(A85, R104, S631)
AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, TO ENACT THE "SOUTH CAROLINA ELECTRONIC NOTARY PUBLIC ACT" BY ADDING CHAPTER 2 TO TITLE 26 SO AS TO DEFINE NECESSARY TERMS; TO PROVIDE PROCEDURES AND TRAINING REQUIREMENTS TO BECOME AN ELECTRONIC NOTARY; TO PROVIDE FOR ACTS THAT MAY BE PERFORMED ELECTRONICALLY; TO PROVIDE RESTRICTIONS FOR THE PERFORMANCE OF ELECTRONIC NOTARIZATION; TO PROVIDE THE REQUIREMENTS TO COMPLETE AN ELECTRONIC NOTARIZATION; TO ESTABLISH MAXIMUM FEES; TO LIMIT THE USE OF THE ELECTRONIC SIGNATURE AND SEAL TO PROPER ELECTRONIC NOTARIAL ACTS; TO REQUIRE THE MAINTENANCE OF AN ELECTRONIC JOURNAL FOR ELECTRONIC NOTARIAL ACTS; TO REQUIRE THE SAFEKEEPING OF AN ELECTRONIC JOURNAL, PUBLIC KEY CERTIFICATE, AND ELECTRONIC SEAL; TO ALLOW THE SECRETARY OF STATE TO PROMULGATE RULES AND REGULATIONS; TO REQUIRE REGISTRATION WITH THE SECRETARY OF STATE; TO REQUIRE AN ELECTRONIC NOTARY TO UTILIZE CURRENT REGISTERED DEVICES; TO PROVIDE FOR THE TERMINATION OF ELECTRONIC NOTARIES PUBLIC; TO PROVIDE PENALTIES; TO APPLY REQUIREMENTS OF NOTARIAL CERTIFICATES TO ELECTRONIC NOTARIES PUBLIC; TO REQUIRE EVIDENCE OF AUTHENTICITY; AND TO PROVIDE LANGUAGE FOR AN ELECTRONIC CERTIFICATE OF AUTHORITY; AND TO AMEND SECTION 26-1-160, RELATING TO UNLAWFUL ACTS, SO AS TO ALLOW THE SECRETARY OF STATE TO TERMINATE A NOTARY PUBLIC'S COMMISSION.
Be it enacted by the General Assembly of the State of South Carolina:
Citation
SECTION 1. This act must be known and may be cited as the "South Carolina Electronic Notary Public Act".
South Carolina Electronic Notary Public Act
SECTION 2. Title 26 of the 1976 Code is amended by adding:
Section 26-2-5. For the purposes of this chapter:
(1) 'Capable of independent verification' means that any interested person may confirm through the Secretary of State that an electronic notary public who signed an electronic record in an official capacity had the authority at that time to perform electronic notarial acts.
(2) 'Electronic' means relating to technology and having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(3) 'Electronic document' or 'electronic record' means information that is created, generated, sent, communicated, received, or stored by electronic means.
(4) 'Electronic journal of notarial acts' or 'electronic journal' means a chronological electronic record of notarizations that is maintained by the electronic notary public who performed the notarizations.
(5) 'Electronic notarial act' or 'electronic notarization' means an official act by an electronic notary public that involves electronic documents.
(6) 'Electronic notarial certificate' means the part of, or attachment to, an electronic record that is completed by the electronic notary public, that bears the electronic notary's electronic signature and electronic seal, and that states the facts attested to by the electronic notary in an electronic notarization.
(7) 'Electronic notarization system' means a set of applications, programs, hardware, software, or technologies designed to enable an electronic notary public to perform electronic notarizations.
(8) 'Electronic notary public' or 'electronic notary' means a notary public who has registered with the Secretary of State to perform electronic notarial acts in conformance with this chapter.
(9) 'Electronic notary seal' or 'electronic seal' means information within a notarized electronic document that includes the electronic notary's name, jurisdiction, registration number, and commission expiration date and that generally corresponds to data in notary seals used on paper documents.
(10) 'Electronic signature' means an electronic symbol or process attached to or logically associated with an electronic document that is executed or adopted by an individual with the intent to sign the document.
(11) 'Principal' has the same meaning as in Section 26-1-5.
(12) 'Public key certificate' means an electronic credential that is used to identify an individual who signed an electronic record with the certificate.
(13) 'Record' means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and that is retrievable in perceivable form.
(14) 'Sole control' means at all times being in the direct physical custody of an electronic notary public or safeguarded by the electronic notary with a password or other secure means of authentication.
(15) 'Tamper evident' means that any change to a record shall provide evidence of the change.
