Florida Senate - 2021                CS for CS for CS for SB 228
       
       
        
       By the Committees on Rules; Judiciary; and Commerce and Tourism;
       and Senators Bradley and Burgess
       
       
       
       
       595-03388-21                                           2021228c3
    1                        A bill to be entitled                      
    2         An act relating to notaries public; amending s.
    3         117.021, F.S.; clarifying that a notary public is
    4         entitled to select particular technology in performing
    5         a notarial act with respect to an electronic record;
    6         authorizing a notary public’s contract or employer to
    7         require the use of a particular technology in
    8         performing a notarial act with respect to an
    9         electronic record; amending s. 117.05, F.S.; revising
   10         limitations on notary public fees; amending s.
   11         117.201, F.S.; revising definitions; amending s.
   12         117.225, F.S.; revising certain registration
   13         requirements for online notaries public; creating s.
   14         117.231, F.S.; authorizing notaries public to remotely
   15         swear in witnesses using audio-video communication
   16         technology; authorizing notaries public to remotely
   17         swear in new attorneys admitted to The Florida Bar
   18         using audio-video communication technology; amending
   19         s. 117.245, F.S.; modifying requirements for entries
   20         in the electronic journal maintained by an online
   21         notary public; requiring a remote online notarization
   22         service provider, rather than an online notary public,
   23         to retain audio-video communication recordings of
   24         online notarizations; authorizing a RON service
   25         provider to delegate this duty to a secure repository
   26         under certain conditions; conforming provisions to
   27         changes made by the act; amending s. 117.255, F.S.;
   28         revising provisions governing access to audio-video
   29         communication recordings to conform to changes made by
   30         the act; authorizing a remote online notarization
   31         service provider to charge a fee for access to such
   32         recordings, subject to specified limitations; amending
   33         s. 117.265, F.S.; clarifying that an online notary
   34         public is entitled to select his or her remote online
   35         notarization service provider; authorizing a notary
   36         public’s contract or employer to require the use of a
   37         particular remote online notarization service provider
   38         in performing online notarizations; requiring an
   39         online notary public to notify the Department of State
   40         of the effective date of a change in the remote online
   41         notarization service provider used; amending s.
   42         117.275, F.S.; clarifying limitations on fees charged
   43         for online notarizations; amending s. 117.295, F.S.;
   44         requiring the department to publish on its website a
   45         list containing certain information on online notaries
   46         public; requiring a remote online notarization service
   47         provider to file a self-certification with the
   48         department; specifying the duration of a self
   49         certification; requiring the department to publish on
   50         its website a list containing certain information on
   51         self-certified remote online notarization service
   52         providers; prohibiting a remote online notarization
   53         service provider from using, selling, or offering to
   54         sell or transfer personal information obtained in the
   55         course of performing online notarizations; providing
   56         exceptions; providing an effective date.
   57          
   58  Be It Enacted by the Legislature of the State of Florida:
   59  
   60         Section 1. Subsection (4) of section 117.021, Florida
   61  Statutes, is amended to read:
   62         117.021 Electronic notarization.—
   63         (4) A notary public performing a notarial act with respect
   64  to an electronic record shall select the technology to be used
   65  for such notarial act. A person may not require the a notary
   66  public to use a particular perform a notarial act with respect
   67  to an electronic record with a form of technology; however, if
   68  the notary public is required by his or her contract or employer
   69  to perform notarial acts with respect to electronic records, the
   70  contract or employer may require the use of a particular
   71  technology for those notarial acts that the notary public has
   72  not selected to use.
   73         Section 2. Paragraph (a) of subsection (2) of section
   74  117.05, Florida Statutes, is amended to read:
   75         117.05 Use of notary commission; unlawful use; notary fee;
   76  seal; duties; employer liability; name change; advertising;
   77  photocopies; penalties.—
   78         (2)(a) The fee of a notary public may not exceed $10 for
   79  any one notarial act under this part, except as provided in s.
   80  117.045 or s. 117.275.
