1     
ELECTRONIC NOTARIZATION AMENDMENTS

2     
2024 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Calvin R. Musselman

5     
Senate Sponsor: Daniel McCay

6     

7     LONG TITLE
8     Committee Note:
9          The Government Operations Interim Committee recommended this bill.
10               Legislative Vote:     12 voting for     0 voting against     4 absent
11     General Description:
12          This bill modifies provisions related to electronic notarizations.
13     Highlighted Provisions:
14          This bill:
15          ▸     provides for the electronic notarization of documents allowed to be recorded
16     electronically in a county recorder's office;
17          ▸     modifies definitions applicable to those electronic notarizations; and
18          ▸     modifies a provision authorizing the Office of the Lieutenant Governor to adopt
19     rules to address electronic notarizations.
20     Money Appropriated in this Bill:
21          None
22     Other Special Clauses:
23          None
24     Utah Code Sections Affected:
25     AMENDS:
26          46-1-2, as last amended by Laws of Utah 2022, Chapter 158
27          46-1-3.6, as enacted by Laws of Utah 2019, Chapter 192
28          46-1-3.7, as enacted by Laws of Utah 2019, Chapter 192
29          46-1-14, as last amended by Laws of Utah 2019, Chapter 192
30          46-1-17, as last amended by Laws of Utah 2019, Chapter 192
31     

