Section 1360-07-03-.03 - PERFORMANCE OF NOTARIAL ACTS(1) An online notary public may perform authorized online notarial acts relating to electronic documents only if the principal personally appears before the online notary public at the time of the notarization; however, such personal appearance may be by means of an electronic two-way audio and video communication.(2) An online notary public may perform authorized notarial acts by means of an electronic interactive two-way audio and video communication only when the online notary public is physically located within this state, without regard to whether the principal is physically located in this state at the time of the online notarization.(3) An online notary public shall require the principal to demonstrate, to the satisfaction of the online notary public, that such person is not under duress and is not otherwise being coerced to complete the transaction, in order to preserve the integrity, security, and authenticity of online notarizations. An online notary public is authorized to refuse to perform a notarial act when the online notary public has reasonable grounds to believe that the principal is acting under coercion or undue influence.(4) An online notary public must verify the identity of a principal at the time that the signature is taken by means of two-way video and audio conference technology. Identity may be verified by the online notary public's personal knowledge of the principal, or by: (a) Remote presentation by the principal of a non-military, government-issued credential, which is an identification card or other document issued by the United States government, any state government, or a passport issued by a foreign government that has been stamped by the United States immigration and naturalization service, and which is unexpired, contains the signature and a photograph of the principal, and which is capable of credential analysis in accordance with Rule 1360-07-03-.05.(b) Credential analysis of the credential provided by the principal as set forth in Rule 1360-07-03-.05; and(c) Identity proofing of the principal as set forth in Rule 1360-07-03-.05.(5) Under no circumstances shall an online notary public base identification merely on familiarity with a principal's electronic signature or an electronic verification process that authenticates the principal's electronic signature when the principal does not personally appear before the online notary public.(6) The online notary public shall refuse to complete the performance of a notarial act where: (a) The online notary public has reasonable grounds to believe that the principal is acting under coercion or undue influence;(b) The online notary public is unable to verify the identity of the principal using the means and the standards identified in these rules;(c) The online notary public becomes aware that the security of the two-way audio-visual transmission is not secure;(d) The signature of the principal cannot be attached to the electronic document; or(e) The online notary public's electronic notarial certificate and seal cannot be attached to the electronic document using an electronic technology which renders any subsequent change or modification to the document evident.(7) The online notary public shall complete and attach an electronic notarial certificate to all written notarial acts that identifies the principal, the date of notarization, the state and county in which the notarization was performed, that the notarial act was an online notarization, and the type of notarial act performed. The electronic notarial certificate shall be signed by affixing or logically associating the online notary public's electronic notarial certificate, electronic signature, and electronic seal in a manner that is capable of independent verification and renders any subsequent change or modification to the electronic document evident.(8) An online notary public performing authorized notarial acts must also satisfy the following requirements. An online notary public, or his or her properly designated custodian or repository, must keep, for at least 5 years after the date of the transaction or proceeding, a secure electronic record of all electronic documents notarized by the online notary public, containing all of the following information:
(a) The date and time of the notarization;(b) The type of notarial act;(c) The type, the title, or a description of the electronic document or proceeding;(d) The printed name and address of each principal involved in the transaction or proceeding;(e) Evidence of the identity of each principal involved in the transaction or proceeding in the form of:1. A statement that the principal(s) is personally known to the online notary public; or both2. A notation of the type of identification document provided to the online notary public for each principal; and3. A notation that the principal(s) completed identity proofing and credential analysis procedures described by Rule 1360-07-03-.05 and both were satisfactory to verify the identity of the principal(s);(f) A recording of any video and audio conference that is the basis for satisfactory evidence of identity and a notation of the type of identification presented as evidence; and(g) The fee, if any, charged for the notarization.(9) The online notary public must take reasonable steps to ensure that the two-way video and audio communication used is encrypted during transmission, through means such as a virtual private network (VPN), and secure from unauthorized interception.(10) The online notary public shall not disclose any access information used to affix the online notary public's electronic notarial certificate, signature, and seal, except when requested by the Secretary of State, law enforcement, the courts, or pursuant to an agreement between the online notary public and an electronic documentation preparation and transmission vendor, which agreement shall have in place reasonable precautions to prevent the unauthorized release of access information.(11) The online notary public should ensure that all records relating to any individual transaction are securely stored using the Advanced Encryption Standard (AES) as a minimum encryption standard and that the principal's personally identifying information or any government-issued identification numbers cannot be accessed by unauthorized individuals. The online notary public should refrain from recording, or take steps to obscure from the recording, any identification number that was assigned to the principal by a governmental agency or by the United States and any other number(s) that could be used to identify the principal.(12) Records of an online notarization shall be retained, in a safe and secure manner, for five years following the date of the notarization. An online notary public must also maintain a backup of the electronic records for the same period of time. Both the original records and the backup shall be protected from unauthorized use. An online notary public may elect to store such recordings with a custodian or repository and such recordings may be stored separately from the journal as long as the corresponding journal entry cross-references the place of storage and describes the manner in which the record is stored.(13) An online notary public may use his or her electronic signature only for preforming online notarizations. The online notary public may certify that a tangible copy of an electronic record is an accurate copy of the electronic record by also affixing his or her signature and seal to the copy of the electronic record in the traditional manner or other manner authorized by law, but only where the online notary public is capable of independently verifying the document is a true and correct copy of the electronic record consistent with the requirements of T.C.A. § 66-24-101(d).Tenn. Comp. R. & Regs. 1360-07-03-.03
Emergency rules filed April 15, 2019; effective through October 12, 2019. Emergency rules expired effective October 13, 2019, and the chapter reverted to its previous status. Original rules filed October 9, 2019; effective 1/7/2020.Authority: T.C.A. §§ 8-16-301, et seq. (Public Chapter 931, effective April 18, 2018).