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AB-1093 Remote online notaries public.(2021-2022)

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Date Published: 01/03/2022 09:00 PM
AB1093:v97#DOCUMENT

Amended  IN  Assembly  January 03, 2022
Amended  IN  Assembly  March 18, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 1093


Introduced by Assembly Member Jones-Sawyer

February 18, 2021


An act to amend Sections 1182 and 1183 of, and to add Section 1181.1 to, the Civil Code, and to amend Sections 8207.4 and 8214.1 of, to add the heading of Article 1 (commencing with Section 8200) to, and to add Article 2 (commencing with Section 8231) to, Chapter 3 of Division 1 of Title 2 of of, the Government Code, relating to notaries public.


LEGISLATIVE COUNSEL'S DIGEST


AB 1093, as amended, Jones-Sawyer. Remote online notaries public.
Existing law authorizes the Secretary of State to appoint and commission notaries public in the number the Secretary of State deems necessary for the public convenience. Existing law requires a notary public to keep one active sequential journal at a time of all official acts performed as a notary public. Existing law authorizes notaries public to act as notaries in any part of the state and prescribes the manner and method of notarizations. Existing law establishes various requirements to ensure the security of notary seals and imposes a civil penalty for a violation of those provisions.
The California Public Records Act requires that public records, as defined, be available to the public for inspection and made promptly available to any person.
This bill, the California Notary Protection Act, bill would authorize a notary public or an applicant for appointment as a notary public to apply for registration with the secretary to be a remote online notary public. The bill would authorize the secretary to adopt rules necessary to implement those provisions. public by submitting an application that meets certain requirements. The bill would also require an entity to register with the Secretary of State as an online notarization platform before providing an online notarization system, as defined, to an online notary public. The bill would require a representative of an online notarization platform to certify compliance with applicable laws under penalty of perjury. The bill also creates a civil cause of action against an online notarization platform for a violation of those laws. The bill would require the Secretary of State to develop an application for registration and establish rules to implement the bill by July 1, 2023.
This bill would authorize the Secretary of State to charge an applicant a fee for an application for registration in an amount necessary to administer the act. The bill would authorize an online notary public to perform notarial acts and online notarizations by means of audio-video communication. The bill would establish various requirements applicable to an online notary public, including requiring an online notary public to keep one or more secure electronic journals to record online notarial acts, requiring an electronic notarial certificate to be a specified form that is required to be signed under penalty of perjury, and requiring an online notary public to destroy certain information upon termination of a commission, as specified.
This bill would establish various requirements applicable to an online notarization platform, including prohibiting an online notarization platform from accessing, using, sharing, selling, disclosing, producing, providing, releasing, transferring, disseminating, or otherwise communicating the contents of an online notarial act, with specified exceptions. The bill would also make other conforming changes. The bill would impose requirements for ensuring the security of an electronic signature or electronic seal and would make a violation of those provisions subject to civil penalties. The bill would make a violation of those provisions grounds for refusal or revocation of a commission as an online notary public.
This bill would make it a misdemeanor for any person who, without authorization, knowingly obtains, conceals, damages, or destroys the certificate, disk, coding, card, program, software, or hardware enabling an online notary public to affix an official electronic signature or seal. The bill would make it a misdemeanor for an online notary public to willfully fail or refuse to deliver all notarial records and papers to the Secretary of State within 30 days of when the online notary public resigns, is disqualified, is removed from office, or allows the online notary public’s registration to expire. By creating new crimes, and by expanding the scope of the existing crime of perjury, this bill would impose a state-mandated local program.
This bill would exempt from the California Public Records Act records of online notarizations maintained by the Secretary of State.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NOYES  

The people of the State of California do enact as follows:


SECTION 1.

The Legislature finds and declares all of the following:

(a)Notarization is a key part of the real estate transaction process. Through notarization, a notary verifies the identity of the signer of a document.

(b)California notaries serve as the vital component of everyday life ensuring trusts, wills, power of attorneys, and financial transactions can be completed.

(c)Since the coronavirus (COVID-19) pandemic many individuals have chosen to use remote online notarization and avoid in person notarizations as a socially distanced alternative.

(d)Under current law, Californians who wish to have their documents notarized can use notaries in another state that currently allows remote online notarization leaving California-based notaries at a disadvantage.

(e)California needs to ensure that our California-based notaries are on the same footing as their counterparts in other states.

(f)States across the country have enacted remote online notarization legislation that allows for closing documents to be notarized without requiring all individuals to be physically present in the same room.

(g)Remote notarization is an established process that can allow the notarization of essential documents without physical presence.

(h)It is the intent of the Legislature to allow notaries public to apply for registration as a remote online notary public.

SECTION 1.

 Section 1181.1 is added to the Civil Code, to read:

1181.1.
 Section 1181 shall not be construed to authorize any person, other than an online notary public authorized by the Secretary of State to perform online notarizations pursuant to Article 2 (commencing with Section 8231) of Chapter 3 of Division 1 of Title 2 of the Government Code, to take a proof or acknowledgment of an instrument by means of appearances using audio-video communication, as that term is defined in subdivision (a) of Section 8231.1 of the Government Code.

