Nebraska Enacts Provisions Regarding Online Notary Public Act
The state of Nebraska enacted provisions relating to its Online Notary Public Act that include remote presentation. These provisions are effective immediately and become operative on July 1, 2020.
The amendment lays down the requirements needed to register as an online notary public, which include:
(a) holding a valid a valid commission as a notary public in the State of Nebraska;
(b) satisfying the education requirement provided for under the Act; and
(c) paying the fee provided for under the Act.
In order to fulfill the educational requirement mentioned above, a notary public must take a course of instruction and pass an examination approved by the Secretary of State. The Secretary of State is mandated with approving the course of instruction and examination by July 31, 2020. The content of the course and the basis for the examination must include notarial laws, procedures, technology, and the ethics of performing online notarial acts.
The amendment stipulates that the fee for registering or renewing a registration as an online notary public shall be an addition to the fee required in section 33-102 of the Act. The Secretary of State is required under the amendment to establish the fee by rule and regulation in an amount sufficient to cover the costs of administering the Online Notary Public Act: however, the fee shall not exceed fifty dollars. The Secretary of State is also required to remit fees received under this section to the State Treasurer for credit to the Administration Cash Fund for use in administering the Online Notary Public Act.
The amendment requires a notary public to register with the Secretary of State in a manner prescribed by the Secretary of State before performing an online notarial act. The amendment further states that “in addition to any additional information prescribed by the Secretary of State, the registration shall include:
(a) the technology the notary public intends to use to perform an online notarial act. Such technology shall be provided by an online notary solution provider approved by the Secretary of State;
(b) a certification by the notary that he or she will comply with the standards developed by the Secretary of State under section 7 of the act; and
(c) an email address for the notary.”
The amendment states that any change in the technology the online notary public intends to use to perform notarial acts should be specified in an application to renew registration as an online notary public. The amendment also allows a registered online notary public to renew his or her online notary public registration at the same time he or she renews his or her notary public commission.
Section 7 of the amendment authorizes the Secretary of State to adopt and promulgate rules and regulations that would create standards for online notarial acts in accordance with the Online Notary Public Act, including standards for credential analysis, identity proofing, and communication technology used for online notarial acts. The rules and regulations promulgated by the Secretary of State would also be used ensure the integrity, security, and authenticity of online notarial acts in accordance with the Online Notary Public Act.
The amendment allows the online notary public to perform acknowledgments, jurats, verifications or proofs, and oaths or affirmations as online notarial acts. An online notary public is required to keep a secure electronic record of electronic documents notarized by the online notary public. The amendment also provides for the contents of an electronic record.
The amendment requires the notary public to take reasonable steps to ensure the integrity, security, and authenticity of online notarial acts; maintain a backup for the secure electronic record; and to protect the secure electronic record and backup record from unauthorized use.
The amendment states that an online notary public’s electronic signature and seal should only be used for the purpose of performing online notarial acts and the online notary public must take reasonable steps to ensure that any registered device used to create an electronic signature is current and has not been revoked or terminated by the device’s issuing or registering authority.
The online notary public’s electronic signature, online notary seal, and the electronic record and backup record should be kept secure and under exclusive control by the online notary public. The amendment requires the online notary to immediately notify an appropriate law enforcement agency and the Secretary of State of the theft or vandalism of the online notary public’s electronic signature, online notary seal, or the electronic record or backup record.
The online notary has authority to perform an online notarial act regardless of whether the principal is physically located in this state at the time of the online notarial act. In doing this, the online notary must verify the identity of an individual creating an electronic signature. An online notary should attach his or her electronic signature and online notary seal to the online notarial certificate of an electronic document in a manner that is capable of independent verification and that renders evident any subsequent change or modification to the electronic document.
The amendment provides that where the registration of an online notary public expires or is resigned, canceled, or revoked or when an online notary public dies, he or she or his or her duly authorized representative must erase, delete, or destroy the coding, disk, certificate, card, software, file, password, or program that enables the electronic affixation of the online notary public’s official electronic signature and online notary seal.
The amendment makes it criminal for a person without authorization to knowingly obtain, conceal, damage, or destroy the coding, disk, certificate, card, software, file, password, program, or hardware enabling an online notary public to affix an official electronic signature or online notary seal. Section 16 of the amendment provides that a person who violates the Online Notary Public Act may have his or her registration removed under the removal procedures provided in section 64-113.
The amendment provides that “the electronic evidence of the authenticity of the electronic signature and online notary seal if required, shall be attached to, or logically associated with, a document with an online notary public’s electronic signature transmitted to another state or nation and shall be in the form of an electronic certificate of authority signed by the Secretary of State in conformance with any current and pertinent international treaties, agreements, and conventions subscribed to by the United States Government.”
The amendment also specifies that a notary public is not required to register as an online notary public if he or she does not perform online notarial acts.
Rhona Kyeyune, LLM, is a regulatory compliance consultant with CLA. She is a graduate of Makerere University and earned her master of laws at Boston University School of Law.
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