(16) 'Verification of fact' means a notarial act in which an electronic notary reviews public or vital records, or other legally accessible data, to ascertain or confirm any of the following facts:
(a) a date of birth, death, marriage, or divorce;
(b) the name of a parent, a marital partner, offspring, or a sibling; or
(c) any matter authorized for verification by a notary by other law or rule of this State.
Section 26-2-10. The provisions of Chapters 1 and 3 of this title apply to all acts authorized pursuant to this chapter unless the provisions of Chapters 1 and 3 directly conflict with the provisions of this chapter. In that case, the provisions of this chapter control when applied to electronic notaries public and electronic notarial acts.
Section 26-2-20. (A) A notary public commissioned in this State may become an electronic notary public in accordance with this section. Before a notary public performs an electronic notarization, the notary public must register with the Secretary of State in accordance with the rules for registration as an electronic notary public and must identify the technology that he intends to use, which must conform to any rules or regulations adopted by the Secretary of State. A registration fee of fifty dollars must be submitted to the Secretary of State with the registration form to be used by the Secretary of State to administer the provisions of this chapter.
(B) Unless terminated pursuant to Section 26-2-140, the term of registration to perform electronic notarial acts shall begin on the registration starting date set by the Secretary of State and shall continue as long as the notary public's current commission remains valid.
(C) An individual registering to perform electronic notarial acts shall submit to the Secretary of State an application in a format prescribed by the Secretary of State that includes:
(1) proof of the successful completion of the course and examination required pursuant to Section 26-2-30;
(2) the disclosure of any and all license or commission revocations or other disciplinary actions against the individual; and
(3) any other information, evidence, or declarations required by the Secretary of State.
(D) Upon the individual's fulfillment of the requirements for registration under this chapter, the Secretary of State shall approve the registration and issue to the individual a unique registration number.
(E) The Secretary of State may reject a registration application if the individual fails to comply with any section of this chapter.
Section 26-2-30. (A) Before performing electronic notary acts, an electronic notary public shall take a course of instruction of sufficient length to ensure that the electronic notary public understands his duties and responsibilities, as determined and approved by the Secretary of State, and shall pass an examination of this course.
(B) The content of the course and the basis of the examination must be notarial laws, procedures, technology, and ethics as they pertain to notarizations and electronic notarizations.
Section 26-2-40. The following notarial acts may be performed electronically:
(1) acknowledgments;
(2) oaths and affirmations;
(3) attestations and jurats;
(4) signature witnessing;
(5) verifications of fact;
(6) certification that a tangible copy of an electronic record is an accurate copy of the electronic record; and
(7) any other acts authorized by law.
Section 26-2-50. (A) An electronic notary public shall perform an electronic notarization only if the principal:
(1) appears in person before the electronic notary public at the time of notarization; and
(2) is personally known to the electronic notary or identified by the electronic notary through satisfactory evidence as defined in Chapter 1 of this title.
(B) In performing electronic notarial acts, an electronic notary public shall adhere to all applicable rules governing notarial acts provided in Chapter 1 of this title.
Section 26-2-60. (A) When performing an electronic notarial act, an electronic notarial certificate must be attached to, or logically associated with, the electronic document by the electronic notary public and must include:
(1) the electronic notary public's name exactly as stated on the commission issued by the Secretary of State;
(2) the electronic notary public's electronic seal;
(3) the expiration date of the electronic notary public's commission;
(4) the electronic notary public's electronic signature; and
(5) completed wording appropriate to the particular electronic notarial act, as prescribed by law.
(B) All components in subsection (A)(2) through (5) must be immediately perceptible and reproducible in the electronic record to which the electronic notary public's electronic signature is attached, such that removal or alteration of a component is tamper evident and will render evidence of alteration of the document containing the electronic notarial certificate, which may invalidate the electronic notarial act. If an electronic seal is not used, then the words 'Electronic Notary Public' and the words 'State of South Carolina' must still be attached.
(C) An electronic notary public's electronic signature or electronic seal is considered to be reliable if it is:
(1) unique to the electronic notary public;
(2) capable of independent verification;
(3) retained under the electronic notary public's sole control;
(4) attached to or logically associated with the electronic document; and
(5) linked to the data in such a manner that any subsequent alterations to the underlying document or electronic notarial certificate are tamper evident and may invalidate the electronic notarial act.
(D) The electronic seal of an electronic notary public shall contain the:
(1) name of the electronic notary public exactly as it is spelled on the electronic notary public's commission;
(2) title 'Notary Public';
(3) words 'State of South Carolina';
(4) registration number indicating that the electronic notary public may perform electronic notarial acts; and
(5) expiration date of the electronic notary public's commission.