SEC. 2.

 Section 1182 of the Civil Code is amended to read:

1182.
 (a) The proof or acknowledgment of an instrument may be made without this state, but within the United States, and within the jurisdiction of the officer, before any of the following:
(1) A justice, judge, or clerk of any court of record of the United States.
(2) A justice, judge, or clerk of any court of record of any state.
(3) A commissioner appointed by the Governor or Secretary of State for that purpose.
(4) A notary public.
(5) Any other officer of the state where the acknowledgment is made authorized by its laws to take such proof or acknowledgment.
(b) The proof or acknowledgment of an instrument may be made through online notarization by a notary public located without this state, but within the United States, if all of the following conditions are satisfied at the time of the notarial act:
(1) The principal is located without this state.
(2) The notarial act is one that is lawful for the notary public to perform through online notarization for the principal.
(3) Every online notarization platform involved in the notarial act is registered with the Secretary of State pursuant to Section 8231.14 of the Government Code.
(c) The terms “online notarization,” “online notarization platform,” and “principal” as used in subdivision (b) shall have the same meaning as in Section 8231.1 of the Government Code.

SEC. 3.

 Section 1183 of the Civil Code is amended to read:

1183.
 (a) The proof or acknowledgment of an instrument may be made without the United States, before any of the following:

(a)

(1) A minister, commissioner, or chargè d’affaires of the United States, resident and accredited in the country where the proof or acknowledgment is made.

(b)

(2) A consul, vice consul, or consular agent of the United States, resident in the country where the proof or acknowledgment is made.

(c)

(3) A judge of a court of record of the country where the proof or acknowledgment is made.

(d)

(4) Commissioners appointed by the Governor or Secretary of State for that purpose.

(e)

(5) A notary public.

If

(b) If the proof or acknowledgment is made before a notary public, the signature of the notary public shall be proved or acknowledged (1) before a judge of a court of record of the country where the proof or acknowledgment is made, or (2) by any American diplomatic officer, consul general, consul, vice consul, or consular agent, or (3) by an apostille (certification) affixed to the instrument pursuant to the terms of The Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents.
(c) This section shall not permit the proof or acknowledgment of an instrument made through online notarization by a notary public located without the United States.

SEC. 2.SEC. 4.

 The heading of Article 1 (commencing with Section 8200) is added to Chapter 3 of Division 1 of Title 2 of the Government Code, to read:
Article  1. Notaries Public

SEC. 5.

 Section 8207.4 of the Government Code is amended to read:

8207.4.
 (a) Any person who willfully violates any part of Section 8207.1, 8207.2, 8207.3, or 8207.4 8231.7 shall be subject to a civil penalty not to exceed one thousand five hundred dollars ($1,500) for each violation, which may be recovered in a civil action brought by the Attorney General or the district attorney or city attorney, or by a city prosecutor in any city and county.
(b) The penalty provided by this section is not an exclusive remedy, and does not affect any other relief or remedy provided by law.
(c) This section shall become operative on January 1, 1992.

SEC. 6.

 Section 8214.1 of the Government Code is amended to read:

8214.1.
 The Secretary of State may refuse to appoint any person as notary public or may revoke or suspend the commission of any notary public upon any of the following grounds:
(a) Substantial and material misstatement or omission in the application submitted to the Secretary of State to become a notary public.
(b) Conviction of a felony, a lesser offense involving moral turpitude, or a lesser offense of a nature incompatible with the duties of a notary public. A conviction after a plea of nolo contendere is deemed to be a conviction within the meaning of this subdivision.
(c) Revocation, suspension, restriction, or denial of a professional license, if the revocation, suspension, restriction, or denial was for misconduct based on dishonesty, or for any cause substantially relating to the duties or responsibilities of a notary public.
(d) Failure to discharge fully and faithfully any of the duties or responsibilities required of a notary public.
(e) When adjudicated liable for damages in any suit grounded in fraud, misrepresentation, or for a violation of the state regulatory laws, or in any suit based upon a failure to discharge fully and faithfully the duties as a notary public.
(f) The use of false or misleading advertising wherein the notary public has represented that the notary public has duties, rights, or privileges that he or she the notary public does not possess by law.
(g) The practice of law in violation of Section 6125 of the Business and Professions Code.
(h) Charging more than the fees prescribed by this chapter.
(i) Commission of any act involving dishonesty, fraud, or deceit with the intent to substantially benefit the notary public or another, or substantially injure another.
(j) Failure to complete the acknowledgment at the time the notary’s signature and seal are affixed to the document.
(k) Failure to administer the oath or affirmation as required by paragraph (3) of subdivision (a) of Section 8205.
(l) Execution of any certificate as a notary public containing a statement known to the notary public to be false.
(m) Violation of Section 8223.
(n) Failure to submit any remittance payable upon demand by the Secretary of State under this chapter or failure to satisfy any court-ordered money judgment, including restitution.
(o) Failure to secure the sequential journal of official acts, pursuant to Section 8206, or the official seal, pursuant to Section 8207, or willful failure to report the theft or loss of the sequential journal, pursuant to subdivision (b) of Section 8206.
(p) Violation of Section 8219.5.
(q) Commission of an act in violation of Section 6203, 8214.2, 8225, or 8227.3 of the Government Code or of Section 115, 470, 487, subdivision (a) of Section 487a, or Section 530.5 of the Penal Code.
(r) Willful failure to provide access to the sequential journal of official acts upon request by a peace officer.
(s) Violation of Section 8231.7.

