New Ohio Law Allows Remote Online Notarization

Business Litigation Update

Date: April 16, 2019

Key Notes:

  • Individuals will be able to apply to the secretary of state to become online notaries.
  • Online notaries will be able to perform remote online notarizations for individuals in the United States (and outside the United States in specific circumstances) through the use of approved technology.
  • Traditional notaries may obtain an electronic seal and electronic signature for purposes of notarizing electronic documents that are signed in the notary’s physical presence.
  • Electronically notarized documents will be considered original documents.

Ohio has joined a host of other states (including Indiana, Michigan, Minnesota, Tennessee, Vermont, Utah, Kentucky, Idaho, South Dakota and North Dakota) in passing legislation to allow for electronic and remote online notarization (RON). The Notary Public Modernization Act, effective September 20, 2019, which, in addition to creating uniform requirements for individuals seeking to become commissioned notaries, will allow a properly licensed online notary to use live two-way audio-video conference technology to verify an individual’s identity and perform RON (but not of depositions).

Proposed Administrative Rules

On April 16, 2019, the Ohio secretary of state published the proposed administrative rules (Proposed Rules) addressing application requirements, electronic notarization, technology requirements for online notarization, requirements for maintenance of electronic journals of online notarizations, and the fees that can be charged.

Application Requirements

If adopted, the Proposed Rules would require an application to become an online notary to include the applicant’s name and official notary public name, a description of the technology to be used and how the technology meets the secretary’s requirements (discussed below), a certification that the applicant will comply with the Revised Code, an email address, any decrypting instructions or codes necessary to enable the application to be read, evidence of successful completion of at least four hours of education and testing provided by the authorized education and testing provider, a disclosure of any license or commission revocations or other professional disciplinary actions against the applicant, and a fee of $20.

Electronic Notarization

In addition to allowing for online notarization, the Proposed Rules would allow a traditional notary to obtain an electronic seal and electronic signature for the purposes of notarizing electronic documents that are signed in the physical presence of the notary.

Technology Requirements for Online Notarization

The Proposed Rules would require an online notary to be in Ohio when the notarization occurs, but the signer can be located anywhere in the United States (and outside the United States in very limited circumstances). The Proposed Rules require the online notary to use a system that has two-way live audio-video conference technology, which must:

  • Allow the online notary to identify the signer (either by personal knowledge or by other means described in the Proposed Rules);
  • Allow those communicating to simultaneously see and speak to one another;
  • Have a signal transmission that is live, real-time (which is defined as “the actual span of uninterrupted, simultaneous communication during which all parts of an online notarial act using audio-video communication occur”) and which is secure from interception or access;
  • Provide sufficient audio clarity and video resolution to enable the notary to communicate with the signer and use permissible signer identification methods;
  • Provide confirmation that the electronic document presented is the same as the one being notarized;
  • Allow for the affixation (and viewing) of the notarial certificate, signature and seal;
  • Provide a method for determining if the electronic document has been altered after the notarial seal was affixed and the notarial act completed; and
  • Provide a method of generating a paper copy of the document.
Requirements for Electronic Journals

Online notaries will be required to maintain electronic journals with details of all online notarizations in chronological order and to deposit those journals with the secretary or an approved repository on the expiration of the online notary’s authorization.

The Proposed Rules would require any system used to store the electronic journals to:

  • Allow the entries to be made, viewed, printed and copied by an online notary only after access is obtained by at least one factor of authentication such as a password, biometric verification, token or other form of authentication;
  • Have a backup system in place to provide a duplicate in the event of a loss of the original record;
  • Not allow an entry to be deleted or altered after a record of the electronic notarization is entered and stored; and
  • Allow the online notary sole control of the journal and the record of electronic notarial acts subject to the authorized access granted by the notary.
Fees

Pursuant to the Proposed Rules, a notary may charge up to $5 per document for traditional notarization, up to $10 per document for electronic notarization, up to $25 for online notarization, and reasonable travel fees as agreed to by the notary and the signer prior to notarization.

The new law provides that an electronically notarized document shall be considered an original document. Additionally, county auditors, engineers and recorders are required to accept a printed document that was notarized electronically for purposes of approval, transfer and recording if the document contains the required notarial certificate.

Next Steps

The secretary will accept public comment on the Proposed Rules until
May 15, 2019.

FOR MORE INFORMATION

For more information, please contact:

Jessica E. Salisbury-Copper
937.443.6854
Jessica.Salisbury-Copper@ThompsonHine.com

Kelsey J. Mullen
614.469.3293
Kelsey.Mullen@ThompsonHine.com

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