SF 2738

as introduced - 83rd Legislature (2003 - 2004) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to commerce; regulating the notarization of 
  1.3             electronic signatures and providing for electronically 
  1.4             fixing the notary's official signature; prescribing 
  1.5             criminal penalties; proposing coding for new law as 
  1.6             Minnesota Statutes, chapter 358A. 
  1.7   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.8      Section 1.  [358A.01] [DEFINITIONS.] 
  1.9      Subdivision 1.  [SCOPE.] For purposes of this chapter, the 
  1.10  terms defined in this section have the meanings given them. 
  1.11     Subd. 2.  [ELECTRONIC.] "Electronic" means relating to 
  1.12  technology having electrical, digital, magnetic, wireless, 
  1.13  optical, electromagnetic, or similar capabilities. 
  1.14     Subd. 3.  [ELECTRONIC NOTARY PUBLIC AND ELECTRONIC NOTARY.] 
  1.15  "Electronic notary public" and "electronic notary" mean a notary 
  1.16  public who has registered with the secretary of state the 
  1.17  capability of performing electronic notarial acts in conformance 
  1.18  with this chapter. 
  1.19     Subd. 4.  [ELECTRONIC DOCUMENT.] "Electronic document" 
  1.20  means information that is created, generated, sent, 
  1.21  communicated, received, or stored by electronic means. 
  1.22     Subd. 5.  [ELECTRONIC JOURNAL OF NOTARIAL 
  1.23  ACTS.] "Electronic journal of notarial acts" and "electronic 
  1.24  journal" mean an electronic device for creating and preserving a 
  1.25  chronological record of notarizations performed by a notary that:
  1.26     (1) allows a journal entry to be made by the notary only 
  2.1   after a biometric scan of a particular physical feature or 
  2.2   activity of the notary produces data that match with biometric 
  2.3   data of the notary stored in the device; 
  2.4      (2) does not allow a journal entry to be altered in content 
  2.5   or sequence by the notary or any other person after a record of 
  2.6   the notarization is entered and stored; 
  2.7      (3) allows entries to be viewed, printed out, and copied 
  2.8   electronically by any person using a password or another 
  2.9   nonbiometric access method designated by the notary; 
  2.10     (4) has a backup system in place to provide a duplicate 
  2.11  record in the event of loss of the original record; 
  2.12     (5) has the capability of capturing and storing the images 
  2.13  of a handwritten signature and a thumbprint as they are made, or 
  2.14  of capturing and storing in retrievable form, in lieu of a 
  2.15  thumbprint, another recognized biometric identifier; and 
  2.16     (6) has the capability of printing out on paper and of 
  2.17  providing electronic copies of any entry, any combination of 
  2.18  entries, or all entries, including the images of related 
  2.19  handwritten signatures and thumbprints, providing that if 
  2.20  another type of biometric identifier is used in lieu of 
  2.21  thumbprints, these identifiers will be included in any 
  2.22  electronic copy. 
  2.23     Subd. 6.  [ELECTRONIC NOTARIAL ACT AND ELECTRONIC 
  2.24  NOTARIZATION.] "Electronic notarial act" and "electronic 
  2.25  notarization" mean an official act by any electronic notary 
  2.26  public that involves electronic documents. 
  2.27     Subd. 7.  [ELECTRONIC NOTARY SEAL.] "Electronic notary seal"
  2.28  and "electronic seal" mean information within a notarized 
  2.29  electronic document that includes the notary's name, 
  2.30  jurisdiction, and commission expiration date, and generally 
  2.31  corresponds to data in notary seals used on paper documents. 
  2.32     Subd. 8.  [ELECTRONIC SIGNATURE.] "Electronic signature" 
  2.33  means an electronic sound, symbol, or process attached to or 
  2.34  logically associated with an electronic document and executed or 
  2.35  adopted by a person with the intent to sign the document. 
  2.36     Sec. 2.  [358A.02] [REGISTRATION WITH SECRETARY OF STATE.] 
  3.1      (a) Before performing electronic notarial acts, an 
  3.2   electronic notary shall register the capability to notarize 
  3.3   electronically with the secretary of state. 
  3.4      (b) Before performing electronic notarial acts after 
  3.5   recommissioning, an electronic notary shall reregister with the 
  3.6   secretary of state. 
