HB3796 103RD GENERAL ASSEMBLY

LRB103 30142 DTM 56566 b

103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
HB3796

Introduced 2/17/2023, by Rep. Stephanie A. Kifowit

SYNOPSIS AS INTRODUCED:

5 ILCS 312/1-104	from Ch. 102, par. 201-104
5 ILCS 312/2-105	from Ch. 102, par. 202-105
5 ILCS 312/6-102.5
5 ILCS 312/6-102.75 new
5 ILCS 312/6A-104

Amends the Illinois Notary Public Act. Defines "e-mail communication", "government employee", "public body", and "recorded". Makes changes to the definition of "remote notarial act" to allow notarial acts to be performed by email. Authorizes surety bonds to be obtained through email. Allows a public body to establish a signature depository wherein signatures may be used by the public body notaries for future notarization.

A BILL FOR

AN ACT concerning government.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Illinois Notary Public Act is amended by changing Sections 1-104, 2-105, 6-102.5, and 6A-104 and by adding Section 6-102.75 as follows:

(5 ILCS 312/1-104) (from Ch. 102, par. 201-104)

(Text of Section before amendment by P.A. 102-160)

Sec. 1-104. Notary Public and Notarization Defined.

(a) The terms "notary public" and "notary" are used interchangeably to mean any individual appointed and commissioned to perform notarial acts.

(b) "Notarization" means the performance of a notarial act.

(c) "Accredited immigration representative" means a not-for-profit organization recognized by the Board of Immigration Appeals under 8 C.F.R. 292.2(a) and employees of those organizations accredited under 8 C.F.R. 292.2(d).

(Source: P.A. 93-1001, eff. 8-23-04.)

(Text of Section after amendment by P.A. 102-160)

Sec. 1-104. Definitions. As used in this Act:

"Accredited immigration representative" means a not for profit organization recognized by the Board of Immigration Appeals under 8 C.F.R. 292.29(a) and employees of those organizations accredited under 8 C.F.R. 292.29(d).

"Acknowledgment" means a declaration by an individual before a notarial officer that the individual has signed a record for the purpose stated in the record and, if the record is signed in a representative capacity, that the individual signed the record with proper authority and signed it as the act of the individual or entity identified in the record.

"Audio-video communication" means communication by which a person is able to see, hear, and communicate with another person in real time using electronic means.

"Communication technology" means an electronic device or process that allows a notary public and a remotely located individual to communicate with each other simultaneously by audio-video communication.

"Credential" means a tangible record evidencing the identity of a person, including a valid and unexpired identification card or other document issued by the federal government or any state government that contains the photograph and signature of the principal.

"Digital certificate" means a computer-based record or electronic file to a notary public or applicant for commission as an electronic notary public for the purpose of creating an official electronic signature. The digital certificate shall be kept in the exclusive control of the electronic notary public.

"Dynamic knowledge based authentication assessment" means an identity assessment that is based on a set of questions formulated from public or private data sources for which the person taking the assessment has not previously provided an answer that meets any rules adopted by the Secretary of State.

"Electronic" means of or relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

"Electronic document" means information that is created, generated, sent, communicated, received, or stored by electronic means.

"Electronic notarial act" means an act that an electronic notary public of this State is authorized to perform. The term includes:

(1) taking an acknowledgment;

(2) administering an oath or affirmation;

(3) executing a jurat;

(4) certifying a true and correct copy; and

(5) performing such other duties as may be prescribed by a specific statute.

"Electronic notarial certificate" means the portion of a notarized electronic document that is completed by an online notary public and contains the following:

(1) the electronic notary public's electronic signature, electronic seal, title, and commission expiration date;

(2) other required information concerning the date and placement of the electronic notarization; and

(3) the facts attested to or certified by the electronic notary public in the particular notarization.

"Electronic notarial certificate" includes the form of an acknowledgment, jurat, verification on oath or affirmation, or verification of witness or attestation that is completed remotely by an electronic notary public and:

(1) contains the electronic notary's electronic signature, electronic seal, title and commission, and expiration date;

(2) contains other required information concerning the date and place of the electronic notarization;

(3) otherwise conforms to the requirements for an acknowledgment, jurat, verification on oath or affirmation, or verification of witness or attestation under the laws of this State; and

(4) indicates that the person making the acknowledgment, oath, or affirmation appeared.

