Per NYS Department of State:
Changes in law
A new law, NY Executive Law Section 135-c, authorizes notaries to perform electronic notarial acts, provided they first register with the Department of State and comply with new rules for performing electronic notarizations. On February 1, 2023, notaries wishing to provide electronic notary services will be able to register as an Electronic Notary with the Department of State.
What is an Electronic Notary?
Electronic notaries are notaries public who are registered to perform electronic notarial acts, which may be done remotely online. An electronic notary commission will authorize the license holder to provide both electronic remote online notarial services and traditional notary services.
What are Electronic notarial acts?
Electronic notarial acts are notarial acts performed using software to create an electronically generated and saved record. An electronic notarial act may be done remotely whereby the notary and the signer are physically separated but able to communicate with each other simultaneously by sight and sound using means authorized by the Secretary of State. Those means are set forth in new regulations which are available here.
How is electronic notarization performed?
Electronic notarization is done by a registered electronic notary using commercially available software that complies with Department of State regulations. To provide an electronic notarization, the notary public must be physically located within the State of New York at the time of the notarization. The notary must identify the remote signer (also known as the “principal”) of the document through any of the following three methods:
- the notary’s personal knowledge of the signer;
- by means of communication technology that facilitates remote presentation by the signer of an official, acceptable form of ID, credential analysis, and identity proofing; or
- through oath or affirmation of a witness who personally knows the signer, and who is either personally known to the notary or identified by the previously referenced means of communication technology.
Commercial software is available to notaries public to perform identify proofing and credential analysis.
Regardless of the method used to confirm the identity of the signer, for electronic notarizations where the document signer appears remotely, the notary must be able to see and interact, in real-time, with the remote signer of the document through audio-visual communication technology. Regardless of the location of the signer, this technology must have security protocols in place to prevent unauthorized access. The notary must make and keep an audio-visual recording of the electronic notarization and ensure that there is a back-up of the recording. This recording must be kept for a minimum of 10 years.
After the signer has executed the document, it must be transmitted to the notary public for officiating. This is done by presentation to the notary of the executed document through the software platform. The notary must confirm that the document is the same as the one signed electronically in the notary public’s presence before applying the notary stamp and signature to the document. For electronic notarial acts performed remotely, the following statement must be added to the jurat “This electronic notarial act involved a remote online appearance involving the use of communication technology.”
The electronic notarial process does not require transmission of paper records or ink signatures of either the signer (i.e., principal) or electronic notary. The result of the process is an electronically created, electronically stored document that may be done online, and may be papered out for recording or other purposes.
What is “papering out?”
“Papering out” is a process by which the notary who performed an electronic notary service executes a paper certification (a certificate of authenticity) that a tangible copy of the signature page and document type of an electronic record remotely notarized by such notary public is an accurate copy of such electronic record.
What can an electronic notary charge for papering out an electronically created and electronically notarized document?
Two dollars. The definition of a “notarial act” includes preparation of a certificate of authenticity (which is a paper document, not an electronically created document) for any document that has been created through an electronic notarial act.
What is Remote Ink Notarization (aka “RIN”)?
Remote ink notarization is the performance of a notarial act (not an electronic notarial act) using communication technology, where the notary and the signer are in different locations, to generate a paper document. This process involves use of communication technology to verify the identity of the document signer followed by electronic transmission of an ink-signed document to the remotely located notary for application of an ink, or wet signature.
Is Remote Ink Notarization permitted in New York State?
Not after January 31, 2023. During the COVID-19 pandemic, like in many jurisdictions the practice of RIN was authorized by executive order. After the pandemic, RIN was permitted in New York State by temporary statute (Executive Law section 135-c, “Remote ink notarization”) alongside electronic notarization, subject to standards provided in the temporary law. On January 31, 2023, only electronic notarization is permitted in New York State, through repeal of Executive Law § 135-c, Remote ink notarization and replacement with Executive Law § 135-c, Electronic notarization.
