Nebraska Regulatory Update

Nebraska Regulatory Update

The Nebraska Secretary of State recently enacted rules (“Rules”) to implement the Notary Public Act (“Act”), effective June 24, 2017.  The Act was reported on in a memo dated May 31, 2017 and is effective July 1, 2017.

 

Nebraska Rules Title 433 Chapter 7

 

“Secretary” means the Nebraska Secretary of State and his or her designated staff.

 

“Applicant” means a person applying for registration as a Nebraska electronic notary public.

 

“Approved Electronic Notary Solution Provider” means a person or entity approved to provide an Electronic Notarization System by the Secretary pursuant to the Act.

 

“Biometric Authentication” means proving the identity of a user by requiring verification of the user’s identity through technologies that require measurement and analysis of one or more human physiological or behavioral characteristics of the user in order to access and use an electronic notarization system. Biometric authentication technologies include fingerprint scanning devices, retinal scanning devices, and handwriting analysis devices.

 

“Electronic Notarization System” means a set of applications, programs, hardware, software, or technology designed to enable a notary to perform electronic notarizations.

 

“Independently Verifiable” means capable of government or third-party authentication of a notarial act, a notary’s identity, and a notary public’s relevant authority.

 

“Password Authentication” means requiring the user to enter a secret word, phrase, or symbol set in order to access and use an electronic notarization system.

 

“Token Authentication” means requiring use of a physical device in addition to a password or personal identification number (“PIN” number) in order to access and use an electronic notarization system. Physical devices used in token authentication technologies include magnetic cards or “smart cards” and Universal Serial Bus (USB) memory sticks or “USB keys”.

 

“Under the exclusive control of the notary public” or “Under the notary public’s sole control” means accessible by and attributable solely to the notary public to the exclusion of all other persons and entities, either through being in the direct physical custody of the notary public or through being secured with one or more biometric authentication, password authentication, token authentication, or other authentication technologies in an electronic notarization system provided by an approved electronic notary public solution provider approved pursuant to the Act.

 

An applicant for registration under the Act must specify the technology the notary public intends to use to perform an electronic notarial act which must be provided by an electronic notary solution provider approved by the Secretary (the Rule sets forth application requirements for any person or entity applying for designation as an approved electronic notary solution provider).  An applicant must also provide:

  • Verification that the applicant holds a valid Nebraska notary public commission and continues to meet the qualifications to hold the notary public commission;
  • Verification that the applicant is in compliance with all provisions of the Act;
  • Verification of the passage of the required course of instruction and examination; and
  • Any other information requested by the Secretary to prove the qualifications of the applicant.

 

A notary applying to renew registration as an electronic notary public must so indicate on their notary public renewal application and pay the fee for registration as an electronic notary public, in addition to the fee for renewal of his or her notary public commission.

 

The electronic notary public signature and seal must be:

  • Independently verifiable and unique to the electronic notary public; and
  • Retained under the electronic notary public’s sole control.

 

When the electronic notary public performs an electronic notarization, the electronic signature and electronic seal used by the electronic notary must be accessible by and attributable solely to the electronic notary public to the exclusion of all other persons and entities for the entire time necessary to perform the electronic notarization.  The electronic notary public signature and electronic seal must be attached or logically associated with the document, linking the data in such a manner that any subsequent alterations to the underlying document or electronic notary certificate are observable through visual examination.

 

An image of the electronic notary’s handwritten signature and electronic seal must appear on any visual or printed representation of an electronic notary public certificate regardless of the technology being used to affix the electronic notary public’s electronic signature and electronic seal.

 

The perimeter of the electronic notary seal must contain a border such that the physical appearance of the seal replicates the appearance of an inked seal on paper.  It must also have, within its border, the electronic notary’s name exactly as commissioned, the words “Electronic Notary Public”, the words “Nebraska” and the commission expiration date.

 

When an electronic notary public performs an electronic notarization, the principal and the electronic notary public must be in each other’s physical presence during the entire electronic notarization so that the principal and the electronic notary public can see, hear, communicate with, and give identification documents to each other without the use of electronic devices such as telephones, computers, video cameras, or facsimile machines.

 

Each electronic signature requiring notarization and attestation in the form of an acknowledgment must be individually affixed to the electronic document by the principal signer and acknowledged separately by the principal signer, except in the following situation:

  • The notarized document is executed on behalf of:
    • Any foreign or domestic:
      • Corporation, non-profit corporation, professional corporation;
      • Limited liability company;
      • Unincorporated association or partnership;
      • Business trust, estate, partnership, trust; or
    • The United States, any state, or any foreign government.
  • The notarized document does not adversely affect the claim, right or obligation of another.

 

Neither the employer nor any of the employer’s employees or agents may use or permit the use of an electronic notary seal or signature by anyone other than the authorized electronic notary public to whom it is registered.

 

Access to electronic notary signatures and electronic notary seals must be protected by the use of a password authentication, token authentication, biometric authentication, or other form of authentication approved by the Secretary.

 

An electronic notary public must keep a journal of all electronic notarizations he or she performs and must present this journal to the Secretary upon written request.

 

The fee for registering or re-registering as an electronic notary public is $100.

 

The Rules also set forth the approved course of study for electronic notaries public and provides the application forms for registration as an electronic notary public.