Tennessee Legislative and Regulatory Update

The Tennessee legislature recently enacted the Online Notary Public Act, effective July 1, 2019.  In addition, the Tennessee Department of State has adopted rules for the commissioning of online notary publics and the standards for performing online notarizations. 

TENNESSEE SENATE BILL 1758

A person may personally appear before the officer taking an acknowledgment by:

  • Physically appearing before the officer; or
  • Appearing by an interactive two-way audio and video communication that meets the online notarization requirements under rules promulgated by the secretary of state.

The acknowledging officer must designate in the acknowledgment form whether the principal personally appeared before the officer or appeared by an interactive two-way audio and video communication.  If the person appears by an interactive two-way audio and video communication, the appearance will be deemed compliant if the acknowledging officer amends the acknowledgment forms to read “remotely appeared” or “remotely appeared before me” rather than “personal appeared” or “appeared before me.”

“Appear” or “appearance” means either physical appearance or online appearance.

“Credential analysis” means a process or service operating as outlined in rules promulgated by the secretary of state, through which a third person affirms the validity of a government-issued identification credential through review of public and proprietary data sources.

“Electronic notarial certificate” means the portion of a notarized electronic document that is completed by an online notary public and contains the following:

  • The online notary public’s electronic signature, electronic seal, title, and commission expiration date;
  • Other information required by the secretary of state in rule concerning the date and place of the online notarization; and
  • The facts attested to or certified by the online notary public in the particular notarization.

“Electronic seal” means information within a notarized electronic document that confirms the online notary public’s name, jurisdiction, identifying number, and commission expiration date and generally corresponds to information in notary seals used on paper documents.

“Electronic signature” means an electronic sound, symbol, or process attached to or logically associated with an electronic document and executed or adopted by a person with the intent to sign the electronic document.

“Identity proofing” means a process or service operating according to criteria as outlined in rules promulgated by the secretary of state, through which a third person affirms the identity of an individual through review of personal information in public and proprietary data sources.

“Online notarization” means a notarial act performed by means of two-way video and audio conference technology that meets the required standards adopted.

“Online notary public” means a notary public who has been commissioned to perform online notarizations as outlined in this part.

“Principal” means an individual:

  • Whose electronic signature is notarized in an online notarization; or
  • Taking an oath or affirmation from the online notary public but not in the capacity of a witness for the online notarization.

“Remote presentation” means transmission to the online notary public through communication technology of an image of a government-issued identification credential that is of sufficient quality to enable the online notary public to:

  • Identify the individual seeking the online notary public’s services; and
  • Perform credential analysis.

The secretary of state will promulgate standards for online notarization, including standards for credential analysis and identity proofing.

A person who has been commissioned as a notary public may apply to the secretary of state to be commissioned as an online notary public in the manner provided by this section. A person qualifies to be commissioned as an online notary public by:

  • Satisfying the qualification requirements for appointment as a notary public; and
  • Submitting to the secretary of state an application in the form prescribed by the secretary of state that satisfies the secretary of state that the applicant is qualified.

An online notary public:

  • May perform notarial acts as provided by law; and
  • May perform an online notarization, without regard to the physical location of the principal, if the notary is physically located in Tennessee and the online electronic notarization relates to:
    • A document involving real estate located in this state;
    • An agreement performable wholly or partly in Tennessee;
    • An agreement or instrument creating a debt that is payable at a location in Tennessee;
    • An agreement that specifically requires the application of the laws of Tennessee;
    • A document, including an affidavit, that is intended to be filed or used in a court located in Tennessee; or
    • An acknowledgment or affirmation made by a person while the person is located in Tennessee.

An online notary public must keep a secure electronic record of electronic documents notarized by the online notary public. The electronic record must contain for each online notarization:

  • The date and time of the notarization;
  • The type of notarial act;
  • The type, the title, or a description of the electronic document or proceeding;
  • The printed name and address of each principal involved in the transaction or 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 online notary public;
    • A notation of the type of identification document provided to the online notary public;
    • A record of the identity verification made, if applicable; or
    • 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 online notary public, a description of the type of identification documents provided to the online notary public;
  • A recording of any video and audio conference that is the basis for satisfactory evidence of identity and a notation of the type of identification presented as evidence; and
  • The fee, if any, charged for the notarization.

The online notary public must take reasonable steps to:

  • Ensure the integrity, security, and authenticity of online notarizations;
  • Maintain the required backup for the electronic record; and
  • Protect the backup record from unauthorized use.

The electronic record required above must be maintained for at least five years after the date of the transaction or proceeding requiring notarization.

An online notary public may only use the online notary public’s electronic signature for performing online notarizations.  An online notary public must attach the online notary public’s electronic signature and electronic seal to the electronic notarial certificate of an electronic document in a manner that is capable of independent verification and renders any subsequent change or modification to the electronic document evident.

An online notary public may perform an online notarization that meets the requirements of this part and rules promulgated pursuant to this part regardless of whether the principal is physically located in Tennessee at the time of the online notarization.  In performing an online notarization, an online notary public must verify the identity of a person creating an electronic signature at the time that the signature is taken by using two-way video and audio conference technology that meets the requirements of this part and related promulgated rules. Identity may be verified by the online notary public’s personal knowledge of the person creating the electronic signature; or

  • 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 as described above; and
  • Identity proofing of the person as described above.

The online notary public must take reasonable steps to ensure that the two-way video and audio communication used in an online notarization is secure from unauthorized interception. 

The electronic notarial certificate for an online notarization must include a notation that the notarization is an online notarization.

An online notary public or the online notary public’s employer may charge a fee in an amount not to exceed $25.00 each for performing an online notarization in addition to any other authorized fees.

TENNESSEE RULES 1360-07-03

A commissioned notary public may apply for commissioning as an online notary public.  The rules provide for the payment of a $75.00 application fee and outline the application process.

An online notary public may perform authorized online notarial acts relating to electronic documents only if the principal personally appears before the online notary public; however, the personal appearance may be by means of electronic two-way audio and video communication.

Online notarization may only be done if the online notary public is in the state of Tennessee.  The principal does not have to be physically located in Tennessee at the time of the online notarization.

The online notary public must verify the identity of a principal by means of two-way video and audio conference technology.  Identity may be verified by the online notary public’s personal knowledge of the principal, or by presentation of satisfactory identification, credential analysis or identity proofing as specified by the rules.

The online notary public must complete and attach a unique electronic notarial certificate to all written notarial acts that identifies the principal, the date of notarization, the state and county in which the notarization was performed, a statement that the notarial act was an online notarization, and the type of notarial act performed. 

An online notary public must keep, for at least five years, a secure electronic record of all electronic documents notarized by the online notary public.

The online notary public must take reasonable steps to ensure that the two-way video and audio communication used is encrypted during transmission and secure from unauthorized interception.

An online notary public must use the same unique electronic signature and electronic seal for all online notarial acts.  The rules provide the requirements for the electronic seal.

An online notary public may charge a fee that does not exceed $25 for performing an online notarization.

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Diane Jenkins

Attorney

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