Current through Register Vol. 48, No. 38, September 20, 2024
a) Certification
Required to Provide Electronic Notarization Systems. No person or entity may
provide electronic notarization systems under
5 ILCS
312/6A-101 unless certified as a provider by the
Secretary of State. All certified providers must apply for certification on an
annual, calendar-year basis, with applications for recertification due in the
Secretary's office not later than September 1 of each year. Nothing in this
Part is intended to prohibit a governmental entity from developing an internal
electronic notarization system that complies with the requirement in this Part
for certification.
b) Who May
Provide Electronic Notarization Systems. Without regard to the specific
business operations of the provider, all certified system providers under this
Section shall be responsible for ensuring that all of the duties and
responsibilities of the system provider are carried out in accordance with this
Part. System providers may provide these services through their own resources,
through a subsidiary, or through contractual relationships with third
parties.
c) The Secretary of State
shall be solely responsible for certifying providers that apply for
certification with the Secretary. Persons or entities desiring to be certified
as providers may apply for certification at any time. An application for
certification or recertification as a system provider must include the
following information:
1) The legal name of
the provider;
2) The type of
business organization of the provider;
3) The mailing address, physical address,
email address, and website address of the provider;
4) The name and phone number of a contact
person for the provider;
5) If the
applicant is a business entity, proof that the applicant is in good standing
with the Illinois Secretary of State, Business Services Department;
6) An attestation that the technology used by
the applicant is in compliance with the provisions of this Part and Article
VI-A of the Act relating to the performance of electronic notarial acts, with a
copy of all manuals and information guides made available to Illinois
electronic notaries;
7) A
certification that the vendor shall comply with the Illinois Notary Public Act
and this Part regarding retention and storage and the disposition of documents,
the electronic journal, and audio-video recordings if the provider no longer
makes its system available to electronic notaries public for any
reason;
8) Copies of publicly
available policy and procedure manuals and training materials that are used for
training or usage in Illinois;
9)
Proof of liability insurance. The provider must maintain general commercial
liability or product liability insurance with minimum liability limits of $1
million per occurrence and $3 million aggregate total. The Secretary will
accept other commercially acceptable insurance arrangements, in the same
minimum amounts, if the Secretary determines that they provide an equivalent
level of coverage; and
10) A
declaration that the system complies with the laws of the State of Illinois
governing electronic notarial acts.
d) An electronic notarization system provider
may assert a claim that the information provided to the Secretary of State
under subsection (b)(7) by an entity applying for certification with the
Secretary of State is the provider's confidential, proprietary information and
a trade secret of the system provider and is not a public record nor subject to
subsection 7(g) of the Freedom of Information Act [5 ILCS 140
].
e) The Secretary of State will
certify a system if it meets all of the following requirements:
1) Provides secure access to the system by
two-factor verification or another secure means that identifies the electronic
notary public accessing the system;
2) Takes all reasonable steps to ensure that
an electronic notary public using its system is duly commissioned by the
Secretary of State and that the commission is in active status;
3) Provides for uninterrupted, continuous,
and simultaneous audio-video communication between an electronic notary public
and a principal;
4) Provides
audio-video communication with a video resolution and audio quality that
ensures that:
A) An electronic notary public
and a principal can see, hear, and communicate with each other in real time;
and
B) An electronic notary public
can match the appearance of a principal with the credential presented by the
principal;
5) Provides a
secure communication link for audio-video communication that ensures that only
the parties to an electronic notarial act and those persons authorized by each
party to the electronic notarial act are part of the audio-video
communication;
6) For systems
providing an electronic journal of electronic notarial acts, ensures it
complies with the provisions of this Subpart J and
5 ILCS
312/3-107 governing the requirement that an electronic
notary public keep an electronic journal for each electronic notarial
act;
7) Provides for the recording
of an electronic notarial act performed by audio-video communication that
complies with 5 ILCS 312/6A-104 and that is of
sufficient quality to ensure verification of the recorded electronic notarial
act;
8) Enables an electronic
notary public to be satisfied that an electronic document presented for the
performance of an electronic notarial act is the same electronic document on
which the electronic notarial act was performed;
9) Enables an electronic notary public to
affix the wording of a notarial certificate required by
5 ILCS
312/6A-105, as applicable, and the electronic official
notary seal of the electronic notary public required by
5 ILCS
312/3-101;
10) Enables a person viewing an electronic
document on which an electronic notarial act was performed to view the
electronic signature and electronic seal of the electronic notary public who
performed the electronic notarial act;
11) Provides a method for determining whether
an electronic document on which an electronic notarial act was performed has
been altered after the electronic seal of the electronic notary public who
performed the electronic notarial act has been affixed to the electronic
document and the electronic notarial act was completed;
12) Prevents unauthorized access to:
A) An audio-video communication between an
electronic notary public and a principal;
B) The recording of an electronic notarial
act required by 5 ILCS 312/6A-104 for an
electronic notarial act performed using audio-video communication;
C) Any personally identifiable information
used in a credential analysis, identity proofing, or any other part of an
audio-video communication, including without limitation:
i) A method of credential analysis and the
output of that analysis;
ii) Any
credential presented to an electronic notary public;
iii) The questions and answers used to
conduct a dynamic knowledge-based authentication assessment; and
iv) The principal's birthdate, Social
Security number, and other personally identifiable information;
D) The electronic document on
which an electronic notarial act was performed; and
13) Provides a method of generating a paper
copy of the electronic journal or journal entry of an electronic notary public
and an electronic document on which an electronic notarial act was performed,
including, without limitation, the electronic notarial certificate for the
electronic document, the electronic signature and electronic seal of the
electronic notary public who performed the electronic notarial act and any
other document associated with the electronic document.
