The Nevada Secretary of State has released proposed regulations to implement the remote online notary legislation, AB 413, which passed during the 2017 legislative session. Nevada Secretary of State Barbara Cegavske also hosted a workshop Oct. 17 to solicit public comments on the proposed regulations.
Registration
Under the proposed regulation, notaries who have been approved to perform electronic notarization, including notarization using audio-video communication, would be permitted to perform such notarizations. Notaries who provide electronic notary services without the secretary of state’s approval would be subject to suspension or termination of his or her notary commission.
To register as an electronic notary, the notary must provide:
- The notary public’s commission number as assigned by the Secretary of State;
- The name of the vendor whose platform or product the notary intends to use to perform electronic notarization;
- A copy of the notary public’s electronic seal and signature which is an exact representation of the signature on file with the Secretary of State; and
- A statement certifying that the notary will comply with the provisions of this Chapter and NRS Chapter 240.
The notary public would also have to take an additional required course of study as provided by the secretary of state.
Notaries whose registrations as electronic notaries have been approved by the secretary of state would retain the commission number related to his or her active notary commission. The effective date of the registration as an electronic notary would be the date all requirements have been met and confirmed by the secretary of state and the registration is entered into the secretary of state’s processing system.
Seal and journal
A notary’s electronic seal would have to comply with the provisions of NRS 240.040 and duplicate the seal used by a tradition notary except:
- “That once the electronic seal, signature and certificate are affixed and the electronic notarial act is complete, the document is rendered tamper-evident; and
- If the notarial act is performed by audio-video communication, the statement ‘Notarial act performed by audio-video communication’ must appear immediately below the stamp.”
“The electronic journal required pursuant to NRS 240.201 must not contain any personal identifying information (PII) that would not be otherwise required pursuant to this act, nor shall it include the recording of the notarial act if the act is performed by audio-video communication, unless the recording is protected from unauthorized access pursuant to this chapter.”
The electronic journal could not allow a record to be deleted or altered in content or sequence by the electronic notary public or any other person after the journal entry is recorded.
Requirements
To perform a notarial act using audio-video communication, the notary would have to be able to identify the principal using multi-factor identification and identify the record as the same record in which the principal executed the signature.
Nevada electronic notaries public would have to take reasonable steps to:
- Ensure the integrity, security and authenticity of electronic notarizations;
- Maintain a secure backup for the electronic journal;
- Maintain a secure backup for the recording, if the notarial act is performed using audio-video communication; and
- Ensure that any audio-video communication for the purpose of a notarial act using audio-video communication is secure from unauthorized access or interception.
- The proposed regulation defines electronic notarization solution as “a set of applications, programs, hardware, software or technology designed to enable the performance of an electronic notarial act.”
The proposed rule would require that “if the principal or electronic notary public must exit the audio-video communication session, the audio-video communication link is broken, or the resolution or quality of the transmission becomes such that the electronic notary public believes the process has been compromised and cannot be completed, the process must be started from the beginning.”
Credential analysis would have to be provided, “by a reputable third party that can demonstrate proven credential analysis processes and would have to employ at a minimum technology:
- That will allow the electronic notary public to accurately verify the identity of a principal;
- That allows the electronic notary public to compare the physical appearance of the principal through audio-video communication to the photo and physical attributes contained in the credential;
- That will ensure the presence of credential’s security features;
- That confirms the information contained in the credential through the use of information held by the issuing authority;
- That confirms the credential is not fraudulent or has not been altered;
- Confirms the principal is in possession of the credential; and
- Ensures the image of the credential is in a resolution sufficient to allow the electronic notary to identify the principal.”
It further states: “If the electronic notary public is unable to validate the credential of the principal, or to match the principal’s physical features with the credential, the process is stopped and the electronic notary public shall not complete the electronic notarial act. No further attempt may be made to complete the notarial act using audio-video communication.”
The proposed regulation defines identity proofing as “a process or a service operating according to this chapter through which a third person or party affirms the identity of the principal through a review of personal information from public or proprietary data sources.”
It would require that dynamic knowledge-based authentication assessments, at minimum:
- Be provided by a reputable third party that can demonstrate proven knowledge-based authentication processes;
- Require the principal to answer no less than five questions related to the principal’s personal history or identity derived from public or proprietary data sources;
- Require each question have a minimum of five possible answers;
- Require that 80 percent of the questions are correctly answered within two minutes by the principal;
- Require that if the principal does not correctly answer 80 percent of the questions that the principal may make a second attempt with the same electronic notary public within a 24-hour period and if the principal does retake the quiz within 24 hours, 60 percent of the questions would have to be replaced with 80 percent of all questions answered correctly;
- Confirm affirmatively that that the principal has or has not correctly answered the questions;
- Prohibit notarization of any electronic document by audio-video communication by the same electronic notary public within 24 hours if the principal has failed to correctly answer the required questions; and
- Keep confidential any questions asked and responses as part of the knowledge-based authentication process.
