During the past five years, over 30 states have enacted remote notarization laws for the first time. To our knowledge, Florida is the first state to amend its remote notarization laws following enactment. House Bill 121, which takes effect January 1, 2022, makes several significant changes. First, it no longer allows a Notary to delegate the responsibility of maintaining audio-visual recordings of online notarizations, but now puts that responsibility on the remote online notarization system providers. Once delegated, the repository then must assume all the responsibilities of providing access to and copies of these recordings.

FL House Bill 121

Legislation

State: Florida
Signed: June 21, 2021

Effective: January 01, 2022
Chapter: 2021-137

Summary
House Bill 121 is the first state bill to amend remote notarization provisions it enacted in statute. HB 121 adds new rules for recordings of remote notarizations and privacy.

Affects
Amends Sections 117.021, 117.05, 117.201, 117.225, 117.245, 117.255, 117.265, 117.275, and 117.295 of and adds Section 117.231 to the Florida Statutes.

Changes

1. Online Notary Registration
   1. Clarifies that to register to perform online notarizations, a Notary, civil law Notary, or commissioner of deeds must submit their commission or appointment number with his or her registration and not a copy of the commission or appointment as before.
   2. No longer requires an applicant for registration as an online Notary to confirm to the Department of State that the applicant’s chosen remote online notarization service provider satisfies the requirements of Florida’s online notarization laws.
2. Electronic Notarial Acts
   1. Requires a Notary Public performing a notarial act with respect to an electronic record to select the technology and provider to be used for the notarial act.
   2. Clarifies a person may not require the Notary to use a particular technology for notarizing an electronic record.
   3. Clarifies that if the Notary Public is required by his or her contract or employer to perform notarial acts with respect to electronic records, the contract or employer may require the use of a particular technology and provider for those notarial acts.
3. Online Notarial Acts
   1. Clarifies for an online notarization of a principal not located within the United States, a passport issued by a foreign government that does not include the stamp of the United States Bureau of Citizenship and Immigration Services may be used as a government-issued identification credential to verify the principal’s identity.
   2. Authorizes a Notary to take the oath of an individual testifying at any court proceeding, deposition, arbitration, or public hearing, or swearing an oath of admission to the Florida Bar by audio-video communication.
   3. Clarifies that if an individual for whom an oath is to be administered remotely is outside of Florida, the individual’s consent must be obtained before the Notary administers the oath by audio-video communication.
   4. Clarifies that a Notary who takes an oath of a person as described in #2 above is not required to be an online Notary or use a remote online notarization service provider.
   5. Clarifies that in keeping an electronic journal of online notarizations, an online Notary must note in the journal the type of notarial act performed, whether an oath or an acknowledgment.
   6. Provides that an online Notary shall select the remote online notarization service provider to be used to perform an online notarization, and a person may not require the online Notary to use a particular remote online notarization service provider.
   7. Clarifies that if the online Notary Public is required by his or her contract or employer to perform online notarizations, the contract employer may require the use of a particular remote online notarization service provider for those online notarizations.
   8. Requires an online Notary to notify the Department of State of the effective date of a change in remote online notarization providers within 30 days after the change.
4. Recordings of Remote Notarial Acts
   1. Clarifies that the remote online notarization service provider and not the online Notary as before shall retain an uninterrupted and unedited copy of the recording of the audio-video communication in which an online notarization is performed but requires the Notary to ensure the recording has all of the elements, as specified.
   2. No longer allows the online Notary, a guardian of an incapacitated online Notary, or the personal representative of a deceased online Notary Public, by contract with a secure repository in accordance with any rules established under F.S. Chapter 117 to delegate the required recordings of audio-video communications.
   3. Requires an online Notary, a guardian of an incapacitated online Notary Public, or the personal representative of a deceased online Notary Public who by contract delegates the Notary’s duty to retain the electronic journal to notify the Department of State of the effective date of the delegation.
   4. Clarifies that an online Notary must ensure that the recording of an online notarization includes  (a) appearance by the principal and any witness before the online Notary, (b) confirmation of the identity of the principal and any witness, (c) a general description or identification of the records to be signed, (d) at the commencement of the recording, recitation by the online Notary of information sufficient to identify the notarial act, (e) a declaration by the principal that his or her signature on the record is knowingly and voluntarily made, and (f) all of the actions and spoken words of the principal, Notary, and any required witness during the entire online notarization, including the signing of any records before the online Notary.
   5. Authorizes a remote online notarization service provider, by contract, to delegate the duty to retain required recordings of audio-video communications to a secure repository in accordance with rules established under F.S. Chapter 117 provided the Department of State is notified of the delegation of retention duties within 30 days thereafter, including the effective date of the delegation and the address and contact for the repository.
   6. Clarifies that during any delegation of audio-video communications, the secure repository must fulfill the responsibilities of the online Notary or remote online notarization service provider to provide copies or access under F.S. 117.255(2) and (3).
   7. Clarifies that if the recording of the audio-video communication required relating to the online notarization of the execution of an electronic will cannot be produced by the remote online notarization service provider, the online Notary Public, or the qualified custodian, the electronic will shall be treated as a lost or destroyed will subject to F.S. 733.207.
5. Copies of Electronic Journal Entries and Recordings
   1. Clarifies that an online Notary Public shall provide electronic copies of pertinent entries in the electronic journal, and a remote online notarization service provider shall provide access to the related audio-video communication recordings, or a copy the recordings, to the following persons upon request: (a) the parties to an electronic record notarized by the online Notary; (b) the qualified custodian of an electronic will notarized by the online Notary; (c) the title agent, settlement agent, or title insurer who insured the electronic record or engaged the online Notary with regard to a real estate transaction; (d) any person who is asked to accept a power of attorney that was notarized by the online Notary (e) the Department of State pursuant to a Notary misconduct investigation; (f) any other persons pursuant to a subpoena, court order, law enforcement investigation, or other lawful inspection demand; (g) with respect to audio-video communication recordings of an online notarization, the online Notary performing that notarization; and (h) with respect to electronic copies of pertinent entries in the electronic journal, the remote online notarization service provider used for the online notarizations associated with those entries.