  3.7      Sec. 3.  [358A.03] [ELECTRONIC REGISTRATION FORM.] 
  3.8      (a) An electronic form shall be used by an electronic 
  3.9   notary in registering with the secretary of state and it shall 
  3.10  include, at least: 
  3.11     (1) a description of the technology the registrant will use 
  3.12  to create an electronic signature in performing official acts; 
  3.13     (2) if the device used to create the registrant's 
  3.14  electronic signature was issued or registered through a licensed 
  3.15  authority, the name of that authority, the source of the 
  3.16  license, the starting and expiration dates of the device's term 
  3.17  of registration, and any revocations, annulments, or other 
  3.18  premature terminations of any registered device of the 
  3.19  registrant that was due to misuse or compromise of the device, 
  3.20  with the date, cause, and nature of each termination explained 
  3.21  in detail; and 
  3.22     (3) the e-mail address of the registrant. 
  3.23     (b) The electronic registration form for an electronic 
  3.24  notary shall: 
  3.25     (1) be signed by the registrant using the electronic 
  3.26  signature described in the form; 
  3.27     (2) include any decrypting instructions, codes, keys, or 
  3.28  software that allow the registration to be read; and 
  3.29     (3) be transmitted electronically to the secretary of state.
  3.30     Sec. 4.  [358A.04] [CONFIDENTIALITY.] 
  3.31     Information on the registration form of an electronic 
  3.32  notary pertaining to decrypting instructions, codes, keys, or 
  3.33  software shall be used by the secretary of state and designated 
  3.34  employees only for the purpose of performing official duties 
  3.35  under this chapter, and shall not be disclosed to any person 
  3.36  other than a government agent acting in an official capacity and 
  4.1   duly authorized to obtain such information, a person authorized 
  4.2   by court order, or to the registrant or the registrant's duly 
  4.3   authorized agent. 
  4.4      Sec. 5.  [358A.05] [TYPES OF ELECTRONIC NOTARIZATION.] 
  4.5      The following types of notarial act, as permitted by 
  4.6   chapter 358, may be performed electronically: 
  4.7      (1) acknowledgment; 
  4.8      (2) jurat; 
  4.9      (3) signature witnessing; and 
  4.10     (4) verification of fact. 
  4.11     Sec. 6.  [358A.06] [NOTARIZATION OF ELECTRONIC SIGNATURE.] 
  4.12     In notarizing an electronic signature, an electronic notary 
  4.13  shall take reasonable steps to ensure that any registered device 
  4.14  used to create the electronic signature is current and has not 
  4.15  been revoked or terminated by its issuing or registering 
  4.16  authority. 
  4.17     Sec. 7.  [358A.07] [PROHIBITIONS.] 
  4.18     An electronic notarization shall not be performed if the 
  4.19  signer of the electronic document: 
  4.20     (1) is not in the presence of the electronic notary at the 
  4.21  time of notarization; 
  4.22     (2) is not personally known to the notary or identified by 
  4.23  the notary through satisfactory evidence; 
  4.24     (3) shows a demeanor which causes the notary to have a 
  4.25  compelling doubt about whether the signer knows the consequences 
  4.26  of the transaction requiring a notarial act; or 
  4.27     (4) in the notary's judgment, is not acting of the signer's 
  4.28  own free will. 
  4.29     Sec. 8.  [358A.08] [DISQUALIFICATIONS AND LIMITATIONS.] 
  4.30     In performing an electronic notarial act, an electronic 
  4.31  notary shall follow the same rules for nonelectric notarial acts 
  4.32  regarding disqualifications, refusal to notarize, avoidance of 
  4.33  influence, false certificates, improper documents, intent to 
  4.34  deceive, testimonials, and unauthorized practice of law. 
  4.35     Sec. 9.  [385A.09] [RECORDING ELECTRONIC NOTARIAL ACTS.] 
  4.36     An electronic notary shall keep, maintain, protect, and 
  5.1   provide for lawful inspection a chronological official journal 
  5.2   of notarial acts that is either a permanently bound book with 
  5.3   numbered pages or an electronic journal. 
