In February 2022, Governor Hochul signed Chapter 104 of the Laws of 2022 (“Chapter 104”), which, among other things, created Section 135-c of the New York Executive Law authorizing electronic notarization and directed the Secretary of State to adopt rules and regulations necessary to implement electronic notarization. Section 135-c of the Executive Law became effective on January 31, 2023, and the new Part 182.2-182.11 of the Rules and Regulations of the Department of State (“Part 182”), became effective on January 25, 2023. Registration for traditional notaries to become electronic notaries opened February 1, 2023. Together, these amendments change record-keeping requirements, set forth identity verification procedures, authorize electronic notarization, provide for a separate notarial commission for electronic notary services and repeal remote ink notarization.
New Record-Keeping Requirements
As of January 25, 2023, all notaries must keep a “journal” or record of their notarial acts. Importantly, the notarial journal must be retained for a minimum of ten (10) years and must be capable of being produced to the secretary of state, or others, when needed. The journal entry must be made contemporaneously with the notarial act and:
For all notarization or notarial acts/services, the journal entry must include:
- The date, approximate time, and type of notarial acts performed;
- The name and address of any individuals for whom a notarial act was performed;
- The number of notarial services provided and whether the notary performed in-person or electronic notarial services;
- The identity verification procedures used for any personal appearance before the notary public; and
- The type of credential utilized during the identity verification procedures to identify the signer (also referred to as the “principal”) or witnesses (if any).
For electronic notarization, the journal entry must also include and identify: (1) the communication technology utilized; (2) the certification authority; and (3) the verification providers used.
These requirements will be discussed in further detail below. It is important to note, however, that for electronic notarization, an actual audio and video recording of the entire electronic notarization act must be made and preserved.
Furthermore, we advise that notaries commissioned to perform electronic notarization keep separate journals for in-person notarization and electronic notarization as notaries are given a separate commission number when licensed to perform electronic notarization. Notaries may also keep an electronic journal. However, the electronic journal must remain secure and under the sole control of the notary.
Authorization and Additional Requirements for Electronic Notarization
As mentioned above, electronic notarization has now been authorized in New York under Executive Law § 135-c, provided that such notary public is separately and additionally registered with the Department of State to perform electronic notarization and the required electronic notarization procedures are followed. Existing notaries must register online and pay a $60.00 fee. Those who are not already a notary but wish to become an electronic notary must first be commissioned as a traditional notary.
Electronic notarization must be done by utilizing software, or service providers, which comply with the Department of State Regulations. Furthermore, in addition to the generally applicable notary requirements, all electronic notaries must also:
- Be physically located within New York State when performing electronic notarization and use a network which permits identification of the notary’s location;
- Affix a unique independently verifiable electronic signature to the electronic record;
- Use their designated electronic signature only for the purpose of performing electronic notarial acts;
- Ensure the notarial certificate for the electronic notarial act clearly states that the principal appeared virtually using communication technology;
- For execution of any instrument in writing, if under applicable law the record may be signed with an electronic signature, confirm that such instrument is the same instrument in which the principal made a statement or on which the principal executed a signature;
- If the principal is outside the United States, the principal must verbally confirm the record or subject of the notarial act: (i) is to be filed with or relates to a matter before a public official or court, governmental entity, or other entity subject to the jurisdiction of the United States; (ii) involves property located in the territorial jurisdiction of the United States; or (iii) involves a transaction substantially connected with the United States; and
- Electronic notaries must also add the following statement to their signature (also referred to as the “jurat”): “This electronic notarial act involved a remote online appearance involving the use of communication technology.”
Notably, the individual utilizing a New York electronic notary may be anywhere in the world so long as all the identity verification requirements are met. However, the electronic notary must be physically present in New York when performing the notarial acts and the documents notarized must relate to the United States in one of the manners set forth in item “6” above. Principals wishing to use a New York electronic notary for legal services outside New York should check with their local jurisdiction as to whether electronic notarization is accepted.
