Current through 2024-38, September 18, 2024
1.
Provider
application for approval of communication technology and identity proofing to
be used in remote notarization
A provider of communication technology to be used for
remote notarization may request approval from the Secretary of State by
submitting an application on a form provided by the Secretary of State that
contains the following information:
A.
A certification that the provider's communication technology is designed to
ensure that remote notarizations using the provider's technology will comply
with the requirements of 4 M.R.S. chapter 39 and this rule;
B. A certification that the provider is
currently registered to do business in Maine and is in good standing with the
Secretary of State;
C. A list of
all jurisdictions in which the provider's communication technology has been
approved for the performance of notarial acts remotely, and the month and year
in which the provider received its most recent approval;
D. Disclosure of any complaints, official
warnings, or disciplinary actions taken against the provider in any
jurisdiction;
E. Any pending,
threatened or adjudicated legal actions against the provider relating in any
way to the performance of notarial acts using the provider's communication
technology in any jurisdiction;
F.
The name and contact information of a representative of the applicant with
knowledge of the provider's communication technology and with authority to make
binding representations; and
G. Any
other information sufficient to demonstrate that the provider's communication
technology and identity proofing methods meet or exceed the criteria and
standards set forth in section 6, subsection 2 of this rule.
H. The provider must submit the application
fee to the Secretary of State, made payable to Treasurer, State of Maine,
prescribed by 5 M.R.S. §86.
2.
Criteria and standards for
communication technology and identity proofing used for remote
notarization
To obtain approval, a provider must demonstrate that the
communication technology to be used for remote notarization in this
state:
A. Restricts access to notarial
officers whose written notice to the Secretary of State of intent to perform
remote notarization has been accepted, in accordance with the requirements of
this rule;
B. Requires a password
or other secure means of authentication to access the provider's
technology;
C. Requires a notarial
officer to present a valid Maine notary public commission or other evidence of
the notarial officer's qualification to perform notarial acts in order to
access or utilize the communication technology to perform remote
notarizations;
D. Includes a method
to ensure that a notarial officer enrolled to use the technology has the
requisite knowledge to use it to perform notarial acts in compliance with 4
M.R.S. chapter 39 and this rule;
E.
Enables a notarial officer to verify the identity of the principal and any
required witness in compliance with 4 M.R.S. chapter 39 and this
rule;
F. For remote notarization of
electronic records, enables a notarial officer to affix their electronic
signature to an electronic notarial certificate in a manner that attributes the
signature to the notarial officer and is tamper-evident;
G. For remote notarization of electronic
records, enables a notarial officer to attach or logically associate a
certificate of notarial act to the electronic record in a tamper-evident
manner;
H. Provides continuous,
synchronous audio-visual feeds that allow the remotely located individual and
the notarial officer to see and speak to one another simultaneously through
live, real time transmission;
I.
Captures images with sufficient resolution to enable analysis of the remote
individual's credentials;
J.
Includes at least two (2) of the following methods of identity proofing:
(1) A credential that is validated by a
government or third party;
(2) A
biometric identifier, including a retina or iris scan, fingerprint, voiceprint,
scan of hand or face geometry, or any other physiological, biological or
behavioral characteristic used to identify an individual;
(3) A public key certificate; or
(4) An identity assessment based on a set of
questions formulated from public or private data sources for which the
principal has not provided a prior answer;
K. For remote notarization of electronic
records, provides a secure method of document upload and transfer;
L. Records the audio-visual communication in
real time and associates that recording with the notarial officer's electronic
record;
M. Provides reasonable
security measures to prevent unauthorized access to:
(1) The live communication between the
notarial officer and the remotely located individual;
(2) The recording of the audio-visual
communication;
(3) The verification
methods and credentials used to verify the identity of the remotely located
individual; and
(4) Electronic
records presented for remote notarization, if applicable;
N. Is capable of securely creating, storing,
accessing and reproducing a copy of an electronic recording of the remote
notarial act. and
O. For remote
notarization of electronic records, provides an electronic verification or
audit trail of the electronically notarized document that is accessible to all
parties involved in a notarial act that is performed remotely.
