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Electronic Notorial Acts And Forms

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(5 ILCS 312/Art. VI-A heading)

ARTICLE VI-AELECTRONIC NOTARIAL ACTS AND FORMS

(5 ILCS 312/6A-101)

(This Section may contain text from a Public Act with a delayed effective date)

Sec. 6A-101. Requirements for systems and providers of electronic notarial technology.

(a) An electronic notarization system shall comply with this Act and any rules adopted by the Secretary of State.

(b) An electronic notarization system requiring enrollment shall enroll only persons commissioned as electronic notaries public by the Secretary of State.

(c) An electronic notarization vendor shall take reasonable steps to ensure that an electronic notary public who has enrolled to use the system has the knowledge to use it to perform electronic notarial acts in compliance with this Act.

(d) A provider of an electronic notarization system requiring enrollment shall notify the Secretary of State of the name of each electronic notary public who enrolls in the system within 5 days after enrollment by means prescribed by rule by the Secretary of State.

(e) The Secretary of State shall adopt administrative rules that set forth the requirements a provider of electronic notarization technology must meet in order to be approved for use in the State of Illinois. At a minimum, those administrative rules shall establish:

(1) minimum standards ensuring a secure means of authentication to be employed to protect the integrity of the electronic notary's electronic seal and electronic signature;
(2) minimum standards ensuring that documents electronically notarized be tamper-evident and protected from unauthorized use; and
(3) requirements for competent operation of the electronic platform.

(Source: P.A. 102-160 (See Section 99 of P.A. 102-160 for effective date of P.A. 102-160).)

(5 ILCS 312/6A-102)

(This Section may contain text from a Public Act with a delayed effective date)

Sec. 6A-102. Electronic notary not liable for system failure. An electronic notary public who exercised reasonable care enrolling in and using an electronic notarization system shall not be liable for any damages resulting from the system's failure to comply with the requirements of this Act. Any provision in a contract or agreement between the electronic notary public and provider that attempts to waive this immunity shall be null, void, and of no effect.

(Source: P.A. 102-160 (See Section 99 of P.A. 102-160 for effective date of P.A. 102-160).)

(5 ILCS 312/6A-103)

(This Section may contain text from a Public Act with a delayed effective date)

Sec. 6A-103. Electronic notarial acts.

(a) An electronic notary public:

(1) is a notary public for purposes of this Act and is subject to all provisions of this Act;
(2) may perform notarial acts as provided by this Act in addition to performing electronic notarizations; and
(3) may perform an electronic notarization authorized under this Article.

(b) In performing an electronic notarization, an electronic notary public shall verify the identity of a person creating an electronic signature at the time that the signature is taken by using two-way audio and video conference technology that meets the requirements of this Act and rules adopted under this Article. For the purposes of performing an electronic notarial act for a person using audio-video communication, an electronic notary public has satisfactory or documentary evidence of the identity of the person if the electronic notary public confirms the identity of the person by:

(1) the electronic notary public's personal knowledge of the person creating the electronic signature; or
(2) each of the following:

(A) remote electronic 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;
(B) credential analysis of the front and back of the government-issued identification credential and the data thereon; and
(C) a dynamic knowledge-based authentication assessment.

(c) An electronic notary public may perform any of the acts set forth in Section 6-102 using audio-video communication in accordance with this Section and any rules adopted by the Secretary of State.

(d) If an electronic notarial act is performed using audio-video communication:

(1) the technology must allow the persons communicating to see and speak to each other simultaneously;
(2) the signal transmission must be in real time; and
(3) the electronic notarial act must be recorded.

(e) The validity of the electronic notarial act will be determined by applying the laws of the State of Illinois.

(f) The electronic notarial certificate for an electronic notarization must include a notation that the notarization is an electronic notarization.

(g) When performing an electronic notarization, an electronic notary public shall complete an electronic notarial certificate and attach or logically associate the electronic notary's electronic signature and seal to that certificate in a tamper evident manner. Evidence of tampering pursuant to this standard may be used to determine whether the electronic notarial act is valid or invalid.

(h) The liability, sanctions, and remedies for improper performance of electronic notarial acts are the same as described and provided by law for the improper performance of non-electronic notarial acts as described under Section 7-108.

(i) Electronic notarial acts need to fulfill certain basic requirements to ensure non-repudiation and the capability of being authenticated by the Secretary of State for purposes of issuing apostilles and certificates of authentication. The requirements are as follows:

(1) the fact of the electronic notarial act, including the electronic notary's identity, signature, and electronic commission status, must be verifiable by the Secretary of State; and
(2) the notarized electronic document will be rendered ineligible for authentication by the Secretary of State if it is improperly modified after the time of electronic notarization, including any unauthorized alterations to the document content, the electronic notarial certificate, the electronic notary public's electronic signature, or the electronic notary public's official electronic seal.

(Source: P.A. 102-160 (See Section 99 of P.A. 102-160 for effective date of P.A. 102-160).)