   2. Clarifies that an online Notary may charge a fee not to exceed $20 per transaction record for making and delivering electronic copies of a given series of related electronic records, and a remote online notarization service provider may charge a fee not to exceed $20 for providing access to, or a copy of, the related audio-video communication recordings, except if the copies or access is requested by any of the following within the 10-year period specified in F.S. 117.245(4): (a) a party to the electronic record; (b) in a real estate transaction, the title agent, settlement agent, or title insurer who insured the electronic record or engaged the online Notary with regard to such transaction; (c) the Department of State pursuant to an investigation relating to the official misconduct of an online Notary; (d) the qualified custodian of an electronic will notarized by the online Notary: (e) with respect to audio-video communication recordings of a online notarization, the online Notary performing that notarization; or (f) with respect to electronic copies of a given series of related electronic records, the remote online notarization service provider used for the online notarization of those records.
   3. Provides that if an online Notary or remote online notarization service provider charges a fee, the online Notary or the service provider must disclose the amount of fee to the requester before making the electronic copies or providing access to, or making a copy of, the requested audio-video communication recordings.
6. Privacy
   1. Prohibits a remote online notarization service provider from using, selling, or offering to sell or transfer to another person for use or sale any personal information obtained under Florida’s online Notary statutes which identifies a principal, a witness, or a person named in a record presented for online notarization, except: (a) as necessary to facilitate performance of a notarial act; (b) to administer or process a record provided by or on behalf of a principal or the transaction of which the record is a part; (c) to detect fraud, identity theft, or other criminal activities; (d) in accordance with Florida’s online Notary statutes and the rules adopted pursuant these statutes or any other applicable federal, state, or local law, or to comply with a lawful subpoena or court order or a lawful request from a law enforcement or regulatory agency; or (e) to monitory and improve the audio-video communication technology and related processes, services, software, data storage, or other services offered by the remote online service provider to online Notaries for the purpose of directly facilitating their performance of online notarizations, or (f) in connection with a proposed or actual sale, merger, transfer, or exchange of all or a portion of a business or operating unit of the remote online notarization service provider, or the dissolution, insolvency, or cessation of operations of a business or operating unit, if limited to the personal information held by that business or unit and any transferee agrees to comply with the restrictions set forth F.S. 117.295(f).
7. Other Changes
   1. Clarifies that the fee of a Notary Public may not exceed $10 per notarial act for a paper-based notarial act or an electronic notarial act performed in the physical presence of the Notary, except as provided in F.S. 117.045 (marriages) or 117.275 (online notarizations).
   2. Clarifies that fees for services other than notarial acts, including any fees charged by a remote online notarization service provider, are not governed by F.S. 117.275, and such services are not considered closing services, as defined in F.S. 627.7711, and a fee for those services may be separately charged.
   3. Requires the Department of State to publish on its website a list containing each online Notary, the online Notary’s remote online notarization service providers from January 1, 2022, and thereafter, and the effective dates during which the online Notary used each remote online notarization service provider, as identified pursuant to F.S. 117.225(5) and 117.265(5)(b), any secure repositories the online Notary may have delegated his or her duties with respect to the electronic journal pursuant to F.S. 117.245(4) from January 1, 2022, and thereafter, and the effective dates of the delegation.
   4. Requires a remote online notarization service provider to file a self-certification with the Department of State, on a form adopted by rule, confirming that its audio-video communication technology and related processes, services, software, data storage, or other services provided to online Notaries for the purpose of directly facilitating their performance of online notarizations satisfy the requirements of F.S. Chapter 117 and any rules adopted by the Department of State.
   5. Clarifies that each remote notarization provider self-certification remains active for a period of 1 year from the date of filing.
   6. Requires the Department of State to publish on its website a list of all remote online notarization service providers that have filed a self-certification, the date of filing, any secure repositories to which the remote online notarization service provider may have delegated its duties with respect to the audio-video communications pursuant to F.S. 117.245(4) from January 1, 2022, and thereafter, and the effective dates of the delegation.
   7. Makes technical changes.

Analysis

During the past five years, over 30 states have enacted remote notarization laws for the first time. To our knowledge, Florida is the first state to amend its remote notarization laws following enactment. House Bill 121, which takes effect January 1, 2022, makes several significant changes. First, it no longer allows a Notary to delegate the responsibility of maintaining audio-visual recordings of online notarizations, but now puts that responsibility on the remote online notarization system providers. Once delegated, the repository then must assume all the responsibilities of providing access to and copies of these recordings. This new provision drives a wedge between Notary journal entries, which the Notary controls, and recordings for online notarizations, which the Notary does not control. We do not welcome this as a positive change. We would have preferred the Notary being allowed to delegate the responsibility for maintaining the recordings as under existing law and then continuing to exercise control over satisfying requests for access to and copies of the recordings. Recordings of online notarizations are no less notarial records than are journal entries, and the Notary should control both. The second major change is the addition of a lengthy privacy provision that governs remote online notarization service providers. Florida follows Iowa and Colorado in addressing the privacy of data collected from a remote notarization but Florida’s provision contains more exceptions to the general privacy rule. The third substantive change is that Notaries (not online Notaries) are authorized to administer oaths for various proceedings using audio-visual communication without having to register to be an online Notary.

Read House Bill 121.