“An electronic notary public may satisfy NRS 240.1997 (1)(b)(3) by utilizing a third-party vendor approved by the Secretary of State to verify the identity of the principal for whom a notarial act by audio-video communication is performed. The Secretary of State shall not approve a method used by a third-party vendor unless the Secretary of State determines that the method will meet or exceed the accuracy of identity verifications conducted through a dynamic knowledge-based authentication assessment.”
Recording
Notaries would be required to record their notarial acts performed using audio-video communication. These records would have to be recorded separately from the notary journal. The recording would have to be protected from unauthorized access and any personal identifying information would have to be protected. The recording would be available:
- To the principal for which the notarial act was performed;
- To the Secretary of State’s Office;
- To law enforcement or state, federal or local agency in the course of an enforcement action;
- Pursuant to subpoena or court order; and
- To the electronic notary public that performed the notarial act using audio-video communications.
“Nothing in this regulation gives the employer of an electronic notary public or a solution provider the right to access the electronic seal, electronic signature, solution or recording of the notarial act using audio-video communication,” the proposal states.
Solution providers
To become a solution provider for electronic notaries, the solution provider would have to maintain a current Nevada business license at all times the Nevada electronic notary is utilizing their solution. They would have to “take reasonable steps to ensure that a Nevada electronic notary public using its solution has complied with Nevada law pertaining to the registration, training and other requirements pertaining to notaries public in Nevada.”
The proposed regulation states: “The electronic notary solution provider must register with the Secretary of State. Registration shall be made electronically and shall include:
- Legal name of the solution provider;
- How the business is organized;
- Mailing address of the solution provider;
- Physical address of the solution provider;
- Contact name;
- Phone number of the contact person;
- The name of the solution provided;
- The name of the provider or providers of the knowledge-based authentication, credential analysis and digital certificate services;
- The Nevada State Business License number;
- A description of the technology used to ensure compliance with the provisions of this chapter and NRS Chapter 240;
- Plan for the disposition, including but not limited to the retention and storage of documents, journals, recordings, etc., in the event the vendor no longer provides the electronic notary solution, for whatever reason; and
- Declaration that the solution complies with Nevada Laws pertaining to notarization.”
The solution for notarizing documents using audio-video communication would have to be approved by the secretary of state prior to use and would have to:
- “Provide secure access to the solution by password or other secure means identifying the Nevada electronic notary public;
- Verify from the Secretary of State’s notary registry each time an electronic notary public logs into the solution to ensure that the electronic notary is in active status before performing an electronic notarization;
- Prohibit the start or completion of the notarial act if the solution cannot verify that the notary is currently registered as an electronic notary public;
- Provide for the uninterrupted, continuous, simultaneous audio-video communication between the electronic notary public and principal;
- Provide for high-quality video resolution and audio quality to ensure that the notary public and the principal can see, hear and communicate with each other in real-time and that will allow the notary public to match the principal with the credential;
- Provide for a secure communication link that ensures that only the parties to the notarial act are part of the audio-video communication;
- Provide for an electronic notary journal to document the electronic notarial acts that complies with the provisions of this chapter and NRS Chapter240;
- Provide for the recording of the notarial act in sufficient quality to ensure the verification of the notarial act;
- Provide authentication that the electronic document presented is the same electronic document notarized;
- Allow for the affixation of the notarial wording and notary seal as required by this chapter and NRS Chapter 240;
- Allow for viewing of the notary seal and signature by a person viewing the electronic document;
- Provide a method of determining if the electronic document has been altered after the notarial seal has been affixed and the notarial act has been completed;
- Prevent unauthorized access to the transmission between the notary and the principal, the recording of the notarial act; any personal identifying information; and the electronic document that is being notarized; and
- Provide a method of generating a paper copy of the document including the notarial certificate, signature and seal and any other document associated with the execution of the notarial act.”
Prohibited actions
Electronic notaries would not be permitted to:
- “Fail to inform the principal that the notarial act is being performed using audio-video communication;
- Perform notarial act using audio-video communication while the electronic notary public is outside Nevada;
- Fail to record and/or properly store the recording of the notarial act performed using audio-video communication;
- Use an invalid electronic seal or certificate in the performance of an electronic notarial act;
- Fail to report a change in electronic seal or digital certificate;
- Use the electronic notary public’s electronic signature and/or electronic seal except in the performance of an electronic notarial act;
- Allow improper access to the electronic notary journal, signature, certificate or to the solution used to provide electronic notarial acts; or
- Violate any other requirement of this chapter and NRS Chapter 240 pertaining to the conduct of an electronic notarial act.”