SEC. 3.SEC. 7.

 Article 2 (commencing with Section 8231) is added to Chapter 3 of Division 1 of Title 2 of the Government Code, to read:
Article  2. California Notary Protection Act Online Notaries Public
8231.

This act shall be known, and may be cited, as the California Notary Protection Act.

8231.1.

(a)A notary public may apply for registration with the Secretary of State to be a remote online notary public.

(b)A remote online notary public is a notary public for purposes of Article 1 (commencing with Section 8200), and in order to become a remote online notary public, the person is required to also be a notary public pursuant to Article 1.

8231.
 This article shall be known, and may be cited, as the Online Notary Public Act.

8231.1.
 As used in this article, the following terms have the following meanings:
(a) “Audio-video communication” means being able to see, hear, and communicate with another individual in real time using electronic means in a manner that conforms to the requirements of this article and any rules adopted by the Secretary of State pursuant to this article.
(b) “Credential” means a record evidencing an individual’s identity that satisfies the requirements of Section 1185 of the Civil Code.
(c) “Credential analysis” means a process or service operating according to the requirements of this article and any rules adopted by the Secretary of State pursuant to this article, through which a third party affirms the validity of a credential through review of public and proprietary data sources.
(d) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(e) “Electronic journal” means an active sequential record of all official acts performed while using an online notarization platform performed by a person acting as an online notary public maintained in a secure electronic format according to the requirements of this article and any rules adopted by the Secretary of State pursuant to this article. An electronic journal shall be capable of providing both physical and electronic copies of any entry made therein.
(f) “Electronic online notarial certificate” means the part of, or attachment to, an electronic record that is completed by the online notary public and contains both of the following:
(1) The online notary public’s electronic signature and electronic seal or, where applicable, the online notary public’s electronic signature that meets the requirements of subdivision (f) of Section 27391, where applicable, and electronic seal.
(2) The facts attested to by the online notary public in the particular online notarization.
(g) “Electronic record” means a record created, generated, sent, communicated, received, or stored by electronic means.
(h) “Electronic seal” means information within a notarized electronic record that corresponds to information in notary seals used on paper records and that, where applicable, conforms to the requirement of this article, including, but not limited to, subdivision (b) of Section 8231.7 and any rules adopted by the Secretary of State pursuant to this article.
(i) “Electronic signature” means an electronic sound, symbol, or process attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the electronic record.
(j) “Express written request” means a request made in writing and initiated by a principal to access, use, share, sell, disclose, produce, provide, release, transfer, disseminate, or otherwise communicate the specified information for a specific purpose. The nature of the access, use, sharing, sale, disclosure, production, provision, release, transfer, dissemination, or other communication shall be conveyed to the principal in clear and prominent terms in such a manner that an ordinary principal would notice and understand it. Express written consent cannot be inferred.
(k) “Identity proofing” means a process or service operating according to the requirements of this article and any rules adopted by the Secretary of State pursuant to this article through which a third party affirms the identity of an individual through review of personal information from public and proprietary data sources.
(l) “Notarial act” means the performance of a duty authorized by Section 8202 or 8205.
(m) “Online notarization” and “online notarial act” mean a notarial act performed by an online notary public by means of an online notarization system that meets the requirements of this article and any rules adopted by the Secretary of State pursuant to this article, where the record that is the subject of the notarial act is an electronic record.
(n) “Online notarization platform” includes the following:
(1) An individual or entity that provides an online notarization system to a principal or an online notary public.
(2) An individual or entity other than the Secretary of State that stores one or more records evidencing online notarial acts.
(o) “Online notarization system” means the computer hardware and software that enable an online notary public to do both of the following:
(1) Perform an online notarial act by means of audio-video communication.
(2) Create an audio-video recording and a corresponding entry for the appropriate electronic journal for each such online notarial act.
(p) “Online notary public” means a notary public who has been registered with the Secretary of State to perform online notarizations pursuant to this article.
(q) “Online notary public’s electronic signature” means an electronic signature that does both of the following:
(1) Meets the requirements of this article and any rules adopted by the Secretary of State pursuant to this article.
(2) Includes an image of the online notary public’s handwritten signature as required to be filed with the Secretary of State under subparagraph (D) of paragraph (3) of subdivision (a) of Section 8231.4.
(r) “Principal” means an individual, other than a credible witness pursuant to Section 1185 of the Civil Code, whose electronic signature is notarized, or whose oath or affirmation is taken by an online notary public, during an online notarization.
(s) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(t) “Remote presentation” means transmission to the online notary public through audio-video communication of an image of a government-issued identification credential that is of sufficient quality to enable the online notary public to identify the individual seeking the online notary public’s services. Remote presentation shall conform to the requirements of this article and any rules adopted by the Secretary of State pursuant to this article.