"Electronic notarization system" means a set of applications, programs, hardware, software, or technology to enable an electronic notary to perform electronic notarial acts through audio-video communication.

"Electronic notary public" means a person commissioned by the Secretary of State to perform electronic notarial acts.

"Electronic presentation" means the transmission of a quality image of a government-issued identification credential to an electronic notary public through communication technology for the purpose of enabling the electronic notary public to identify the person appearing before the electronic notary public and to perform a credential analysis.

"Electronic record" means a record created, generated, sent, communicated, received, or stored by electronic means.

"Electronic seal" means information within a notarized electronic document that includes the names, commission number, jurisdiction, and expiration date of the commission of an electronic notary public and generally includes the information required to be set forth in a mechanical stamp under subsection (b-5) of Section 3-101.

"Electronic signature" means the official signature of the commissioned notary that is on file with the Secretary of State and has been reduced to an electronic format that may be attached to or logically associated with a record and executed or adopted by an individual with the intent to sign the record.

"Email communication" means an email message in which the signatory authorizes the notary to complete a remote notarial act and to affix the signature maintained in the signatory depository.

"Government employee" means any individual employed by any judicial, legislative, executive, administrative, or advisory body of the State, any State university or college, any county, any township, any city, any village, any incorporated town, any school district, and any other municipal corporation, board, bureau, committee, or commission of this State or any subsidiary body of any of the foregoing.

"Identity proofing" means a process or service operating according to criteria approved by the Secretary of state through which a third person affirms the identity of an individual through review of personal information from public and proprietary data sources, including (a) by means of dynamic knowledge-based authentication, such as a review of personal information from public or proprietary data sources; or (b) by means of analysis of biometric data, such as, but not limited to, facial recognition, voiceprint analysis, or fingerprint analysis.

"In the presence of" or "appear before" means:

(1) being in the same physical location as another person and close enough to see, hear, communicate with and exchange credentials with that person; or

(2) being in a different physical location from another person, but able to see, hear, and/or communicate with the person by means of audio-video communication that meets any rules adopted by the Secretary of State.

"Notarial act" means an act, whether performed with respect to a tangible or electronic record, that a notary public, a remote notary public, or an electronic notary public may perform under the laws of this State. "Notary act" includes taking an acknowledgment, administering an oath, or affirmation, taking a verification on oath, or affirmation, witnessing or attesting a signature, certifying or attesting a copy, and noting a protest of a negotiable instrument.

"Notary public" or "notary" means an individual commissioned to perform notarial acts.

"Notarization" means the performance of a notarial act.

"Outside the United States" means a location outside of the geographic boundaries of a state or commonwealth of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, and any territory, or insular possession, or other location subject to the jurisdiction of the United States.

"Principal" means an individual:

(1) whose signature is notarized; or

"Public body" means all judicial, legislative, executive, administrative, or advisory bodies of the State, a State university or college, a county, a township, a city, a village, an incorporated town, a school district and any other municipal corporation, board, bureau, committee, or commission of this State or any subsidiary body of any of the foregoing.

(2) taking an oath or affirmation from the notary but not in the capacity of a witness for the notarization.

"Public key certificate" means an electronic credential which is used to identify an individual who signed an electronic record with the certificate.

"Real time" means the actual span of uninterrupted time during which all parts of an electronic notarial act occur.

"Recorded" means captured via two-way video or captured via email exchange.

"Remote notarial act" means a notarial act that is done by way of audio-video communication technology or email communication that allows for direct, contemporaneous interaction between the government employee individual signing the document (the signatory) and a government employee the witness by audio-video communication or email communication sight and sound but that requires the notary public to use his or her physical stamp and seal to notarize the document without the aid of an electronic seal or signature.

"Remote notary public" means any notary public that performs a remote notarial act.

"Tamper evident" means that any change to an electronic document shall display evidence of the change.

