDate Sep 11 2014 01:54 Apr 02, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S3533.IS S3533 kjohnson on DSK79L0C42PROD with BILLS 12 •S 3533 IS (1) that a person did not, with present intent 1 to authenticate or adopt a record— 2 (A) execute or adopt on the record a tan- 3 gible symbol; or 4 (B) attach to or logically associate with the 5 record an electronic signature; 6 (2) that an individual was incompetent, lacked 7 authority or capacity to execute the record, or did 8 not knowingly and voluntarily execute a record; or 9 (3) of fraud, forgery, mistake, misrepresenta- 10 tion, impersonation, duress, undue influence, or 11 other invalidating cause. 12 (b) RULE OF CONSTRUCTION.—Nothing in this Act 13 may be construed to affect a State law governing, author- 14 izing, or prohibiting the practice of law. 15 SEC. 9. EXCEPTION TO PREEMPTION. 16 A State law shall not be affected by a provision of 17 section 3 or 4 of this Act to the extent that the law— 18 (1) constitutes an enactment or adoption of the 19 Revised Uniform Law on Notarial Acts, as approved 20 and recommended for enactment in all States by the 21 National Conference of Commissioners on Uniform 22 State Laws in 2018, except that a modification to 23 such Act enacted by a State shall be preempted to 24 the extent the modification is inconsistent with this 25 VerDate Sep 11 2014 01:54 Apr 02, 2020 Jkt 099200 PO 00000 Frm 0001 [Text truncated for display. Full text available on Congress.gov.]