8231.2.
 This article applies only to online notarizations. To the extent that a provision of this article conflicts with Article 1 (commencing with Section 8200), this article controls with respect to an online notarization.

8231.2.

The

8231.3.
 (a) The Secretary of State may shall adopt rules necessary to implement this article. article by July 1, 2023. The rules shall set and maintain standards for online notarizations and online notaries public, including, but not limited to, all of the following:
(1) Audio-video communication, including ensuring that principals with disabilities are accommodated by online notarization platforms and online notaries public in a manner consistent with applicable laws.
(2) Credential analysis.
(3) Electronic journals, including their form and content.
(4) Electronic seals.
(5) Identity proofing, which shall be performed at least at Identity Assurance Level 2, as established in NIST Special Publication 800-63A, dated June 2017, promulgated by the National Institutes of Standards and Technology, or any successor publication. If this standard cannot be met due to applicable state or federal laws, such as California law governing the disclosure of information regarding driver’s licenses or other identification cards, then the Secretary of State shall adopt the most rigorous standard for identity proofing that also conforms to those laws.
(6) Online notarization systems.
(7) Registration with the Secretary of State as an online notary public and an online notarization platform.
(8) Remote presentation.
(9) Retention and storage of records of online notarial acts. The Secretary of State shall consult with the Judicial Council of California and the Department of Justice regarding the required format for these records.
(10) Security and encryption.
(b) The Secretary of State may confer with other state entities, departments, or agencies on matters relating to equipment, security, and technological aspects of online notarization standards.
(c) The Secretary of State, in developing the rules required by this section, may consider the views of other state entities, departments, or agencies, and members of the public.
(d) An online notarization platform shall not be authorized for use in California and an online notary public shall not provide online notarization for any principal located in California prior to the adoption of rules by the Secretary of State pursuant to this section.

8231.4.
 (a) (1) A notary public, or an applicant during the commissioning of an applicant for appointment as a notary public, may apply for registration with the Secretary of State to be an online notary public in the manner provided by this section.
(2) The Secretary of State may charge an additional fee for an application for registration submitted pursuant to this section in an amount necessary to cover the additional costs of administering this article.
(3) The Secretary of State shall develop an application for registration to be submitted by an applicant. The application shall include, but shall not be limited to, all of the following:
(A) The applicant’s name as it appears on the applicant’s commission or application as a notary public.
(B) A certification that the applicant will comply with this article and any rules adopted by the Secretary of State pursuant to this article.
(C) The applicant’s email address.
(D) The applicant’s handwritten signature.
(b) An applicant for registration as an online notary public shall meet all of the following requirements:
(1) The applicant has a valid commission as a notary public pursuant to Article 1 (commencing with Section 8200), or the applicant has satisfied all of the qualification requirements specified in Article 1 (commencing with Section 8200).
(2) The applicant has paid the fee for an application for registration charged by the Secretary of State.
(3) The applicant has submitted the application for registration to the Secretary of State.
(4) (A) The applicant, in connection with the original application for registration, and each reappointment thereof, has provided proof that the applicant has satisfactorily completed a course of study and an examination approved by the Secretary of State concerning the functions and duties of an online notary public for each online notarization system utilized by the online notary public.
(B) The course of study and examination required by subparagraph (A) shall be in addition to, and not in lieu of, the course of study required by paragraph (3) of subdivision (a) of Section 8201.
(C) An online notarization system registered with the Secretary of State as an online notarization platform shall provide an online notary public education course of study. The Secretary of State shall review any course of study proposed by any online notarization system and shall prescribe by regulation the application form and the certificate of approval form in the same manner as set forth in Section 8201.2. Any approved course of study shall include a required examination that shall be satisfactorily completed by the applicant before registration.
(c) (1) An online notary public shall notify the Secretary of State within 15 calendar days each time that the online notary public does either of the following:
(A) First enters into a contract with an online notarization platform.
(B) Is first authorized by their employer to utilize an online notarization platform with which their employer has entered into a contract.
(2) If an online notary public ceases to use an online notarization platform, neither the online notary public nor the prior online notarization platform is absolved of their respective duties under this article, or the rules adopted by the Secretary of State pursuant to this article, with respect to security, preservation, and production of records generated using the prior online notarization platform, including the electronic journal and the recording required by paragraph (6) of subdivision (b) of Section 8231.6.
(d) The initial term of office of an online notary public shall terminate at such time as that person’s term of office as a notary public terminates. Thereafter, that person shall seek reappointment as an online notary public at the same time that person seeks reappointment as a notary public.