   81         Section 3. Subsections (6) and (14) of section 117.201,
   82  Florida Statutes, are amended to read:
   83         117.201 Definitions.—As used in this part, the term:
   84         (6) “Government-issued identification credential” means any
   85  approved credential for verifying identity under s.
   86  117.05(5)(b)2. However, for an online notarization of a
   87  principal not located within the United States, a passport
   88  issued by a foreign government not including the stamp of the
   89  United States Bureau of Citizenship and Immigration Services may
   90  be used as a government-issued identification credential to
   91  verify the principal’s identity.
   92         (14) “Remote Online Notarization service provider” or “RON
   93  service provider” means a person that provides audio-video
   94  communication technology and related processes, services,
   95  software, data storage, or other services to online notaries
   96  public for the purpose of directly facilitating their
   97  performance of online notarizations, in compliance with the
   98  requirements of this chapter and any rules adopted by the
   99  Department of State pursuant to s. 117.295.
  100         Section 4. Subsections (1) and (5) of section 117.225,
  101  Florida Statutes, are amended to read:
  102         117.225 Registration; qualifications.—A notary public, a
  103  civil-law notary appointed under chapter 118, or a commissioner
  104  of deeds appointed under part IV of chapter 721 may complete
  105  registration as an online notary public with the Department of
  106  State by:
  107         (1) Holding a current commission as a notary public under
  108  part I of this chapter, an appointment as a civil-law notary
  109  under chapter 118, or an appointment as a commissioner of deeds
  110  under part IV of chapter 721, and submitting his or her
  111  commission or a copy of such commission or proof of such
  112  appointment number with his or her registration.
  113         (5) Identifying the RON service provider or providers whose
  114  audio-video communication technology and processes for
  115  credential analysis and identity-proofing technologies the
  116  registrant intends to use for online notarizations, and
  117  confirming that such technology and processes satisfy the
  118  requirements of this chapter and any rules adopted by the
  119  Department of State pursuant to s. 117.295.
  120         Section 5. Section 117.231, Florida Statutes, is created to
  121  read:
  122         117.231 Remote administration of certain oaths.—
  123         (1) When taking the oath of an individual who is testifying
  124  at any court proceeding, deposition, arbitration, or public
  125  hearing and who is outside of the physical presence of the
  126  notary public, the notary public may fulfill the requirements of
  127  s. 117.05 using audio-video communication technology.
  128         (2) When taking an oath of admission to The Florida Bar
  129  from an individual who is outside of the physical presence of
  130  the notary public, the notary public may fulfill the
  131  requirements of s. 117.05 using audio-video communication
  132  technology.
  133         (3) If an individual is located outside of this state at
  134  the time the notary public is to take the individual’s oath
  135  under this section, consent from the individual must be obtained
  136  to take his or her oath using audio-video communication
  137  technology pursuant to this section.
  138         (4)When taking an oath under this section, the notary
  139  public is not required to be an online notary public or to use a
  140  RON service provider.
  141         Section 6. Subsections (1), (2), (4), and (5) of section
  142  117.245, Florida Statutes, are amended to read:
  143         117.245 Electronic journal of online notarizations.—
  144         (1) An online notary public shall keep one or more secure
  145  electronic journals of online notarizations performed by the
  146  online notary public. For each online notarization, the
  147  electronic journal entry must contain all of the following:
  148         (a) The date and time of the notarization.
  149         (b) The type of notarial act performed, whether an oath or
  150  acknowledgment.
  151         (c) The type, the title, or a description of the electronic
  152  record or proceeding.
  153         (d) The name and address of each principal involved in the
  154  transaction or proceeding.
  155         (e) Evidence of identity of each principal involved in the
  156  transaction or proceeding in either any of the following forms:
  157         1. A statement that the person is personally known to the
  158  online notary public; or.
  159         2.a. A notation of the type of government-issued
  160  identification credential provided to the online notary public;
  161         b. An indication that the government-issued identification
  162  credential satisfied the credential analysis; and.
  163         c.(f) An indication that the principal satisfactorily
  164  passed the identity proofing.