32     Be it enacted by the Legislature of the state of Utah:
33          Section 1. Section 46-1-2 is amended to read:
34          46-1-2. Definitions.
35          As used in this chapter:
36          (1) "Acknowledgment" means a notarial act in which a notary certifies that a signer,
37     whose identity is personally known to the notary or proven on the basis of satisfactory
38     evidence, has admitted, in the presence of the notary, to voluntarily signing a document for the
39     document's stated purpose.
40          (2) "Before me" means that an individual appears in the presence of the notary.
41          (3) "Commission" means:
42          (a) to empower to perform notarial acts; or
43          (b) the written document that gives authority to perform notarial acts, including the
44     Certificate of Authority of Notary Public that the lieutenant governor issues to a notary.
45          (4) "Copy certification" means a notarial act in which a notary certifies that a
46     photocopy is an accurate copy of a document that is neither a public record nor publicly
47     recorded.
48          (5) "Electronic notarization" means:
49          (a) a remote notarization; or
50          (b) a notarization:
51          (i) in an electronic format;
52          (ii) of a document that may be recorded electronically under Subsection 17-21-18.5(5);
53     and
54          (iii) that conforms with rules made under Section 46-1-3.7.
55          [(5)] (6) "Electronic recording" means the audio and video recording, described in
56     Subsection 46-1-3.6(3), of a remote notarization.
57          [(6)] (7) "Electronic seal" means an electronic version of the seal described in Section
58     46-1-16, that conforms with rules made under Subsection 46-1-3.7(1)(d), that a [remote] notary
59     may attach to a notarial certificate to complete [a remote] an electronic notarization.
60          [(7)] (8) "Electronic signature" means the same as that term is defined in Section
61     46-4-102.
62          [(8)] (9) "In the presence of the notary" means that an individual:
63          (a) is physically present with the notary in close enough proximity to see and hear the
64     notary; or
65          (b) communicates with a remote notary by means of an electronic device or process
66     that:
67          (i) allows the individual and remote notary to communicate with one another
68     simultaneously by sight and sound; and
69          (ii) complies with rules made under Section 46-1-3.7.
70          [(9)] (10) "Jurat" means a notarial act in which a notary certifies:
71          (a) the identity of a signer who:
72          (i) is personally known to the notary; or
73          (ii) provides the notary satisfactory evidence of the signer's identity;
74          (b) that the signer affirms or swears an oath attesting to the truthfulness of a document;
75     and
76          (c) that the signer voluntarily signs the document in the presence of the notary.
77          [(10)] (11) "Notarial act" or "notarization" means an act that a notary is authorized to
78     perform under Section 46-1-6.
79          [(11)] (12) "Notarial certificate" means the affidavit described in Section 46-1-6.5 that
80     is:
81          (a) a part of or attached to a notarized document; and
82          (b) completed by the notary and bears the notary's signature and official seal.
83          [(12)] (13) (a) "Notary" means an individual commissioned to perform notarial acts
84     under this chapter.
85          (b) "Notary" includes a remote notary.
86          [(13)] (14) "Oath" or "affirmation" means a notarial act in which a notary certifies that
87     a person made a vow or affirmation in the presence of the notary on penalty of perjury.
88          [(14)] (15) "Official misconduct" means a notary's performance of any act prohibited or
89     failure to perform any act mandated by this chapter or by any other law in connection with a
90     notarial act.
91          [(15)] (16) (a) "Official seal" means the seal described in Section 46-1-16 that a notary
92     may attach to a notarial certificate to complete a notarization.
93          (b) "Official seal" includes an electronic seal.
94          [(16)] (17) "Personally known" means familiarity with an individual resulting from
95     interactions with that individual over a period of time sufficient to eliminate every reasonable
96     doubt that the individual has the identity claimed.
97          [(17)] (18) "Remote notarization" means a notarial act performed by a remote notary in
98     accordance with this chapter for an individual who is not in the physical presence of the remote
99     notary at the time the remote notary performs the notarial act.
100          [(18)] (19) "Remote notary" means a notary that holds an active remote notary
101     certification under Section 46-1-3.5.
102          [(19)] (20) (a) "Satisfactory evidence of identity" means:
103          (i) for both an in-person and remote notarization, identification of an individual based
104     on:
105          (A) subject to Subsection [(19)(b)] (20)(b), valid personal identification with the
106     individual's photograph, signature, and physical description that the United States government,
107     any state within the United States, or a foreign government issues;
108          (B) subject to Subsection [(19)(b)] (20)(b), a valid passport that any nation issues; or
109          (C) the oath or affirmation of a credible person who is personally known to the notary
110     and who personally knows the individual; and
111          (ii) for a remote notarization only, a third party's affirmation of an individual's identity
112     in accordance with rules made under Section 46-1-3.7 by means of:
113          (A) dynamic knowledge-based authentication, which may include requiring the
114     individual to answer questions about the individual's personal information obtained from
115     public or proprietary data sources; or
116          (B) analysis of the individual's biometric data, which may include facial recognition,
117     voiceprint analysis, or fingerprint analysis.
118          (b) "Satisfactory evidence of identity," for a remote notarization, requires the
119     identification described in Subsection [(19)(a)(i)(A)] (20)(a)(i)(A) or passport described in
120     Subsection [(19)(a)(i)(B)] (20)(a)(i)(B) to be verified through public or proprietary data sources
121     in accordance with rules made under Section 46-1-3.7.
122          (c) "Satisfactory evidence of identity" does not include:
123          (i) a driving privilege card under Subsection 53-3-207(12); or
124          (ii) another document that is not considered valid for identification.
125          [(20)] (21) "Signature witnessing" means a notarial act in which an individual:
126          (a) appears in the presence of the notary and presents a document;
127          (b) provides the notary satisfactory evidence of the individual's identity, or is
128     personally known to the notary; and
129          (c) signs the document in the presence of the notary.
130          Section 2. Section 46-1-3.6 is amended to read:
131          46-1-3.6. Remote notarization procedures.
132          (1) A remote notary who receives a remote notary certification under Section 46-1-3.5