8231.5.
 (a) An online notary public is a notary public for purposes of Article 1 (commencing with Section 8200) and is subject to Article 1 (commencing with Section 8200) to the same extent as a notary public appointed and commissioned under Article 1 (commencing with Section 8200), unless otherwise expressly provided in this article.
(b) An online notary public may perform notarial acts authorized by Article 1 (commencing with Section 8200) in addition to online notarizations authorized by this article.
(c) An online notary public physically located in this state may perform an online notarization that meets the requirements of this article and the rules adopted by the Secretary of State pursuant to this article for a principal who is located in any of the following places:
(1) Within this state.
(2) Outside this state but within the United States, if the act is not prohibited in the jurisdiction in which the principal is physically located at the time of the act.
(3) Outside the United States if the act is not prohibited in the jurisdiction in which the principal is physically located at the time of the act.
(d) (1) A requirement that a principal appear before or in the presence of the online notary public may be satisfied by means of audio-video communication with an online notary public that meets the requirements of this article and the rules adopted by the Secretary of State pursuant to this article.
(2) Audio-video communications with an online notary public meets the requirements of this article if it consists of continuous, synchronous audio and video feeds with adequate clarity such that all participants can be clearly seen and understood at all times. The online notary public shall terminate the session if, in the online notary public’s judgment, the adequacy of communications is insufficient for all participants to be clearly seen and understood at all times.
(3) The online notarization platform shall create the recording required by paragraph (6) of subdivision (b) of Section 8231.6.
(e) A requirement under Section 8205 that a certificate of acknowledgment or proof, or a deposition, affidavit, oath, or affirmation, or certification of a copy, be signed in the notary public’s own handwriting, is satisfied by an electronic signature if the notarial act is performed by online notarization.

8231.6.
 (a) Notwithstanding paragraph (1) of subdivision (a) of Section 8206, an online notary public shall keep one or more secure electronic journals to record each online notarial act performed by the online notary public pursuant to this article.
(b) The online notary public shall include in an electronic journal all of the following:
(1) The date, time, and type of each official act. The time entered shall be the time at the notary’s location at the time of the online notarial act.
(2) The physical location of the principal as represented to the online notary public by the principal at the time of the online notarial act and the physical location of the online notary public at the time of the online notarial act.
(3) The character of every electronic record sworn to, affirmed, acknowledged, or proved before the online notary public.
(4) The electronic signature of each person whose electronic signature is being notarized.
(5) Satisfactory evidence of identity of the principal pursuant to subdivision (a) of Section 8231.8, which shall be in the form of a notation of the type of identification credential provided to the online notary public for credential analysis, a record of the identity proofing, and other information as may be required by the Secretary of State.
(6) The audio-video recording of the online notarial act.
(7) The fee, if any, charged for the online notarization.
(c) The requirements of subparagraph (G) of paragraph (2) of subdivision (a) of Section 8206 do not apply to an online notarial act.
(d) An electronic journal shall be maintained on an encrypted storage device or encrypted online media that is accessed by the online notary public with secure multifactor means of authentication. A backup of the electronic journal shall be made immediately after new information is added to the electronic journal. The online notary public shall not allow another person to access or use an online notary public’s electronic journal. The online notary public shall take all reasonable steps to protect the journal from unauthorized access or use.
(e) An online notary public shall immediately notify the Secretary of State, using a notification process designated by the Secretary of State, and all appropriate law enforcement agencies of the use by another person, loss, compromise, theft, vandalism, corruption, or breach of the online notary public’s electronic journal. The notification to the Secretary of State shall include the period of the affected journal entries, a description of the affected data, a copy of any pertinent police report, and any other information required by the Secretary of State.
(f) (1) An online notary public shall maintain each entry in an electronic journal for so long as the online notary public is registered with the Secretary of State as an online notary public.
(2) An online notary public who resigns, is disqualified, is removed from office, or allows their registration as an online notary public to expire without obtaining reappointment within 30 days shall, pursuant to Section 8209, within 30 days of the applicable event, deliver all of their electronic journals to the Secretary of State.
(3) If the online notary public refuses or willfully fails to deliver their electronic journals pursuant to paragraph (1), the online notary public is guilty of a misdemeanor and shall be personally liable for damages to any person injured by that action or inaction.
(4) In the case of the death of an online notary public, the personal representative of the deceased shall promptly notify the Secretary of State of the death of the online notary public and shall deliver all of their electronic journals to the Secretary of State.
(g) An online notary public shall provide to a member of the public, pursuant to subdivision (c) of Section 8206 and to Section 8206.5, a copy of the entry in the online notary public’s electronic journal corresponding to the requested transaction in tangible format or in an electronic format in accordance with rules adopted by the Secretary of State pursuant to this article.
(h) An online notary public shall provide, and an online notarization platform shall enable, access to the online notary public’s electronic journal:
(1) To a peace officer pursuant to subdivision (d) of Section 8206 or to Section 8228.
(2) Upon receipt of a subpoena duces tecum or a court order pursuant to subdivision (e) of Section 8206.
(3) To the Secretary of State pursuant to Section 8228.
(i) An online notary public may charge a reasonable fee, as determined by a rule adopted by the Secretary of State pursuant to this article, to recover the cost to the notary of providing a copy of an entry in an electronic journal.