  165         (g) An indication that the government-issued identification
  166  credential satisfied the credential analysis.
  167         (f)(h) The fee, if any, charged for the notarization.
  168         (2) The RON service provider online notary public shall
  169  retain an uninterrupted and unedited copy of the recording of
  170  the audio-video communication in which an online notarization is
  171  performed. The online notary public shall ensure that the
  172  recording includes must include all of the following:
  173         (a) Appearance by the principal and any witness before the
  174  online notary public.
  175         (b) Confirmation of the identity of the principal and any
  176  witness.
  177         (c) A general description or identification of the records
  178  to be signed.
  179         (d) At the commencement of the recording, recitation by the
  180  online notary public of information sufficient to identify the
  181  notarial act.
  182         (e) A declaration by the principal that his or her
  183  signature on the record is knowingly and voluntarily made.
  184         (f) All of the actions and spoken words of the principal,
  185  notary public, and any required witness during the entire online
  186  notarization, including the signing of any records before the
  187  online notary public.
  188         (4) The electronic journal required under subsection (1)
  189  and the recordings of audio-video communications required under
  190  subsection (2) shall be maintained for at least 10 years after
  191  the date of the notarial act. However, a full copy of the
  192  recording of the audio-video communication required under
  193  subsection (2) relating to an online notarization session that
  194  involves the signing of an electronic will must be maintained by
  195  a qualified custodian in accordance with chapters 731 and 732.
  196  The Department of State maintains jurisdiction over the
  197  electronic journal and audio-video communication recordings to
  198  investigate notarial misconduct for a period of 10 years after
  199  the date of the notarial act. The online notary public, a
  200  guardian of an incapacitated online notary public, or the
  201  personal representative of a deceased online notary public may,
  202  by contract with a secure repository in accordance with any
  203  rules established under this chapter, delegate to the repository
  204  the online notary public’s duty to retain the electronic journal
  205  and the required recordings of audio-video communications,
  206  provided that the Department of State is notified of such
  207  delegation of retention duties to the repository within 30 days
  208  thereafter, including the effective date of the delegation and
  209  the address and contact information for the repository. If an
  210  online notary public delegates to a secure repository under this
  211  section, the online notary public shall make an entry in his or
  212  her electronic journal identifying such repository, and provide
  213  notice to the Department of State as required in this
  214  subsection. A RON service provider may, by contract with a
  215  secure repository in accordance with any rules established under
  216  this chapter, delegate to the repository the RON service
  217  provider’s duty to retain the required recordings of audio-video
  218  communications, provided that the Department of State is
  219  notified of such delegation of retention duties to the
  220  repository within 30 days thereafter, including the effective
  221  date of the delegation and the address and contact information
  222  for the repository. During any delegation under this subsection,
  223  the secure repository shall fulfill the responsibilities of the
  224  online notary public or RON service provider to provide copies
  225  or access under s. 117.255(2) and (3).
  226         (5) An omitted or incomplete entry in the electronic
  227  journal does not impair the validity of the notarial act or of
  228  the electronic record which was notarized, but may be introduced
  229  as evidence to establish violations of this chapter; as evidence
  230  of possible fraud, forgery, impersonation, duress, incapacity,
  231  undue influence, minority, illegality, or unconscionability; or
  232  for other evidentiary purposes. However, if the recording of the
  233  audio-video communication required under subsection (2) relating
  234  to the online notarization of the execution of an electronic
  235  will cannot be produced by the RON service provider, the online
  236  notary public, or the qualified custodian, the electronic will
  237  shall be treated as a lost or destroyed will subject to s.
  238  733.207.
  239         Section 7. Section 117.255, Florida Statutes, is amended to
  240  read:
  241         117.255 Use of electronic journal, signature, and seal.—
  242         (1) An online notary public shall:
  243         (a)(1) Take reasonable steps to ensure that any registered
  244  device used to create an electronic seal is current and has not
  245  been revoked or terminated by the issuing or registering
  246  authority of the device.