133     may perform a remote notarization if the remote notary is physically located in this state.
134          (2) A remote notary that performs a remote notarization for an individual that is not
135     personally known to the remote notary shall, at the time the remote notary performs the remote
136     notarization, establish satisfactory evidence of identity for the individual by:
137          (a) communicating with the individual using an electronic device or process that:
138          (i) allows the individual and remote notary to communicate with one another
139     simultaneously by sight and sound; and
140          (ii) complies with rules made under Section 46-1-3.7; and
141          (b) requiring the individual to transmit to the remote notary an image of a form of
142     identification described in Subsection [46-1-2(19)(a)(i)(A)] 46-1-2(20)(a)(i)(A) or passport
143     described in Subsection [46-1-2(19)(a)(i)(B)] 46-1-2(20)(a)(i)(B) that is of sufficient quality for
144     the remote notary to establish satisfactory evidence of identity.
145          (3) (a) A remote notary shall create an audio and video recording of the performance of
146     each remote notarization and store the recording in accordance with Sections 46-1-14 and
147     46-1-15.
148          (b) A remote notary shall take reasonable steps, consistent with industry standards, to
149     ensure that any non-public data transmitted or stored in connection with a remote notarization
150     performed by the remote notary is secure from unauthorized interception or disclosure.
151          (4) Notwithstanding any other provision of law, a remote notarization lawfully
152     performed under this chapter satisfies any provision of state law that requires an individual to
153     personally appear before, or be in the presence of, a notary at the time the notary performs a
154     notarial act.
155          Section 3. Section 46-1-3.7 is amended to read:
156          46-1-3.7. Rulemaking authority for electronic notarization.
157          (1) The director of elections in the Office of the Lieutenant Governor may make rules
158     in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, regarding
159     standards for and types of:
160          (a) electronic software and hardware that [a remote notary may use to]:
161          (i) a notary may use to perform [a remote] an electronic notarization; and
162          (ii) a remote notary may use to keep an electronic journal under Section 46-1-13;
163          (b) public and proprietary data sources that a remote notary may use to establish
164     satisfactory evidence of identity under Subsection [46-1-2(19)(b)] 46-1-2(20)(b);
165          (c) dynamic knowledge-based authentication or biometric data analysis that a remote
166     notary may use to establish satisfactory evidence of identity under Subsection[
167     46-1-2(19)(a)(ii)] 46-1-2(20)(a)(ii); and
168          (d) electronic seals a [remote] notary may use to complete an electronic notarial
169     certificate.
170          (2) When making a rule under this section, the director of elections in the Office of the
171     Lieutenant Governor shall review and consider standards recommended by one or more
172     national organizations that address the governance or operation of notaries.
173          Section 4. Section 46-1-14 is amended to read:
174          46-1-14. Entries in journal -- Required information.
175          (1) A notary may, for each notarial act the notary performs, and a remote notary shall,
176     for each notarial act the remote notary performs remotely, record the following information in
177     the journal described in Section 46-1-13 at the time of notarization:
178          (a) the date and time of day of the notarial act;
179          (b) the type of notarial act;
180          (c) the type title, or a description of the document, electronic record, or proceeding that
181     is the subject of the notarial act;
182          (d) the signature and printed name and address of each individual for whom a notarial
183     act is performed;
184          (e) the evidence of identity of each individual for whom a notarial act is performed, in
185     the form of:
186          (i) a statement that the person is personally known to the notary;
187          (ii) a description of the identification document and the identification document's
188     issuing agency, serial or identification number, and date of issuance or expiration;
189          (iii) the signature and printed name and address of a credible witness swearing or
190     affirming to the person's identity; or
191          (iv) if used for a remote notarization, a description of the dynamic knowledge-based
192     authentication or biometric data analysis that was used to provide satisfactory evidence of
193     identity under Subsection [46-1-2(19)(a)(ii)] 46-1-2(20)(a)(ii); and
194          (f) the fee, if any, the notary charged for the notarial act.
195          (2) A notary may record in the journal a description of the circumstances under which
196     the notary refused to perform or complete a notarial act.
197          (3) (a) A remote notary shall include with the journal a copy of the electronic recording
198     of the remote notarization.
199          (b) The electronic recording is not a public record and is not a part of the notary's
200     journal.
201          (4) A remote notary shall maintain, or ensure that a person that the notary designates as
202     a custodian under Subsection 46-1-15(2)(b)(i) maintains, for a period of five years, the
203     information described in Subsections (1) and (3) for each remote notarization the notary
204     performs.
205          Section 5. Section 46-1-17 is amended to read:
206          46-1-17. Obtaining official seal.
207          (1) A person may not provide an official seal to an individual claiming to be a notary,
208     unless the individual presents a copy of the individual's notarial commission, attached to a
209     notarized declaration substantially as follows:
210          Application for Notary's Official Seal
211          I, __________________ (name of individual requesting seal), declare that I am a notary
212     public duly commissioned by the state of Utah with a commission starting date of __________,
213     a commission expiration date of_______________, and a commission number of
214     ___________. As evidence, I attach to this statement a copy of my commission.
215          (2) (a) Except as provided in Subsection (2)(b), an individual may not create, obtain, or
216     possess an electronic seal unless:
217          (i) the individual is a [remote] notary[.]; and
218          (ii) the electronic seal complies with the standards established by rule under Subsection
219     46-1-3.7(1)(d).
220          (b) A person is not guilty of a violation of Subsection (2)(a) if the person is a business
221     that creates, obtains, or possesses an electronic seal for the sole purpose of providing the
222     electronic seal to a certified [remote] notary.
223          (3) A person who provides, creates, obtains, or possesses an official seal in violation of
224     this section is guilty of a class B misdemeanor.
225          Section 6. Effective date.
226          This bill takes effect on May 1, 2024.