8231.7.
 (a) An online notary public shall take reasonable steps to ensure that any registered device used to create an electronic signature or electronic seal is current and has not been revoked or terminated by the device’s issuing or registering authority.
(b) Notwithstanding Section 8207, when an online notary public’s electronic signature is required to be accompanied by an online notary public’s electronic seal, that requirement is satisfied if the electronic seal of the online notary public contains all of the following:
(1) The name of the online notary public.
(2) The Great Seal of the State of California.
(3) The words “Online Notary Public.”
(4) The name of the county where the bond and oath of office of the online notary public are filed.
(5) The date the online notary public’s commission expires.
(6) The sequential identification number assigned to the online notary public pursuant to Section 8207.1.
(7) The sequential identification number assigned to the manufacturer or vendor of the online notary public’s electronic seal.
(c) A manufacturer or vendor of the online notary public’s electronic seal shall apply to the Secretary of State to be assigned an identification number, through an application process prescribed by the Secretary of State. The electronic seal shall meet the requirements of this article and any rules adopted by the Secretary of State pursuant to this article.
(d) (1) An online notary public shall keep the online notary public’s electronic signature and electronic seal in a secure encrypted manner under the direct and exclusive control of the online notary public. For purposes of satisfying the requirements of this subdivision, the online notary public’s electronic signature and electronic seal may be kept on a storage device or online media that is accessed by the online notary public with a secure means of multifactor authentication and protected by, at minimum, security requirements as set forth by the Secretary of State. The online notary public shall not allow another person to access or use the online notary public’s electronic signature or electronic seal. The online notary public shall take all reasonable steps to protect the online notary public’s electronic signature and electronic seal from unauthorized access or use.
(2) An online notary public shall provide the Secretary of State with a copy of the online notary public’s electronic signature and electronic seal.
(e) An online notary public shall attach or logically associate the online notary public’s electronic signature and seal to an electronic online notarial certificate of an electronic record in a manner that is capable of independent verification and makes evident any tampering or subsequent change or modification to the electronic record that has occurred.
(f) An online notary public shall immediately notify the Secretary of State, using a notification process designated by the Secretary of State, and all appropriate law enforcement agencies of the use by another person, loss, compromise, theft, vandalism, corruption, or breach of the online notary public’s electronic signature or electronic seal.

8231.8.
 (a) In performing an online notarization, an online notary public shall verify the identity of a principal by satisfactory evidence that meets the requirements of this subdivision and the rules adopted by the Secretary of State.
(1) For purposes of this subdivision, “satisfactory evidence” means the absence of information, evidence, or other circumstances that would lead a reasonable notary public to believe that the principal is not the individual that the principal claims to be and all of the following:
(A) Remote presentation of a credential by the principal.
(B) Credential analysis of the credential described in subparagraph (A).
(C) Identity proofing of the principal described in subparagraph (A).
(2) For purposes of this subdivision, “satisfactory evidence” does not include the definition of “satisfactory evidence” set forth in Section 1185 of the Civil Code.
(3) Any record of a credential transmitted pursuant to this subdivision shall be retained no longer than necessary to both (A) verify the identity of the principal and (B) make an entry in an electronic journal pursuant to paragraph (5) of subdivision (b) of Section 8231.6.
(b) The online notary public and the online notarization platform shall use industry-standard encryption in all audio-video communication and shall take reasonable steps to ensure that the audio-video communication used in an online notarization is secure from unauthorized interception.
(c) The electronic online notarial certificate shall include a notation that the notarization is an online notarization. An electronic online notarial certificate shall be in the following form:
(1) For an acknowledgment:
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California
County of __________________________
Online Notarial Act
On ________ ______, 20____, before me, __________________________________(here insert name and title of officer), personally appeared _______________________________ by means of audio-video communication, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to within the electronic record and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) and that by his/her/their signature(s) on the electronic record the person(s), or the entity upon behalf of which the person(s) acted, executed the electronic record.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Electronic Seal
Electronic Signature
(2) For a jurat:
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California
County of __________________________
Online Notarial Act
Subscribed and sworn to (or affirmed) before me this ____ day of _____, 20__, by ____________________________________, proved to me on the basis of satisfactory evidence to be the person(s) who appeared before me by means of audio-video communication.
Electronic Seal
Electronic Signature
(d) A notary public may certify that a tangible copy of an electronic record that is the subject of an online notarization is an accurate representation of the electronic record. The certification shall be in the following form and signed by the notary public:
State of California
County of ________________________
Certification of Authenticity
The attached document entitled __________ (document title, if applicable), dated _________ (document date, if applicable), and containing ___ pages is an accurate copy of an electronic record printed by me or under my supervision. At the time of printing, no security features present on the electronic record indicated any changes or errors in an electronic signature or other information in the electronic record after the completion of the electronic record’s creation, execution, or notarization.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
Dated: _______________
WITNESS my hand and official seal.
Signature___________
Seal____________
(e) A county recorder shall accept for recording a tangible copy of an electronic record bearing electronic signatures and containing a certificate of authenticity in the form specified in subdivision (d) as satisfying any requirement under the laws of this state that a document accepted for recording be an original or bear an original signature, if the online notary public executing the certificate certifies that the tangible copy is an accurate copy of the electronic record. For the purposes of this section, “electronic record” and “electronic signature” have the same meaning as in Section 1633.2 of the Civil Code.
(f) The certificate for a copy certification of a power of attorney performed by means of online notarization shall include the representations required under subdivision (c) of Section 4307 of the Probate Code.