  247         (b)(2) Keep the electronic journal and electronic seal
  248  secure and under his or her sole control, which includes access
  249  protection using passwords or codes under control of the online
  250  notary public. The online notary public may not allow another
  251  person to use the online notary public’s electronic journal,
  252  electronic signature, or electronic seal, other than a RON
  253  service provider or other authorized person providing services
  254  to an online notary public to facilitate performance of online
  255  notarizations.
  256         (c)(3) Attach or logically associate the electronic
  257  signature and seal to the electronic notarial certificate of an
  258  electronic record in a manner that is capable of independent
  259  verification using tamper-evident technology that renders any
  260  subsequent change or modification to the electronic record
  261  evident.
  262         (d)(4) Notify an appropriate law enforcement agency and the
  263  Department of State of any unauthorized use of or compromise to
  264  the security of the electronic journal, official electronic
  265  signature, or electronic seal within 7 days after discovery of
  266  such unauthorized use or compromise to security.
  267         (2)(5)An online notary public shall provide Make
  268  electronic copies, upon request, of the pertinent entries in the
  269  electronic journal, and a RON service provider shall provide
  270  access to the related audio-video communication recordings, or a
  271  copy thereof, to the following persons upon request:
  272         (a) The parties to an electronic record notarized by the
  273  online notary public;
  274         (b) The qualified custodian of an electronic will notarized
  275  by the online notary public;
  276         (c) The title agent, settlement agent, or title insurer who
  277  insured the electronic record or engaged the online notary
  278  public with regard to a real estate transaction;
  279         (d) The online notary public’s RON service provider whose
  280  services were used by the online notary public to notarize the
  281  electronic record;
  282         (e) Any person who is asked to accept a power of attorney
  283  that was notarized by the online notary public;
  284         (e)(f) The Department of State pursuant to a notary
  285  misconduct investigation; and
  286         (f)(g) Any other persons pursuant to a subpoena, court
  287  order, law enforcement investigation, or other lawful inspection
  288  demand;
  289         (g) With respect to audio-video communication recordings of
  290  an online notarization, the online notary public performing that
  291  notarization; and
  292         (h) With respect to electronic copies of pertinent entries
  293  in the electronic journal, the RON service provider used for the
  294  online notarizations associated with those entries.
  295         (3)(6) The online notary public may charge a fee not to
  296  exceed $20 per transaction record for making and delivering
  297  electronic copies of a given series of related electronic
  298  records, and a RON service provider may charge a fee not to
  299  exceed $20 for providing access to, or a copy of, the related
  300  audio-video communication records, except such copies or access
  301  must be provided without charge if requested by any of the
  302  following within the 10-year period specified in s. 117.245(4):
  303         (a) A party to the electronic record;
  304         (b) In a real estate transaction, the title agent,
  305  settlement agent, or title insurer who insured the electronic
  306  record or engaged the online notary public with regard to such
  307  transaction; or
  308         (c) The Department of State pursuant to an investigation
  309  relating to the official misconduct of an online notary public;
  310         (d) The qualified custodian of an electronic will notarized
  311  by the online notary public;
  312         (e) With respect to audio-video communication recordings of
  313  an online notarization, the online notary public performing that
  314  notarization; or
  315         (f) With respect to electronic copies of a given series of
  316  related electronic records, the RON service provider used for
  317  the online notarization of those records.
  318  
  319  If the online notary public or RON service provider charges does
  320  charge a fee, the online notary public or RON service provider
  321  must shall disclose the amount of such fee to the requester
  322  before making the electronic copies or providing access to, or
  323  making a copy of, the requested audio-video communication
  324  recordings.
  325         Section 8. Subsection (5) of section 117.265, Florida
  326  Statutes, is amended to read:
  327         117.265 Online notarization procedures.—
  328         (5)(a) An online notary public shall select the RON service
  329  provider to be used to perform an online notarization, and a
  330  person may not require the online notary public to use a
  331  particular RON service provider; however, if the online notary
  332  public is required by his or her contract or employer to perform
  333  online notarizations, the contract or employer may require the
  334  use of a particular RON service provider for those online
  335  notarizations.