Updated Identity Verification Requirements
The amendments to Part 182 have also updated the required identity verification requirements for in-person notarization and promulgated new rules for electronic notary identity verification. All notaries must record the method of identity verification utilized in their journal entry.
For in-person notarization, identity verification requirements can be satisfied through:
- Presentation of a valid and current government identification card which has a photo of the principal, accurate physical description of the principal (if applicable), and includes the principal’s signature;
- Presentation of at least two current documents issued by an institution, business entity, or federal or state government with at least the principal’s signature;
- Attestation by the notary that the principal is personally known to them;
- The oath or affirmation of a witness who is personally known to both the principal and notary; or
- The oath or affirmation of two witnesses who know the principal personally and provide identification that meets the requirements set forth in item “1” above.
For electronic notaries, identity verification requirements can be satisfied if any of the following are met:
- The notary can verify the identity of the principal through the virtual presentation of an official government issued form of ID which is verified via credential analysis and identity proofing;
- Attestation by the notary that the principal is personally known to them; or
- An oath or affirmation of a witness who personally knows the principal and electronic notary or by an oath or affirmation of two witnesses whose identify can be verified through the virtual presentation of an official government issued form of identification, which is verified via credential analysis and identity proofing.
Additional Requirements for Electronic Notarization—Communications Technology, Credential Analysis and Identity-Proofing
As mentioned above, electronic notaries must utilize third-party service providers for: (a) the communications technology; (b) credential analysis; and (c) identity proofing. Such service providers will likely begin to offer services in the near future, but at the time of this writing, no known service providers comply with the New York electronic notary requirements. Moreover, New York State has indicated it will not recommend service providers. Ultimately, it is the responsibility of the electronic notary to ensure that their chosen service provider satisfies the electronic identity verification requirements.
Communications technology refers to the video-audio conferencing which the notary must use during the electronic notary session. Under Part 182.8, all parties must be able to see and speak to each other in real time via a secure signal transmission throughout the entire notarization process. Thus, video conferencing providers such as Zoom, Skype, or Webex cannot be utilized for electronic notarization. Additionally, the communications technology must include a process of reproduction which records any additions, deletions, or changes and must ensure that the electronic record presented for electronic notarization is the same record electronically signed by the principal. In addition to the journal entry, the electronic notary must retain a recording of the audio and video conference for at least ten (10) years—this recording must show the complete uninterrupted notarial act and verification procedures, any signatures required for completion of the notarial act, and a verbal description of the type of identification used.
Credential analysis under Part 182.6 is the process by which a third-party service provider authenticates the government issued identification card presented by the principal, or witness, during the electronic notary identity verification procedures (i.e., the form of identification provided is not fake).
Identity proofing under Part 186.7 refers to the process in which the electronic notary uses third-party data to verify the identity of the individual via review of public and private data sources (i.e., the person is who they say they are).
Fees available for in-person notarization are unchanged. However, Part 182.11 sets forth the fees available for electronic notarial acts. New York licensed electronic notaries may charge a $25.00 fee for each electronic notarial act performed, even if multiple notarial acts are performed in a single electronic notary session. Electronic notaries may also charge $2.00 for “papering out.” Papering out is the process by which the electronic notary executes a physical certificate of authenticity for a document created via electronic notary. The certificate of authenticity allows the notary to attest that the document is an accurate copy of the document electronically notarized.
Under the new Executive Law § 135-c (6)(d), county clerks, city registrars, or other recording officers are required to accept a tangible copy of an electronically notarized record if the tangible copy is accompanied by the certificate of authenticity. Executive Law § 135-c also provides the language that the electronic notary must use when executing a certificate of authenticity. For convenience, principals should request a certificate of authenticity when engaging in electronic notarization.
New York State has provided some guidance regarding the new requirements. The notary public license laws and regulations may be found HERE. The Department of State webpage regarding notary publics, including instructions to register as an electronic notary, may be found HERE.
Should you have any questions, please contact Suzanne E. Volpe or Christian A.L. Gates, or any member of our Municipal Law Practice Group.