  5.4      Sec. 10.  [358A.10] [NOTARIAL COMPONENTS OF ELECTRONIC 
  5.5   DOCUMENT.] 
  5.6      In performing an electronic notarial act, the following 
  5.7   components must be attached to, or logically associated with, 
  5.8   the electronic document by the electronic notary: 
  5.9      (1) the official electronic signature of the notary; 
  5.10     (2) the notary's electronic seal, which comprises: 
  5.11     (i) the notary's name exactly as stated on the commission 
  5.12  issued in accordance with chapter 359; 
  5.13     (ii) the commission serial number; 
  5.14     (iii) the words "Electronic Notary Public"; 
  5.15     (iv) the words "State of Minnesota"; 
  5.16     (v) the expiration date of the commission; 
  5.17     (vi) the expiration date of any registered electronic 
  5.18  device used to create the notary's electronic signature; 
  5.19     (vii) the notary's e-mail address; and 
  5.20     (viii) the address of the notary's principal place of work 
  5.21  or business; and 
  5.22     (3) the completed wording of one of the following notarial 
  5.23  certificates from chapter 358: 
  5.24     (i) general acknowledgment; 
  5.25     (ii) jurat; 
  5.26     (iii) signature witnessing; or 
  5.27     (iv) verification of fact. 
  5.28     Sec. 11.  [358A.11] [ELECTRONIC SIGNATURE AND SEAL 
  5.29  EXCLUSIVELY FOR OFFICIAL ACTS.] 
  5.30     The notary's electronic signature and seal must be used 
  5.31  only for the purpose of performing electronic notarial acts. 
  5.32     Sec. 12.  [358A.12] [CHANGE OF E-MAIL ADDRESS.] 
  5.33     Within five days after the change of an electronic notary's 
  5.34  e-mail address, the notary shall electronically transmit to the 
  5.35  secretary of state a notice of the change, signed with the 
  5.36  notary's official electronic signature. 
  6.1      Sec. 13.  [358A.13] [EXPIRATION OF ELECTRONIC DEVICE.] 
  6.2      If the registration of the device used to create electronic 
  6.3   signatures either expires or is changed during the electronic 
  6.4   notary's term of office, the notary shall cease performing 
  6.5   electronic notarizations until: 
  6.6      (1) a new device is duly issued or registered to the 
  6.7   notary; and 
  6.8      (2) an electronically signed notice is sent to the 
  6.9   secretary of state which includes the starting and expiration 
  6.10  dates of any new registration term and any other new information 
  6.11  at variance with information in the original electronic 
  6.12  registration form, as described in section 358A.03. 
  6.13     Sec. 14.  [358A.14] [DISPOSITION OF SOFTWARE.] 
  6.14     (a) Except as provided in paragraph (b), when an electronic 
  6.15  notary's commission expires or is resigned or revoked, or when 
  6.16  an electronic notary dies, the notary or the notary's duly 
  6.17  authorized representative shall erase, delete, or destroy the 
  6.18  coding, disk, certificate, card, software, or program that 
  6.19  enables electronic affixation of the notary's official 
  6.20  electronic signature. 
  6.21     (b) A former electronic notary whose previous commission or 
  6.22  application was not revoked or denied by this state, need not 
  6.23  erase, delete, or destroy the coding, disk, certificate, card, 
  6.24  software, or program enabling electronic affixation of the 
  6.25  official electronic signature if the former electronic notary is 
  6.26  recommissioned and registered as an electronic notary using the 
  6.27  same electronic signature within three months after commission 
  6.28  expiration. 
  6.29     Sec. 15.  [358A.15] [LIABILITY, SANCTIONS, AND REMEDIES 
  6.30  RELATING TO IMPROPER ELECTRONIC NOTARIZATIONS.] 
  6.31     The liability, sanctions, and remedies for the improper 
  6.32  performance of electronic notarial acts are the same as 
  6.33  described and provided in chapter 359 for the improper 
  6.34  performance of nonelectronic notarial acts. 
  6.35     Sec. 16.  [358A.16] [IMPERSONATION AND IMPROPER INFLUENCE.] 
  6.36     The criminal sanctions for impersonating an electronic 
  7.1   notary and for soliciting, coercing, or influencing an 
  7.2   electronic notary to commit official misconduct in performing 
  7.3   electronic notarial acts are the same sanctions described in 
  7.4   section 358.08 in regard to impersonation and improper influence 
  7.5   in performing nonelectronic notarial acts. 
  7.6      Sec. 17.  [358A.17] [WRONGFUL POSSESSION OF SOFTWARE OR 
  7.7   HARDWARE.] 
  7.8      Any person who knowingly obtains, conceals, damages, or 
  7.9   destroys the certificate, disk, coding, card, program, software, 
  7.10  or hardware enabling an electronic notary to affix an official 
  7.11  electronic signature is guilty of a ......., punishable upon 
  7.12  conviction by a fine not exceeding $....... or imprisonment for 
  7.13  not more than ......., or both.