Will electronically notarized documents be accepted by a county clerk or other government offices?
Yes, through use of the papering out process. The new law states, in part, “[a] county clerk, city registrar, or other recording officer where applicable shall accept for recording a tangible copy of an electronic record and that is otherwise eligible to be recorded under the laws of this state if the record has been certified by a notary public or other individual authorized to perform a notarial act.” New York Executive Law § 135-c(6)(d)(ii). To be accepted, the notary would first have to certify the electronically notarized document. New York Executive Law § 135-c(6)(d)(i). Specific questions about filing such documents should be directed toward the filing office where the document will be submitted.
What is credential analysis?
Credential analysis is a process where a third-party service validates a government-issued identification presented by an individual through a review of public and proprietary data sources.
What is identity proofing?
Identity proofing is a process or service through which a third party confirms the identity of a signer through review of personal information from public and proprietary data sources.
What is the difference between credential analysis and identify proofing?
Credential analysis validates the authenticity of the principal’s government-issued identification, and identity proofing validates the identity of the individual principal.
Does New York State require platform certification for Electronic Notarization Platform Providers?
NYS does not require platform certification. The model used here requires notaries to select platforms that comply with minimum standards. Notaries should obtain confirmation that any platform used complies with the NYS requirements and the platform provider is required by New York’s General Business Law to comply with those standards if they’re operating in the NY marketplace or if they’re representing to commissioned notaries that such platform complies.
Does the Department of State recommend a particular service provider?
No, the Department does not recommend any particular provider, but the notary must use a provider that meets NYS requirements. If unsure, a notary should contact the service provider and obtain confirmation, from the provider, that their service complies with specific NYS requirements.
Are notaries required to keep a journal?
Yes. Beginning January 25th, 2023, all notaries, including those notaries that only provide traditional in-person services, are required to keep a journal of all notarial acts performed which includes the type of identification provided, for 10 years. Additionally, electronic notaries must maintain a journal of all notarial acts as well as an audio & video record of all electronic notarial acts performed.
What information must be maintained in the journal?
“Traditional” notary journal must include:
(1) the date, approximate time, and type of notarial acts performed
(2) the name and address of any individuals for whom a notarial act was performed
(3) the number and type of notarial services provided
(4) the type of credential used to identify the principal, including, for verification made where a notary relies on the oath or affirmation of two witnesses who identify themselves with a valid government issued ID and who know the document signer personally, the names of the witnesses and, if applicable, the type of credential used; and
(5) the verification procedures used for any personal appearance before the notary public.
“Electronic” notary journal must include:
(1) the date, approximate time, and type of notarial acts performed
(2) the name and address of any individuals for whom a notarial act was performed
(3) the number and type of notarial services provided
(4) the type of credential used to identify the principal, including, for verification made where a notary relies on the oath or affirmation of two witnesses who identify themselves with a valid government issued ID and who know the document signer personally, the names of the witnesses and, if applicable, the type of credential used;
(5) the verification procedures used for any personal appearance before the notary public;
(6) for electronic notarial acts, identification of the communication technology, certification authority, and verification providers used; and
(7) an actual audio/video recording of the act.
Does the law required that the signer physically be within NYS for electronic notarization?
No. The notary must be in NYS but the person using the services can be any place provided that if the person is not in the US, the following additional rule applies:
If the principal is located outside of the United States, the notary must verify, through verbal confirmation made by the signer in the course of the recorded electronic notarial act, that the record or subject of the notarial act:
(1) 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; or
(2) involves property located in the territorial jurisdiction of the United States or involves a transaction substantially connected with the United States;
If an electronic notarization is done remotely, the jurat must expressly state that the person making the acknowledgement or making the oath appeared through use of communication technology.
How much can a notary charge for remote notarization?
An Electronic Notary may charge up to $25.00 per electronic notarial act performed. The fee may be charged for each notarial act performed during one electronic session. A certificate of authenticity for any document that has been created through an electronic notarial act is a notarial act for which $2.00 may be charged.