3.
Approval process for
communication technology providers
The process for review and approval of applications by
communication technology providers is the same as described in section 5,
subsection 3 of this rule for providers of electronic notarization
technology.
4.
Ongoing obligations of communication technology providers
Providers of communication technology for remote
notarization have the same ongoing obligations as those specified in section 5,
subsection 4 of this rule for providers of technology for electronic
notarization.
5.
Denial, non-renewal, suspension, termination or revocation of approval
for a communication technology provider
The filing of complaints, handling of investigations, and
the grounds upon which the Secretary of State may deny, refuse to renew,
suspend, terminate, or revoke approval of a provider of communication
technology for remote notarization in the State are the same as described in
section 5, subsection 5 of this rule for providers of technology for electronic
notarization.
After the Secretary of State's denial, non-renewal,
suspension, termination or revocation of a technology provider's approval, the
provider shall not deny any notarial officer registered with the provider
access to the notarial officer's electronic signature, official seal and
records stored by the technology provider on behalf of the notarial
officer.
6.
Service
of process fee
By making its communication technology or identity proofing
available for use in remote notarization in this State, and by providing
storage for audio-visual recordings of remote notarizations, a technology
provider appoints the Secretary of State as the provider's agent for service of
process in any civil action in this State related to a remote notarization
pursuant to 4 M.R.S. §1915(15). The fee for the Secretary of State to
accept service of process shall be twenty dollars ($20).
7.
Notice by Notarial Officer of intent
to perform remote notarization
A.
Contents of notice. Before performing a remote notarization for
the first time, a notarial officer must submit written notice to the Secretary
of State in a format prescribed by the Secretary of State and must include the
following information:
(1) The name of the
provider(s) of communication technology approved by the Secretary of State that
the notarial officer intends to use for remote notarization;
(2) Certification from the communication
technology provider the notarial officer intends to use, confirming that the
notarial officer has received training on the use of that technology for remote
notarization and has been approved as a user of that technology; and
(3) A declaration by the notarial officer
that the officer has read and understands the requirements of 4 M.R.S. chapter
39 and this rule regarding remote notarization.
If the notice is deemed incomplete by the Secretary of
State, the notarial officer shall be notified of the deficiencies and have the
opportunity to resubmit it. The notice is not valid until it is accepted by the
Secretary of State.
B.
Authority to perform remote
notarization. In addition to submitting written notice to the Secretary
of State in accordance with section 6, subsection 8, paragraph A of this rule
and accepted by the Secretary of State, a notary public applying to perform
remote notarizations must have a valid notary public commission, and an
attorney-at-law must be duly admitted and eligible to practice law in the
courts of this state.
C.
Amending the notice. After submitting written notice under section
6, subsection 8, paragraph A to the Secretary of State, a notarial officer must
amend the notice to include any change in communication technology providers,
including but not limited to identifying any new or additional technology
providers. Such amended notice must be submitted to the Secretary of State
within 10 business days of making the change.
D.
Termination of authority. The
notarial officer's authority to perform remote notarizations automatically
expires upon the occurrence of any of the following:
(1) The notarial officer is a notary public
and the notary public's commission expires, is revoked, suspended or terminated
by the Secretary of State;
(2) The
notarial officer is a notary public and the notary public resigns their
commission;
(3) The notarial
officer is a notary public and the notary public is no longer a Maine resident
and no longer has a place of employment or a business in this State;
(4) The notarial officer is no longer
authorized to perform notarial acts pursuant to 4 M.R.S. §1910;
or
(5) The Secretary of State
revokes or terminates approval of the technology provider whose technology the
notarial officer is using to perform remote notarization unless the notarial
officer is approved to use another technology provider.
E.
Exemptions. The requirements
for remote notarization in this rule do not apply to a judge, justice, clerk or
deputy clerk of any court in Maine who is performing a notarial act for a
remotely located individual in the course of performing exclusively judicial
functions pursuant to statute, or rules or administrative orders adopted by the
Maine Supreme Judicial Court. The requirements for remote notarization in this
rule also do not apply to a court reporter in Maine administering the oath to a
witness in a deposition conducted pursuant to the rules of procedure adopted by
the Maine Supreme Judicial Court or the federal courts.