f) The Secretary will notify the applicant to
be certified or recertified as a system provider in writing whether the
application has been approved or denied. Before denying an application due to
minor typographical or clerical errors, the Secretary will advise the applicant
of the error and give the applicant 10 business days to correct the
error.
g) If an original or amended
application to be certified or recertified as a system provider is denied, the
applicant may not reapply until 12 months after the date of the denial or the
date of the final order of the Secretary upholding the denial if the decision
is reviewed in a formal administrative hearing. Before denying an application
based on errors, the Secretary of State shall advise the applicant of the error
and give the applicant 30 business days to correct the error.
h) In deciding whether to grant or deny an
application, the Secretary of State will take into consideration the
applicant's past performance in Illinois and other jurisdictions, whether the
applicant's license or certification has ever been suspended, revoked, denied,
canceled, or withdrawn, and whether another state has denied the applicant's
application to operate as a provider in that state.
i) An applicant that has been certified under
this Section may at any time submit an amended application seeking
certification to provide systems in addition to the systems previously
certified for use by the applicant.
j) If there is any change after a provider's
certification that affects the ability of an electronic notary public to comply
with this Part when performing an electronic notarial act, the provider must
immediately notify the Secretary of State of the change. Upon receiving notice
of the change, the Secretary of State will determine whether the provider
continues to comply with this Part. If the Secretary of State determines that
the provider no longer complies with this Part, a provider shall not allow the
use of the system to perform an electronic notarial act in this
State.
k) Services That Must Be
Provided. After certification or recertification by the Secretary, providers
shall provide the following services and meet the following requirements:
1) The provider shall only allow the use of
systems that have been authorized in Illinois under this Section;
2) The provider shall provide a toll-free
customer service/question/complaint hotline, online chat feature, or a
dedicated email address that is answered, at a minimum, between 9:00 am and
5:00 pm, Central Time, Monday through Friday;
3) The provider must provide a course of
training and written instructions for electronic notaries on operation,
maintenance, and safeguards against improper operations for use of the system
and, if providing electronic journal capability, instruct the electronic notary
on maintaining the required journal of notarial acts performed on the system
(see Subpart J). The provider must give the Secretary of State copies of all
materials used in the course of this training and available to Illinois
electronic notaries;
4) Upon an
inquiry from the Secretary of State, providers must verify to the Secretary of
State within 7 days whether an Illinois electronic notary has been enrolled in
the system and provide the Secretary, upon request, with additional reports
including but not limited to records of usage in Illinois;
5) The provider must notify the Secretary of
State in writing within 10 business days if the provider or the manufacturer
becomes unable to provide systems in Illinois or if the provider has been
suspended or decertified in any other jurisdiction;
6) The Secretary of State may designate the
form, format, and method of delivery (e.g., facsimile, electronic transfer,
etc.), for any reports, information, or data required to be filed with the
Secretary under this Section, including but not limited to, noncompliance
report forms, tampering, or certifications;
7) Upon an allegation that the system
provider failed to comply with a material provision of this Part, the Director
of Index will notify the system provider, in writing, of the allegations.
