South Carolina’s General Assembly introduced a pair of bills which would provide guidelines to allow electronic notary public acts as well as remote online notarization acts.
S. 487, the South Carolina Electronic Notary Public Act, and S. 486, the South Carolina Remote Online Notarization Act, are co-sponsored by Sens. Glenn Reese (D-Spartanburg) and Scott Talley (R-Spartanburg). Both bills were introduced and referred to the Committee on Family and Veterans’ Services.
S. 487 proposes to amend the state code to provide a citation and necessary definitions for notaries public commissioned in the state to register as electronic notaries public upon satisfying certain requirements. It would enumerate notarial acts that may be performed electronically, provide procedures and related requirements for performing notarial acts electronically, provide a schedule of fees that electronic notaries public may charge for performing certain electronic notarial acts and to allow certain other related fees.
The bill also would provide that liability, sanctions, and remedies for the improper performance of electronic notarial acts or for providing false or misleading information in registering to perform electronic notarial acts are the same as provided by law for the improper performance of non-electronic notarial acts. The bill states that certain conduct is prohibited and provides that such conduct constitutes a misdemeanor subject to certain penalties. It provides requirements for certifying electronic notarial acts, and to provide electronic notary public applications may not be accepted for processing until the administrative rules are in effect and vendors of technology are approved by the secretary of state.
S. 486 proposes to provide a citation and necessary definitions for the applicability of the chapter, and to provide that the secretary of state, by rule, shall develop and maintain standards for credential analysis and identity proofing and to provide requirements for the development of these standards.
It would provide that notaries public commissioned in the state may register as remote online notaries public upon satisfying certain requirements. The bill would enumerate notarial acts that may be performed by remote online notaries using electronic technology, provide requirements for conducting online notarial acts, and provide that remote online notaries public may charge fees for performing remote online notarial acts.
The bill would provide that liability, sanctions and remedies for the improper performance of remote online notarial acts or for providing false or misleading information in registering to perform remote online notarial acts are the same as provided by law for the improper performance of non-electronic notarial acts. It would specify certain recording requirements that are considered satisfied by remote notarial acts, and provide that remote online notary public applications will not be accepted for processing until the administrative rules are in effect and vendors of technology are approved by the secretary of state.
S. 487 states that a notary must register with the Secretary of State and identify the technology intended to use for electronic notarization, along with paying a registration fee of $50.
An individual registering to perform electronic notarial acts shall submit to the Secretary of State an application in a format prescribed by the Secretary of State which includes:
- Proof of successful completion of the course and examination required pursuant to Section 26‑2‑340;
- Disclosure of any and all license or commission revocations or other disciplinary actions against the registrant; and
- Any other information, evidence, or declaration required by the Secretary of State.
The bill proposes that the following notarial acts may be performed electronically:
- Acknowledgments;
- Oaths and affirmations;
- Attestations and jurats;
- Signature witnessing;
- Verifications of fact;
- Certification that a tangible copy of an electronic record is an accurate copy of the electronic record; and
- Any other acts authorized by law.
To conduct an electronic notarization, the bill requires that the principal appears in person before the electronic notary public at the time of notarization; and is personally known to the notary or identified by the notary through satisfactory evidence as defined in Chapter 1 of this title.
A notary public’s electronic signature or electronic seal is considered to be reliable if the following requirements are met:
- It is unique to the notary public;
- It is capable of independent verification;
- It is retained under the notary public’s sole control;
- It is attached to or logically associated with the electronic document; and
- It is linked to the data in such a manner that any subsequent alterations to the underlying document or electronic notarial certificate are tamper‑evident and may invalidate the electronic notarial act.
The bill also proposes maximum fees of electronic notarial acts of $10 per signature each for acknowledgments, oaths and affirmations, attestations and jurats, signature witnessing, verification of fact and any other acts authorized by law. The electronic notary also may charge a travel fee when traveling to perform an electronic notarial act if the notary public and the person requesting the electronic notarial act agree upon the travel fee in advance of the travel; and the notary public explains to the person requesting the notarial act that the travel fee is both separate from the notarial fee prescribed and neither is specified nor mandated by law.