8.
Requirements for performing remote
notarization
A.
General
procedure. When performing a remote notarization, the notarial officer
must:
(1) Use a device with a camera and
microphone and ensure that the remotely located individual is also using a
device with a camera and microphone so that real-time audiovisual communication
is occurring;
(2) Use only a
communication technology provider and identity proofing method approved by the
Secretary of State and identified in the notice provided by the notarial
officer to the Secretary of State;
(3) Proceed with the remote notarization only
if the notarial officer determines that they have a reliable internet
connection with the remotely located individual to enable the notarial officer
to perform the remote notarization in compliance with 4 M.R.S. Chapter 39 and
these rules;
(4) Recite information
sufficient to identify the notarial officer, the officer's authority to act,
the type of notarial act to be performed, the name of the remotely located
individual for whom the notarial act is being performed, and the date, time,
and location of the notarial act at the commencement of the notarial
proceeding;
(5) Reasonably identify
the remotely located individual by one or more of the following methods:
(a) The notarial officer's personal knowledge
of the remotely located individual through dealings sufficient to provide
reasonable certainty that the individual is the person they claim to
be;
(b) Satisfactory evidence of
the remotely located individual's identity provided by using at least 2
different types of identity proofing as described in this rule; and
(c) By verification on oath or affirmation of
a credible witness appearing before the notarial officer who is known to the
officer or whom the officer can identify using at least 2 different types of
identity proofing as described in this rule;
(6) Cease the remote notarization procedure
and restart it from the beginning if:
(a) the
remotely located individual, any required witness or the notarial officer exits
or disconnects from the communication technology before completion of the
notarial act;
(b) the audio or
visual feed is interrupted or terminated for any reason; or
(c) the notarial officer believes the process
has been compromised and cannot be completed in accordance with applicable
legal requirements;
(7)
Create an audiovisual recording of the remote notarization, including in the
recording the statements required in section 6, subsection 9, paragraph A,
subparagraph 4 of this rule, a statement by the notarial officer explaining the
methods by which the officer has identified the remotely located individual for
whom the notarial act is being performed pursuant to section 6, subsection 9,
paragraph A, subparagraph 5 of this rule, and, with respect to a tangible
record not physically present before the notarial officer, record the
individual signing the record and the written declaration required pursuant to
4 M.R.S. §1915(5);
B.
Acknowledgment of a tangible
record. When a notarial act involves taking an acknowledgment of a
remotely located individual's signature on a tangible record, the notarial
officer must adhere to the following procedures:
(1) If the tangible record is physically
present before the notarial officer, the officer must display the record to the
remotely located individual and have the individual identify the record during
the audiovisual recording;
(2) If
the tangible record is not physically present before the notarial officer, the
remotely located individual must make the declaration described in 4 M.R.S.
§1915(5); and
(3) If the
remotely located individual is located outside the territorial boundaries of
the United States, the record may be acknowledged only if it meets the
requirements of 4 M.R.S. §1915(3)(D).
Any tangible record signed and notarized remotely must
include a statement that the notarial act was performed remotely using
communication technology approved by the Secretary of State.
C.
Administration of an
oath. The notarial officer may administer an oath or affirmation to a
remotely located individual in accordance with 4 M.R.S. §
1915(8).
D.
Retention of
recording. The audiovisual recording of the remote notarization required
under section 6 of this rule must be retained for a period of at least 10
years.
E.
Notarial
certificate for electronic record. If a remote notarization involves an
electronic record, a notarial certificate must be attached to or logically
associated with that electronic record in a tamper-evident manner in accordance
with 4 M.R.S. §1916(6).
F.
Journal required. The notarial officer must record each remote
notarization in the notarial officer's journal, which must be retained under
the notarial officer's sole control. A journal in an electronic format must be
tamper-evident, backed up in a secure manner, and only accessible through the
use of passwords or other secure means of authentication under the control of
the notarial officer.