  336         (b) An online notary public may change his or her RON
  337  service provider or providers from time to time, but shall
  338  notify the Department of State of such change, and its effective
  339  date, within 30 days thereafter.
  340         Section 9. Section 117.275, Florida Statutes, is amended to
  341  read:
  342         117.275 Fees for online notarization.—An online notary
  343  public or the employer of such online notary public may charge a
  344  fee, not to exceed $25, for performing an online notarial act
  345  notarization under this part. Fees for services other than
  346  notarial acts, including the services of a RON service provider,
  347  are not governed by this section. A RON service provider’s
  348  services are also not considered closing services, as defined in
  349  s. 627.7711, and a fee for those services may be separately
  350  charged.
  351         Section 10. Subsections (2) and (4) of section 117.295,
  352  Florida Statutes, are amended, and subsection (8) is added to
  353  that section, to read:
  354         117.295 Standards for electronic and online notarization;
  355  rulemaking authority.—
  356         (2) By January 1, 2020, The Department of State shall:
  357         (a) Adopt forms, processes, and interim or emergency rules
  358  necessary to accept applications from and register online
  359  notaries public pursuant to s. 117.225.
  360         (b) Publish on its website a list containing each online
  361  notary public, the online notary public’s RON service providers
  362  from January 1, 2022, and thereafter, the effective dates during
  363  which the online notary public used each RON service provider,
  364  as identified pursuant to ss. 117.225(5) and 117.265(5)(b), any
  365  secure repositories to which the online notary public may have
  366  delegated his or her duties pursuant to s. 117.245(4) from
  367  January 1, 2022, and thereafter, and the effective dates of that
  368  delegation.
  369         (4)(a)A RON service provider must file a self
  370  certification with the Department of State, on a form adopted by
  371  department rule, confirming that its audio-video communication
  372  technology and related processes, services, software, data
  373  storage, or other services provided to online notaries public
  374  for the purpose of directly facilitating their performance of
  375  online notarizations satisfy the requirements of this chapter
  376  and any rules adopted by the Department of State pursuant to
  377  this section. Each certification shall remain active for a
  378  period of 1 year from the date of filing. The Department of
  379  State must publish on its website a list of each RON service
  380  provider that has filed a self-certification, the date of filing
  381  of the self-certification, any secure repositories to which the
  382  RON service provider may have delegated its duties pursuant to
  383  s. 117.245(4) from January 1, 2022, and thereafter, and the
  384  effective dates of that delegation.
  385         (b) A RON service provider is deemed to have satisfied
  386  tamper-evident technology requirements by use of technology that
  387  renders any subsequent change or modification to the electronic
  388  record evident.
  389         (8)A RON service provider may not use, sell, or offer to
  390  sell or transfer to another person for use or sale any personal
  391  information obtained under this part which identifies a
  392  principal, a witness, or a person named in a record presented
  393  for online notarization, except:
  394         (a)As necessary to facilitate performance of a notarial
  395  act;
  396         (b)To administer or process a record provided by or on
  397  behalf of a principal or the transaction of which the record is
  398  a part;
  399         (c)To detect fraud, identity theft, or other criminal
  400  activities;
  401         (d)In accordance with this part and the rules adopted
  402  pursuant to this part or any other applicable federal, state, or
  403  local law, or to comply with a lawful subpoena or court order or
  404  a lawful request from a law enforcement or regulatory agency;
  405         (e)To monitor and improve the audio-video communication
  406  technology and related processes, services, software, data
  407  storage, or other services offered by the RON service provider
  408  to online notaries public for the purpose of directly
  409  facilitating their performance of online notarizations.
  410         (f)In connection with a proposed or actual sale, merger,
  411  transfer, or exchange of all or a portion of a business or
  412  operating unit of a RON service provider, or the dissolution,
  413  insolvency, or cessation of operations of a business or
  414  operating unit, if limited to such personal information held by
  415  that business or unit and any transferee agrees to comply with
  416  the restrictions set forth in this subsection.
  417         Section 11. This act shall take effect January 1, 2022.