The bill also requires that for every notarial act, the notary public shall record:
- The date and time of the notarial act;
- The type of notarial act;
- The title or a description of the record being notarized, if any;
- The printed full name of each principal;
- If identification of the principal is based on personal knowledge, a statement to that effect;
- If identification of the principal is based on satisfactory evidence of identity pursuant to Section 26‑1‑5(17), a description of the evidence relied upon and the name of any credible witness or witnesses;
- The address where the notarization was performed, if not the notary public’s business address;
- If the notarial act is performed electronically, a description of the electronic notarization system used; and
- The fee, if any, charged by the notary.
The bill also proposes that the electronic notary “shall keep the electronic notary public’s electronic journals, public key certificate, and electronic seal secure. The electronic notary public may not allow another person to use the electronic notary public’s electronic journals, public key certificate, or electronic seal.”
For S. 486, the bill provides that the Secretary of State develop and maintain standards for remote online notarization, stating it may “review and consider standards established by the National Association of Secretaries of State, and national standard setting bodies such as the Mortgage Industry Standards and Maintenance Organization.”
The bill provides that a remote online notary must be registered as an electronic notary public before registering as a remote online notary with the Secretary of State. A registration fee of $50 may be charged by the Secretary of State.
The application for a remote online notary must include proof of successful completion of the course and examination required; disclosure of any and all license or commission revocations or other disciplinary actions against the registrant; and any other information, evidence, or declaration required by the Secretary of State.
Remote online notaries can conduct the following acts, according to the bill:
- Acknowledgments;
- Oaths and affirmations;
- Attestations and jurats;
- Signature witnessing;
- Verifications of fact;
- Certification that a tangible copy of an electronic record is an accurate copy of the electronic record; and
- Any other acts authorized by law.
The bill proposes that a remote online notary physically located in South Carolina may perform remote online notarial acts for an individual physically located in South Carolina, in another state within the United States, and outside of the U.S. if:
- The remote online notary public has no actual knowledge that the act of making the statement or signing the records is prohibited in the jurisdiction in which the person is located; and
- The person placing his or her electronic signature on the electronic record confirms to the remote online notary public that the requested remote online notarial act and the electronic record:
- Are part of or pertain to a matter that is to be filed with or is currently before a court, governmental entity, or other entity in the United States;
- Relates to property located in the United States; or
- Relates to a transaction substantially connected to the United States.
The electronic journal kept by the notary must contain:
- The date and time of the notarization;
- The type of notarial act;
- The type, the title, or a description of the electronic record or proceeding;
- The printed name and address of each principal involved in the transaction proceeding;
- Evidence of identity of each principal involved in the transaction or proceeding in the form of:
- A statement that the person is personally known to the remote online notary public;
- A notation of the type of identification document provided to the remote online notary public;
- A record of the identity verification made under this chapter, if applicable; or
- If the principal is identified by one or more credible witnesses:
- The printed name and address of each credible witness swearing to or affirming the person’s identity; and
- For each credible witness not personally known to the remote online notary public, a description of the type of identification documents provided to the remote online notary public; and
- The fee, if any, charged for the notarization.
Remote online notaries shall create an audio and video copy of the performance of the notarial act, the bill states, and shall take “reasonable steps” to ensure the integrity, security and authenticity of the notarizations.
The bill spells out how remote online notaries shall verify the identity of the person. Identity may be verified by:
- The remote online notary public’s personal knowledge of the person creating the electronic signature; or
- Each of the following:
- Remote presentation by the person creating the electronic signature of a government‑issued identification credential, including a passport or driver’s license, that contains the signature and a photograph of the person;
- Credential analysis; and
- Identity proofing.