(5 ILCS 312/6A-104)

(This Section may contain text from a Public Act with a delayed effective date)

Sec. 6A-104. Requirements for audio-video communication.

(a) An electronic notary public shall arrange for a recording to be made of each electronic notarial act performed using audio-video communication. The audio-video recording required by this Section shall be in addition to the journal entry for the electronic notarial act required by Section 3-107. Before performing any electronic notarial act using audio-video communication, the electronic notary public must inform all participating persons that the electronic notarization will be electronically recorded.

(b) If the person for whom the electronic notarial act is being performed is identified by personal knowledge, the recording of the electronic notarial act must include an explanation by the electronic notary public as to how he or she knows the person and how long he or she has known the person.

(1) the credible witness must appear before the electronic notary public; and
(2) the recording of the electronic notarial act must include:

(A) a statement by the electronic notary public as to whether he or she identified the credible witness by personal knowledge or satisfactory evidence; and
(B) an explanation by the credible witness as to how he or she knows the person for whom the electronic notarial act is being performed and how long he or she has known the person.

(d) An electronic notary public shall keep a recording made pursuant to this Section for a period of not less than 7 years, regardless of whether the electronic notarial act was actually completed.

(e) An electronic notary public who performs an electronic notarial act for a principal by means of audio-video communication shall be located within the State of Illinois at the time the electronic notarial act is performed. The electronic notary public shall include a statement in the electronic notarial certificate to indicate that the electronic notarial act was performed by means of audio-video communication. The statement may also be included in the electronic notarial seal.

(f) An electronic notary public who performs an electronic notarial act for a principal by means of audio-video communication shall:

(1) be located within this State at the time the electronic notarial act is performed;
(2) execute the electronic notarial act in a single recorded session that complies with Section 6A-103;
(3) be satisfied that any electronic record that is electronically signed, acknowledged, or otherwise presented for electronic notarization by the principal is the same record electronically signed by the electronic notary;
(4) be satisfied that the quality of the audio-video communication is sufficient to make the determination required for the electronic notarial act under this Act and any other law of this State; and
(5) identify the venue for the electronic notarial act as the jurisdiction within Illinois where the notary is physically located while performing the act.

(g) An electronic notarization system used to perform electronic notarial acts by means of audio-video communication shall conform to the requirements set forth in this Act and by administrative rules adopted by the Secretary of State.

(h) The provisions of Section 3-107 related respectively to security, inspection, copying, and disposition of the journal shall also apply to security, inspection, copying, and disposition of audio-video recordings required by this Section.

(i) The Secretary of State shall adopt administrative rules to implement this Section.

(Source: P.A. 102-160 (See Section 99 of P.A. 102-160 for effective date of P.A. 102-160).)

(5 ILCS 312/6A-105)

(This Section may contain text from a Public Act with a delayed effective date)

Sec. 6A-105. Electronic certificate of notarial acts.

(a) An electronic notarial certificate must be evidenced by an electronic notarial certificate signed and dated by the electronic notary public. The electronic notarial certificate must include identification of the jurisdiction in which the electronic notarial act is performed and the electronic seal of the electronic notary public.

(b) An electronic notarial certificate of an electronic notarial act is sufficient if it meets the requirements of subsection (a) and it:

(1) is in the short form set forth in 6-105;
(2) is in a form otherwise prescribed by the law of this State; or
(3) sets forth the actions of the electronic notary public and those are sufficient to meet the requirements of the designated electronic notarial act.

(c) At the time of an electronic notarial act, an electronic notary public shall electronically sign every electronic notarial certificate and electronically affix the electronic seal clearly and legibly, so that it is capable of photographic reproduction. The illegibility of any of the information required under this Section does not affect the validity of a transaction.

(Source: P.A. 102-160 (See Section 99 of P.A. 102-160 for effective date of P.A. 102-160).)

(5 ILCS 312/6A-106)

(This Section may contain text from a Public Act with a delayed effective date)

Sec. 6A-106. Electronic acknowledgments; physical presence.

(a) For purposes of this Act, a person may appear before the person taking the acknowledgment by:

(1) being in the same physical location as the other person and close enough to see, hear, communicate with, and exchange tangible identification credentials with that person; or
(2) being outside the physical presence of the other person, but interacting with the other person by means of communication technology.

(b) If the acknowledging person is outside the physical presence of the person taking the acknowledgment, the certification of acknowledgment must indicate that the notarial act was performed by means of communication technology. A form of certificate of acknowledgment as provided by the Secretary of State, which may include the use of a remote online notarial certificate, is sufficient for purposes of this subsection (b) if it substantially reads as follows: "The foregoing instrument was acknowledged before me by means of communication technology this (date) by … (each form continued as sufficient for its respective purposes.)".

(Source: P.A. 102-160 (See Section 99 of P.A. 102-160 for effective date of P.A. 102-160).)

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