"Unique to the electronic notary public" and "sole control" mean, with respect to an electronic notarization that the signing device used to affix the electronic signature of the electronic notary public and to render the official electronic seal information tamper evident must be accessible by and attributable solely to the electronic notary public to the exclusion of all other persons and entities for the necessary period of time that such device is engaged and operating to effectuate the authorized electronic notarization.

(Source: P.A. 102-160 (See Section 99 of P.A. 102-160 for effective date of P.A. 102-160).)

(5 ILCS 312/2-105) (from Ch. 102, par. 202-105)

(Text of Section before amendment by P.A. 102-160)

Sec. 2-105. Bond. Every application for appointment and commission as a notary public shall be accompanied by an executed bond commencing on the date of the appointment with a term of 4 years, in the sum of $5,000, with, as surety thereon, a company qualified to write surety bonds in this State. The bond shall be conditioned upon the faithful performance of all notarial acts in accordance with this Act. The Secretary of State may prescribe an official bond form.

(Source: P.A. 84-322.)

(Text of Section after amendment by P.A. 102-160)

Sec. 2-105. Bond.

(a) Every application for appointment and commission as a notary public shall be accompanied by or logically associated with an executed bond commencing on the date of the appointment with a term of 4 years, in the sum of $5,000, with, as surety thereon, a company qualified to write surety bonds in this State. The bond shall be conditioned upon the faithful performance of all notarial acts in accordance with this Act. The Secretary of State may prescribe an official bond form.

(b) A notary public that performs notarizations either remotely or electronically and by means of audio-video communication or email communication shall obtain and maintain a surety bond in the amount of $25,000 from a surety or insurance company licensed to do business in this State, and this bond shall be exclusively conditioned on the faithful performance of remote notarial acts or electronic notarial acts by means of audio-video communication or email communication. When a notary is required to hold both the $5,000 bond and the $25,000 bond, one bond totaling $30,000 shall satisfy the provisions of this Section.

(c) The bonding company issuing the bond to a notary public or an electronic notary public shall submit verification of the bond information for the notary to the Secretary of State in a format prescribed by the Secretary of State.

(Source: P.A. 102-160 (See Section 99 of P.A. 102-160 for effective date of P.A. 102-160).)

(5 ILCS 312/6-102.5)

(This Section may contain text from a Public Act with a delayed effective date)

Sec. 6-102.5. Remote notarial acts.

(a) Any commissioned notary public may perform any notarial act described under Section 6-102 remotely, after first determining, either from personal knowledge or from satisfactory evidence, that the signature is that of the person appearing before the notary and named therein. A notary public has satisfactory evidence that a person is the person whose true signature is on a document if that person:

(1) is personally known to the notary;

(2) is identified upon the oath or affirmation of a credible witness personally known to the notary; or

(3) is identified on the basis of identification documents. Identification documents are documents that are (i) valid at the time of the notarial act, (ii) issued by a State agency, federal government agency, or consulate, and (iii) bearing the photographic image of the individual's face and signature of the individual.

(b) A remote notarial action must be performed in accordance with the following audio-video communication requirements:

(1) Two-way audio-video communication or email communication technology must allow for remotely located notaries and principals to engage in direct, contemporaneous interaction between the individual signing the document (signatory) and the witness by sight, and sound, or writing.

(2) The two-way audio video communication or email communication technology must be recorded and preserved by the signatory or the signatory's designee for a period of at least 3 years if otherwise required by law.

(3) The signatory must attest to being physically located in Illinois during the two-way audio-video communication or email communication.

(4) The signatory must affirmatively state on the two-way audio-video communication or email communication what document the signatory is signing.

(5) Each page of the document being witnessed must be shown to the witness on the two-way audio-video communication or email communication technology in a means clearly legible to the witness.

(6) The act of signing must be captured sufficiently up close on the two-way audio-video communication or email communication for the witness to observe.

(c) Application of the notary's seal and signature:

(1) The signatory must transmit by overnight mail, fax, or electronic means a legible copy of the entire signed document directly to the notary no later than the day after the document is signed.

(2) The notary must sign the transmitted copy of the document as a witness and transmit the signed copy of the document back to the signatory via overnight mail, fax, or electronic means within 24 hours after receipt.