Within 30 days after receiving the written notice from the Director, the
provider must respond to the allegations in writing, and provide an explanation
of any corrective action taken. If the provider fails to correct any
noncompliance found, the Secretary will deny, suspend, or revoke the
certification. This penalty will be in addition to any private causes of action
that may exist for an electronic notary that has been aggrieved by the
noncompliance of the provider;
8)
Upon the request of the Secretary of State, the provider shall, at no cost to
the Secretary of State, provide the Secretary with an online demonstration and
allow the Secretary of State to ask any relevant questions. The system provider
shall also provide to the Secretary a publicly available, detailed description
of the system, including complete instructions for operation provided to
notaries public.
9) Providers must
maintain records related to enrolled electronic notaries for 7 years after the
electronic notary disenrolls from the system.
l) Criteria for Certification of Systems.
Only systems that have been certified for use in Illinois under this Section
may be used by Illinois electronic notaries. Certification of a system will be
based on whether the system complies with any nationally recognized standards
and this Part.
m) Decertification
or Suspension of Providers. The Secretary of State may suspend or decertify a
provider from providing electronic notarization systems in Illinois. The
Secretary shall provide a written warning, and 30 days to come into compliance,
to a provider regarding any violation of this Section that may lead to
suspension or decertification. The provider shall respond in writing to the
Secretary describing the course of corrective action. If the Director of the
Index Department determines that the course of corrective action does not bring
the system provider into full compliance with the Act and this Part, or there
are recurring instances of the violations, the Secretary may decertify the
provider from providing systems in Illinois or suspend the provider from
allowing any new enrollments for 3 months. The following are considered actions
warranting decertification or suspension:
1)
Failure to provide information, as requested, to the Secretary of State in a
timely manner;
2) Failure to
maintain liability insurance as required;
3) Failure to comply with the duties and
obligations contained in this Part;
4) Failure to provide Illinois electronic
notaries with correct information regarding the requirements of this
Section;
5) Failure to report
enrollments and disenrollments to the Secretary within 7 days after the
enrollment or disenrollment;
6)
Failure to inform the Secretary of suspension or decertification from service
in another jurisdiction within 30 days;
7) Giving any instruction, codes, procedures,
technological information, or advice to a notary that results in or could
result in the system being circumvented by a user or third party;
8) Allowing enrollment by a person that is
not commissioned as an electronic notary in Illinois;
9) Failure to meet any of the requirements of
the Act or this Subpart; and
10)
Solicitation of an Illinois electronic notary for any service or product other
than the system that has been certified.
n) Notification of Decertification or
Decision Not to Recertify. When the Secretary decides not to recertify or to
decertify a provider or a provider ceases to operate, the Secretary will notify
all affected electronic notaries public in writing. The notifications shall be
sent not less than 30 days after the decision or, if the provider requests a
formal administrative hearing within that 30-day period to review the decision,
notification will not be sent until the entry of a final order of the hearing
officer upholding the decision.
o)
Applicants Who Are Denied. Applicants whose applications for certification or
recertification have been denied and providers that have been suspended or
decertified may request an administrative hearing under Subpart K. Decisions
not to recertify or to suspend or decertify will not be carried out until at
least 30 days after the notice of the decision has been sent to the applicant
or provider or, if the applicant or provider requests a hearing within that
30-day period, until the entry of a final order of the hearing officer
upholding that decision. The hearings held under this Part shall be conducted
in accordance with all the rights, privileges, and procedures set forth in
Subpart K. A request for a hearing to contest a decision to deny certification
or recertification or to decertify must be made in writing and must be sent to
the Office of the Secretary of State, Department of Administrative Hearings,
Michael J. Howlett Building, Room 207, Springfield, Illinois 62756, (217)
524-0124.
p) Solicitation by
Provider. Any solicitation sent from a provider to a potential user must
conspicuously and in bold font include the following statements: "(name of
provider) is a privately owned entity and is not owned, operated, or endorsed
by the Illinois Secretary of State or any other Illinois government agency" and
"(name of provider) is not the sole provider authorized by the Secretary of
State". The solicitation or any correspondence from the provider may not be
attached to or have the appearance of any official correspondence sent by the
Illinois Secretary of State, may not state or otherwise indicate that the
provider is the sole or only provider in Illinois. A system provider may not
use any personal information (including the name, address, telephone number, or
email address) provided by a notary to solicit the notary for any service or
product other than the certified electronic notarization system.
q) Publication of Provider Lists. A list of
certified electronic notarization system providers, in no particular order,
will be published on the Illinois Secretary of State's website (https://www.ilsos.gov/departments/index/notary/home.html)
upon certification.