8231.9.
 The Secretary of State shall establish by rule the maximum fee that may be charged by an online notary public and by an online notary platform for an online notarial act.

8231.10.
 Every person appointed an online notary public shall execute an official bond in the sum of fifteen thousand dollars ($15,000) in addition to the bond required by Section 8212. The bond shall be in the form of a bond executed by an admitted surety insurer and not a deposit in lieu of bond.

8231.11.
 An online notary public who resigns, is disqualified or removed from office, or allows the online notary public’s registration as an online notary public to expire without obtaining a reappointment, within 30 days, pursuant to Section 8209, shall destroy the coding, disk, certificate, card, software, or password that enables electronic affixation of the online notary public’s official electronic signature or seal. The online notary public shall certify compliance with this subdivision to the Secretary of State in the manner prescribed by rule by the Secretary of State.

8231.12.
 (a) The Secretary of State may approve registrations of online notaries public for the military and naval reservations of the Army, Navy, Coast Guard, Air Force, and Marine Corps of the United States that are located in the State of California. Such registrants shall meet the requirements of Article 1 (commencing with Section 8200) in addition to the requirements of this article.
(b) Notwithstanding Section 8203.2, an online notary public approved for registration under subdivision (a) may perform notarial acts for principals who are stationed at the reservation for which that online notary public was approved, regardless of whether the principal was physically located on the reservation at the time of the notarial act.
(c) Notwithstanding Section 8203.5, the electronic online notarial certificate by an online notary public shall contain the name of the reservation for which the online notary public was approved and where the principal for which the online notarization was performed was stationed at the time of the online notarial act. A notation in the following form shall be sufficient for purposes of this subdivision:
State of California Online Notarial Act
Military Reservation of ________

8231.13.
 A person who, without authorization, knowingly obtains, conceals, damages, or destroys the certificate, disk, coding, card, program, software, or hardware enabling an online notary public to affix an official electronic signature or electronic seal is guilty of a misdemeanor.

8231.14.
 (a) A person or entity shall apply for registration with the Secretary of State to be an online notarization platform.
(b) Any entity required to obtain a certificate of qualification from the Secretary of State in order to transact business in California shall do so before applying for registration with the Secretary of State to be an online notarization platform.
(c) The Secretary of State shall develop an application for registration to be submitted by an applicant. The application shall include, but not be limited to, both of the following:
(1) The name and complete business or residence street address of an agent upon whom process may be served within this state if this information is not already on file with the Secretary of State.
(2) A statement signed under penalty of perjury by an officer of the applicant authorized to enter into binding agreements on behalf of the applicant that:
(A) The applicant shall comply with any provisions of this article and any rules adopted by the Secretary of State pursuant to this article that apply to online notarization platforms.
(B) The applicant shall comply with the lawful properly-served process.
(d) The Secretary of State may charge a fee for an application for registration submitted pursuant to this section in an amount necessary to administer this article.
(e) The Secretary of State shall adopt procedures to verify that an online notarization platform is capable of complying with this article and any rules adopted by the Secretary of State pursuant to this article. If the Secretary of State determines that an online notarization platform is not capable of complying with this article or any rule adopted by the Secretary of State pursuant to this article, the Secretary of State shall deny or terminate the registration.
(f) Only an online notarization platform registered with the Secretary of State may provide an online notarization system for an online notary public that performs online notarizations for principals located in California.
(g) An online notarization platform shall take all reasonable steps to ensure that an online notary public for whom it provides an online notarization system has the knowledge to use the system to perform online notarial acts in compliance with this article and any rules adopted by the Secretary of State pursuant to this article.
(h) An online notarization platform that ceases to provide an online notarization system for use within California, goes out of business, ceases operations, or is acquired by or merges with another entity that is not registered with the Secretary of State as an online notarization platform shall do both of the following:
(1) At least 30 calendar days before this event, notify each online notary public that has utilized the online notarization platform of the event and enable the online notary public to transfer all records of online notarizations performed by the online notary public, including, but not limited to, any electronic journals, to another online notarization platform or to the Secretary of State at no cost to the online notary public.
(2) Upon full compliance with paragraph (1), thereafter promptly delete all records of online notarizations, including any electronic journals.
(i) An online notary public who exercises reasonable care using an online notarization platform shall not be liable for any damages resulting from the platform’s failure to comply with the requirements of this article or any rules adopted by the Secretary of State pursuant to this article. Any provision in a contract or agreement between an online notary public and an online notarization platform that attempts to waive this immunity shall be null and void.