(3) If necessary, the notary may sign the original signed document as of the date of the original execution by the signatory provided that the witness receives the original signed document together with the electronically witnessed copy within 30 days after the date of the remote notarization.

(d) The Secretary of State shall adopt administrative rules to implement this Section.

(Source: P.A. 102-160 (See Section 99 of P.A. 102-160 for effective date of P.A. 102-160).)

(5 ILCS 312/6-102.75 new)

Sec. 6-102.75. Signature Depository.

(a) A public body that wishes for notaries employed by that public body to complete remote notarial acts may establish a signature depository wherein signatures may be used by the public body notaries for future notarization.

(b) In order for a signature to be entered into the depository, the signatory must:

(1) obtain proper notarization of the document as required by Section 6-102 of this Act; and

(2) submit a copy of that document, within 30 business days of the notarization, to the person designated as responsible for maintaining the depository.

(c) A signatory may then request a remote notarial act via email communication.

(5 ILCS 312/6A-104)

(This Section may contain text from a Public Act with a delayed effective date)

Sec. 6A-104. Requirements for audio-video communication.

(a) An electronic notary public shall arrange for a recording to be made of each electronic notarial act performed using audio-video communication. The audio-video recording required by this Section shall be in addition to the journal entry for the electronic notarial act required by Section 3-107. Before performing any electronic notarial act using audio-video communication, the electronic notary public must inform all participating persons that the electronic notarization will be electronically recorded.

(b) If the person for whom the electronic notarial act is being performed is identified by personal knowledge, the recording of the electronic notarial act must include an explanation by the electronic notary public as to how he or she knows the person and how long he or she has known the person.

(c) If the person for whom the electronic notarial act is being performed is identified by a credible witness:

(1) the credible witness must appear before the electronic notary public; and

(2) the recording of the electronic notarial act must include:

(A) a statement by the electronic notary public as to whether he or she identified the credible witness by personal knowledge or satisfactory evidence; and

(B) an explanation by the credible witness as to how he or she knows the person for whom the electronic notarial act is being performed and how long he or she has known the person.

(d) If otherwise required by law, an An electronic notary public shall keep a recording made pursuant to this Section for a period of not less than 7 years, regardless of whether the electronic notarial act was actually completed.

(e) An electronic notary public who performs an electronic notarial act for a principal by means of audio-video communication shall be located within the State of Illinois at the time the electronic notarial act is performed. The electronic notary public shall include a statement in the electronic notarial certificate to indicate that the electronic notarial act was performed by means of audio-video communication. The statement may also be included in the electronic notarial seal.

(f) An electronic notary public who performs an electronic notarial act for a principal by means of audio-video communication shall:

(1) be located within this State at the time the electronic notarial act is performed;

(2) execute the electronic notarial act in a single recorded session that complies with Section 6A-103;

(3) be satisfied that any electronic record that is electronically signed, acknowledged, or otherwise presented for electronic notarization by the principal is the same record electronically signed by the electronic notary;

(4) be satisfied that the quality of the audio-video communication is sufficient to make the determination required for the electronic notarial act under this Act and any other law of this State; and

(5) identify the venue for the electronic notarial act as the jurisdiction within Illinois where the notary is physically located while performing the act.

(g) An electronic notarization system used to perform electronic notarial acts by means of audio-video communication shall conform to the requirements set forth in this Act and by administrative rules adopted by the Secretary of State.

(h) The provisions of Section 3-107 related respectively to security, inspection, copying, and disposition of the journal shall also apply to security, inspection, copying, and disposition of audio-video recordings required by this Section.

(i) The Secretary of State shall adopt administrative rules to implement this Section.

(Source: P.A. 102-160 (See Section 99 of P.A. 102-160 for effective date of P.A. 102-160).)

Section 95. No acceleration or delay. Where this Act makes changes in a statute that is represented in this Act by text that is not yet or no longer in effect (for example, a Section represented by multiple versions), the use of that text does not accelerate or delay the taking effect of (i) the changes made by this Act or (ii) provisions derived from any other Public Act.