Washington Code 42.45.280 – Electronic records notary public
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(1) The definitions in this subsection apply throughout this section unless the context clearly requires otherwise.
Terms Used In Washington Code 42.45.280
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Oath: A promise to tell the truth.
- person: may be construed to include the United States, this state, or any state or territory, or any public or private corporation or limited liability company, as well as an individual. See Washington Code 1.16.080
(a) “Communication technology” means an electronic device or process that:
(i) Allows an electronic records notary public and a remotely located individual to communicate with each other simultaneously by sight and sound; and
(ii) When necessary under and consistent with other applicable law, facilitates communication with a remotely located individual with a vision, hearing, or speech impairment.
(b) “Foreign state” means a jurisdiction other than the United States, a state, or a federally recognized Indian tribe.
(c) “Identity proofing” means a process or service by which a third person provides an electronic records notary public with a means to verify the identity of a remotely located individual by a review of personal information from public or private data sources.
(d) “Outside the United States” means a location outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, and any territory, insular possession, or other location subject to the jurisdiction of the United States.
(e) “Remotely located individual” means an individual who is not in the physical presence of the electronic records notary public who performs a notarial act under subsection (3) of this section.
(2) A remotely located individual complies with RCW 42.45.040 by using communication technology to appear before an electronic records notary public.
(3) An electronic records notary public located in this state may perform a notarial act using communication technology for a remotely located individual if:
(a) The electronic records notary public:
(i) Has personal knowledge under RCW 42.45.050(1) of the identity of the remotely located individual;
(ii) Has satisfactory evidence of the identity of the remotely located individual by a verification on oath or affirmation of a credible witness appearing before and identified by the electronic records notary public under RCW 42.45.050(2); or
(iii) Has obtained satisfactory evidence of the identity of the remotely located individual by using at least two different types of identity proofing;
(b) The electronic records notary public is reasonably able to confirm that a record before the electronic records notary public is the same record in which the remotely located individual made a statement or on which the individual executed a signature;
(c) The electronic records notary public, or a person acting on behalf of the electronic records notary public, creates an audiovisual recording of the performance of the notarial act; and
(d) For a remotely located individual located outside the United States:
(i) The record:
(A) Is to be filed with or relates to a matter before a public official or court, governmental entity, or other entity subject to the jurisdiction of the United States; or
(B) Involves property located in the territorial jurisdiction of the United States or involves a transaction substantially connected with the United States; and
(ii) The act of making the statement or signing the record is not prohibited by the foreign state in which the remotely located individual is located.
(4) If a notarial act is performed under this section, the certificate of notarial act required by RCW 42.45.130 and the short form certificate provided in RCW 42.45.140 must indicate that the notarial act was performed using communication technology.
(5) A short form certificate provided in RCW 42.45.140 for a notarial act subject to this section is sufficient if it:
(a) Complies with rules adopted under subsection (8)(a) of this section; or
(b) Is in the form provided by RCW 42.45.140 and contains a statement substantially as follows: “This notarial act involved the use of communication technology.”
(6) An electronic records notary public, a guardian, conservator, or agent of an electronic records notary public, or a personal representative of a deceased electronic records notary public shall retain the audiovisual recording created under subsection (3)(c) of this section or cause the recording to be retained by a repository designated by or on behalf of the person required to retain the recording. Unless a different period is required by rule adopted under subsection (8)(d) of this section, the recording must be retained for a period of at least ten years after the recording is made.
(7) Before an electronic records notary public performs the electronic records notary public’s initial notarial act under this section, the electronic records notary public must notify the director that the electronic records notary public will be performing notarial acts and identify the technologies the electronic records notary public intends to use. If the director has established standards under subsection (8) of this section and RCW 42.45.250 for approval of communication technology or identity proofing, the communication technology and identity proofing must conform to the standards.
(8) In addition to adopting rules under RCW 42.45.250, the director may adopt rules under this section regarding performance of a notarial act. The rules may:
(a) Prescribe the means of performing a notarial act involving a remotely located individual using communication technology;
(b) Establish standards for communication technology and identity proofing;
(c) Establish requirements or procedures to approve providers of communication technology and the process of identity proofing; and
(d) Establish standards and a period for the retention of an audiovisual recording created under subsection (3)(c) of this section.
(9) Before adopting, amending, or repealing a rule governing performance of a notarial act with respect to a remotely located individual, the director must consider:
(a) The most recent standards regarding the performance of a notarial act with respect to a remotely located individual adopted by national standard-setting organizations and the recommendations of the national association of secretaries of state;
(b) Standards, practices, and customs of other jurisdictions that have laws substantially similar to this section; and
(c) The views of governmental officials and entities and other interested persons.
[ 2019 c 154 § 1.]
NOTES:
Effective date—2019 c 154: “This act takes effect October 1, 2020.” [ 2019 c 154 § 10.]