(E) The electronic seal of an electronic notary public may be a digital image that appears in the likeness or representation of a traditional physical notary public seal. The electronic seal of an electronic notary public may not be used for any purpose other than performing electronic notarizations under this chapter.
(F) Only the electronic notary public whose name and registration number appear on an electronic seal shall generate that electronic seal.
Section 26-2-70. (A) An electronic notary public may charge the maximum fee for performing an electronic notarial act specified in subsection (B), charge less than the maximum fee, or waive the fee.
(B) The maximum fees that may be charged by an electronic notary public for performing electronic notarial acts are:
(1) for acknowledgments, ten dollars per signature;
(2) for oaths and affirmations, ten dollars per signature;
(3) for attestations and jurats, ten dollars per signature;
(4) for signature witnessing, ten dollars per signature;
(5) for verifications of fact, ten dollars per signature; and
(6) for any other acts authorized by law, ten dollars per signature.
(C) An electronic notary public may charge a travel fee when traveling to perform an electronic notarial act if:
(1) the electronic notary public and the person requesting the electronic notarial act agree upon the travel fee in advance of the travel; and
(2) the electronic notary public explains to the person requesting the electronic notarial act that the travel fee is both separate from the notarial fee prescribed by subsection (B) and neither specified nor mandated by law.
(D) An electronic notary public who charges fees for performing electronic notarial acts shall conspicuously display in all of the electronic notary public's places of business and Internet websites, or present to each principal or requester of fact when outside these places of business, an English-language schedule of maximum fees for electronic notarial acts, as specified in subsection (B). A notarial fee schedule may not appear or be printed in smaller than ten-point type.
Section 26-2-80. (A) An electronic notary public's electronic signature, in combination with his electronic seal, must be used only for the purpose of performing electronic notarial acts.
(B) An electronic notary public shall use an electronic notarization system that complies with this chapter and that has been registered with the Secretary of State to produce the electronic notary's electronic signature and electronic seal in a manner that is capable of independent verification.
(C) An electronic notary public shall take reasonable steps to ensure that no other individual may possess or access an electronic notarization system in order to produce the electronic notary public's electronic signature or electronic seal.
(D) An electronic notary public shall keep in his sole control all or any part of an electronic notarization system for which the exclusive purpose is to produce the electronic notary public's electronic signature and electronic seal.
(E) The Secretary of State shall promulgate regulations necessary to establish standards, procedures, practices, forms, and records relating to an electronic notary public's electronic signature and electronic seal. The electronic notary public's electronic seal and electronic signature must conform to all standards adopted by the Secretary of State.
Section 26-2-90. (A) An electronic notary public shall create and maintain an electronic journal of each electronic notarial act. For every electronic notarial act, the electronic notary public shall record the following information in the electronic journal:
(1) the date and time of the electronic notarial act;
(2) the type of electronic notarial act;
(3) the title or a description of the record being notarized, if any;
(4) the printed full name of each principal;
(5) if identification of the principal is based on personal knowledge, a statement to that effect;
(6) if identification of the principal is based on satisfactory evidence of his identity pursuant to Section 26-1-5(17), a description of the evidence relied upon and the name of any credible witness or witnesses;
(7) the address where the notarization was performed, if the notarization was not performed at the electronic notary public's business address;
(8) if the notarial act is performed electronically, a description of the electronic notarization system used; and
(9) the fee, if any, charged by the electronic notary.
(B) An electronic notary public may not record a Social Security number in the electronic journal.
(C) An electronic notary public may not allow the electronic journal to be used by any other notary public and may not surrender the electronic journal to an employer upon the electronic notary public's termination of employment.
(D) Any party to the notarized transaction or party with a legitimate interest in the transaction may inspect or request a copy of an entry or entries in the electronic notary public's electronic journal, provided that:
(1) the party specifies the month, year, type of record, and name of the principal for the electronic notarial act, in a signed physical or electronic request;
(2) the electronic notary public does not surrender possession or control of the electronic journal;
(3) the party is shown or given a copy of only the entry or entries specified; and
(4) a separate new entry is made in the electronic journal, explaining the circumstances of the request and noting any related act of copy certification by the electronic notary public.
(E) An electronic notary public may charge a reasonable fee to recover any cost of providing a copy of an entry in the electronic journal of notarial acts. An electronic notary who has a reasonable and explainable belief that a person requesting information from the electronic notary's electronic journal has a criminal or other inappropriate purpose may deny access to any entry or entries.
(F) All electronic notarial records required by statute or regulation may be