8231.15.
 (a) An online notarization platform shall not have access to an online notary public’s electronic signature or electronic seal.
(b) An online notarization platform shall not access, use, share, sell, disclose, produce, provide, release, transfer, disseminate, or otherwise communicate the contents of the online notary public’s electronic journal absent a court order.
(c) An online notarization platform shall not access, use, share, sell, disclose, produce, provide, release, transfer, disseminate, or otherwise communicate the contents of a document notarized by an online notary public absent express written request from the principal or a court order.
(d) An online notarization platform shall not access, use, share, sell, disclose, produce, provide, release, transfer, disseminate, or otherwise communicate the contents of a record of an online notarial act absent express written request from the principal or a court order.
(e) An online notarization platform shall not access, use, share, sell, disclose, produce, provide, release, transfer, disseminate, or otherwise communicate the personal information of a principal absent express written request from the principal or a court order.
(f) Notwithstanding subdivisions (b), (c), and (d), an online notarization platform may access, use, share, disclose, produce, provide, release, transfer, disseminate, or otherwise communicate the contents of a document or record of an online notarial act to the extent necessary to do either of the following:
(1) Facilitate the transaction of which the document notarized by an online notary public or the record of an online notarial act is a part.
(2) Comply with the requirements of Article 1 (commencing with Section 8200), this article, or rules adopted by the Secretary of State pursuant to this article.
(g) An online notarization platform shall immediately notify the Secretary of State, using a notification process designated by the Secretary of State, all appropriate law enforcement agencies, any affected online notaries public, and any affected principals, of the use by another person, loss, compromise, theft, vandalism, corruption, or breach of any of the following:
(1) An online notary public’s electronic signature or electronic seal.
(2) An online notary public’s electronic journal.
(3) Any records evidencing online notarial acts.

8231.16.
 (a) The Secretary of State shall maintain a secure, indexed repository of records of online notarizations, including electronic journal entries and the recordings required by subdivision (b) of Section 8231.6. The repository shall not be connected to the public internet.
(b) The Secretary of State shall establish a protocol for an online notarization platform to transfer records of online notarizations to the Secretary of State at least once each calendar quarter.
(c) The Secretary of State shall produce a record of an online notarization only in response to a court order. That court order, in turn, shall be issued by a court only upon a showing that an accurate copy cannot be obtained from the online notarization platform that enabled the record to be made. The failure of an online notarization platform to produce a record shall be considered by the Secretary of State in deciding whether to maintain the registration of that platform.
(d) The Secretary of State may charge a reasonable fee, as determined by a rule adopted by the Secretary of State pursuant to this article, to recover the cost of providing a copy of a record to a requesting party.
(e) Records of online notarizations maintained by the Secretary of State pursuant to this section shall be exempt from the requirements of the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1).
(f) After 10 years from the date of deposit with the Secretary of State of an electronic journal pursuant to subdivision (f) of Section 8231.6, if no request for a record of an online notarization contained or referenced in that journal has been made, the Secretary of State may destroy the record.

8231.17.
 (a) The Secretary of State may refuse to appoint any person as an online notary public or may revoke or suspend the commission of any online notary public for a violation of this article.
(b) The Secretary of State may refuse to register any online notarization platform or may revoke or suspend the registration of any online notarization platform for a violation of this article.

8231.18.
 (a) A person may bring a cause of action against an online notarization platform for a violation of any provision of this article in order to recover or obtain any of the following:
(1) The greater of the following:
(A) Any actual damages sustained by that person as a result of the violation.
(B) Statutory damages of two hundred fifty dollars ($250) per violation.
(2) Injunctive or declaratory relief. Such relief is presumed to accrue to the benefit of the public.
(3) Any other relief that the court deems proper.
(b) In the case of any successful cause of action under this section, the court shall awards costs of the action, together with reasonable attorney’s fees, as determined by the court.

8231.19.
 Any waiver of the provisions of this article is contrary to public policy and is void and unenforceable.

8231.20.
 The provisions of this article are severable. If any provision of this article or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

SEC. 8.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.

SEC. 9.

 The Legislature finds and declares that Section 7 of this act, which adds Section 8231.16 to the Government Code, imposes a limitation on the public’s right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
The interest protected by this limitation is the privacy of Californians, whose highly sensitive personal information is held by the Secretary of State, and records of online notarizations will contain highly sensitive personal information, including, but not limited to, medical and financial information. This act protects this interest by excluding records of online notarizations maintained by the Secretary of State from the provisions of the California Public Records Act.