The Colorado General Assembly is considering HB 1167, a bill that would authorize the use of audio-video communication in the performance of notarial acts. Among other things, the bill prohibits notaries and operators of remote notarization systems from using personal information collected during a remote notarization for any purpose other than completing the notarial act or to process the transaction for which the information was provided.
The bill’s prime sponsors are Reps. Monica Duran, D-Jefferson County, and Terri Carver, R-El Paso County, and Sens. Robert Rodriguez, D-Denver County, and Chris Holbert, R-Douglas County.
Under the proposed legislation, if a notarial act requires the individual to appear personally before the notary, it means the person must either be “in the same physical location as another individual and close enough to see, here, communicate with and exchange tangible identification credentials with that individual;” or interact “with a remotely located individual by means of real-time audio-video communication in compliance with section 24-21-514.5 and rules adopted by the secretary of state.
The proposed legislation would allow notaries to perform remote notarizations only with respect to an electronic record and in compliance with the proposed statute and any rules adopted by the secretary of state for a remotely located individual who is located in the state, in the country or outside the United States if the notary has no actual knowledge that the notarial act is prohibited in the jurisdiction in which the remotely located individual is physically located during the notarization. The remotely located individual also would have to confirm that the requested notarization and the record relate to a matter that will be filed or is currently before a jurisdiction in the United State or regards property in the United States.
Notaries would be prohibited from using remote notarization systems to notarize a record relating to the electoral process; or a will codicil, document purporting to be a will or codicil or any acknowledgment required under section 15-11-502 or 15-11-504.
A remote notarization system would be a device or process that:
- “Allows a notary public and a remotely located individual to communicate with each other simultaneously by sight and sound; and
- When necessary and consistent with other applicable law, facilitates communication with a remotely located individual who has a vision, hearing or speech impairment.”
The system would have to:
- “Require the notary public, the remotely located individual, and any required witness to access the system through an authentication procedure that complies with rules adopted by the secretary of state regarding security and access;
- Enable the notary public to verify the identity of the remotely located individual and any required witness by means of personal knowledge or satisfactory evidence of identity in compliance with subsection (6) of the bill; and
- Confirm that the notary public, the remotely located individual, and any required witness are viewing the same record and that all signatures, changes and attachments to the record are made in real time.
“Before a notary public performs the notary public’s initial notarization using a remote notarization system, the notary public shall notify the secretary of state that the notary public will be performing remote notarizations and shall identify each remote notarization system that the notary public intends to use. The remote notarization system must conform to this part 5 and any rules adopted by the secretary of state. The notice much be submitted in the format required by the secretary of state and must:
- Include an affirmation that the notary public has read and will comply with this section and all rules adopted by the secretary of state; and
- Be accompanied by proof that the notary public has successfully completed any training and examination required by the secretary of state.”
To perform a remote notarization, the notary must be located in Colorado at the time of the notarial act, execute the notarial act in a single, real-time session and confirm that any record that is signed, acknowledge, or otherwise presented for notarization by the remotely located individual is the same record signed by the notary public. The notary also would have to confirm that the quality of the audio-video communication is sufficient to make the determinations required for the notarial act under part 5 and any other law of Colorado and identify the venue for the notarial act as the jurisdiction within the state where the notary is physically located while performing the act.
The notary public would be considered to have satisfactory evidence of identity if the notary could identify the remotely located individual who personally appears before him or her by means of audio-video communication by using at least one of the following methods:
- The oath or affirmation of a credible witness who personally knows the remotely located individual, is personally known to the notary public and is in the physical presence of the notary public or the remotely located individual;
- Remote presentation and credential analysis of a government-issued identification credential, and the data contained on the credential, that contains the signature and a photograph of the remotely located individual and at least one of the following – a dynamic, knowledge-based authentication assessment by a trusted third party; a valid public key certificate that complies with rules adopted by the secretary of state; an identity verification by a trusted third party that complies with rules adopted by the secretary of state; an identity verification by a trusted third party that complies with rules adopted by the secretary of state.
Notaries would be allowed to refuse to perform a notarial act if the notary is not satisfied that the requirements of the bill are met. The certificate of notarial act for a remote notarization would have to indicate that the notarial act was performed using audio-video communication technology.
Before creating an audio-video recording of a remote notarization, the notary would have to disclose to the remotely located individual that the notarization is being recorded as well as the details of the recording’s intended storage, including where and for how long it will be stored. The remotely located individual would have to explicitly consent to both the recording and the storage of the recording, and the recording would have to be stored and secured in compliance with rules adopted by the secretary of state.
A recording would have to be in addition to the notary’s journal entry where required by Section 24-21-519.
“The recording must include the information described in this subsection (9)(b), but must not include any other information. Any other information included on the recording is not admissible in any Colorado court of law, legal proceeding or administrative hearing for any purpose, nor is the information admissible in any proceeding in any other court of law, legal proceeding or administrative hearing if Colorado law applies with respect to remote notarization.”
The recording would have to include:
- “At the commencement of the recording, a recitation by the notary public of information sufficient to identify the notarial act, the date and time of the notarial act,a description of the nature of the document or documents to which the notarial act is to relate, the identity of the remotely located individual whose signature is to be the subject of the notarial act and of any person who will act as a credible witness to identify the individual signer, and the method or methods by which the remotely located individual and any credible witness will be identified to the notary public;
- A declaration by the remotely located individual that the individual’s signature on the record is knowingly and voluntarily made; and
- If the remotely located individual for whom the notarial act is being performed is identified by personal knowledge, an explanation by the notary public as to how the notary public knows the remotely located individual and how long the notary public has known the remotely located individual.”
If the remotely located individual is identified by a credible witness, the recording also would have to include a statement by the notary as to how the notary knows the credible witness and how long the notary has known the credible witness. It also would have to include an explanation by the credible witness as to how the credible witness knows the remotely located individual and how long the credible witness has known the remotely located individual.
Notaries who perform remote notarizations will have to maintain an electronic journal to record each remote notarization. The journal would have to include the electronic signature of the remotely located individual for each remote notarization.
“A person that participates in a remote notarization in any capacity, including the individual, the notary public, financial institutions, real estate agents, realty businesses, mortgage insurance companies, title insurance companies, title companies, attorneys, law firms, and county governments, municipal governments, special districts and a remote notarization system or other provider of an audio-video communication technology, identity proofing technology or storage of an audio-video recording created under section 24-21-514.5(9), shall not sell, offer for sale, use or transfer for use any personal information collected in the course of performing a remote notarization for any purpose other than:
- Completing the notarial act; or
- As necessary to effect, administer, enforce, service or process a notarized document for its intended purpose.”
The secretary of state would be authorized to adopt rules to prescribe the manner of performing notarial acts using audio-video communication technology, including provisions to ensure the security, integrity and accessibility of records relating to those acts; and prescribe requirements for the approval and use of remote notarization systems and storage systems.
“This act takes effect Jan. 1, 2021; except that, if a referendum petition is filed pursuant to section 1(2) of article V of the state constitution against this act or an item, section, or part of this act within the 90-day period after final adjournment of the general assembly, then the act, item, section or part will not take effect unless approved by the people at the general election to be held in Nov. 2020 and, in such case, will take effect Jan. 1, 2021, or on the date of the official declaration of the vote thereon by the governor, whichever is later.”